R v FAUMUINA [2022] NSWDC 629

District Court New South Wales

Medium Neutral Citation: R v FAUMUINA [2022] NSWDC 629 Hearing dates: 8 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Criminal Before: NOMAN SC DCJ Decision: Convicted of both offences. COUNT 1: Sentenced to a term of imprisonment of 5 years and 8 months with a non-parole period of 3 years and 4 months to date from 24 May 2021. Eligible for release to parole on 23 September 2024. COUNT 2: Sentenced to a term of imprisonment of 7 years and 7 months with a non-parole period of 4 years and 3 months to date from 24 November 2022. Eligible for release to parole on 23 February 2027. The effective overall sentence is one of imprisonment of 9 years and 1 months with a non-parole period of 5 years and 9 months. Catchwords: SENTENCING - causing grievous bodily harm being reckless as to causing actual bodily harm - causing grievous bodily harm with intent to cause grievous bodily harm – imprisonment – standard non-parole period Legislation Cited: Crimes Act 1900 (NSW) Category: Sentence Parties: Rex; Puleiaava Terry FAUMUINA Representation: Counsel: Defence: Mr Stewart Solicitor: Crown: Mr Amvrazis File Number(s): 2021/53447

JUDGMENT 1. The offender, Terry Faumuina, used a machete to seriously injure two persons he knew. These offences, although sharing some similarities, were committed 17 months apart. 2. On 3 March 2019 the offender met the first victim, Adrian Stephens. Mr Stephens offered the offender and others to attend his home to socialise. They returned the following morning, 4 March 2019, and remained socialising over a number of hours. When they left around 1pm it was on the understanding they would return for dinner. Mr Stephens showered and fell asleep on his lounge. All windows and doors of his home was locked. One of the other men sent messages to the offender between 5.11 and 5.27pm. Each message read "come in were you uce [sic]". 3. Mr Stephens was woken by pain in his upper right limb, which felt as though "[his] right arm had been snapped". This is one of the injuries supporting the offence. He saw blood everywhere and was unable to move his hand; "it just sat there". He saw the offender approximately 2-3 metres in front of him holding a machete which had a blade approximately 60 cm in length. He also saw another man standing behind the offender. 4. The offender pointed the blade of the machete at him. He asked to be told where something was. Mr Stephens did not know what was being sought. Both men commenced searching. Mr Stephens said "you can look through whatever you want, go through the whole house, I swear on my kids I have nothing." 5. Mr Stephens was very shocked and scared by what was happening. His right arm was throbbing, and blood was coming out of the right side of his chest, from a laceration next to his nipple. He began to "doze off". 6. The offender hit Mr Stephens's left arm with the machete blade. The offender then pointed the machete toward him and said, "don't you fucking go to sleep". The offender threatened to further harm Mr Stephens if he moved. He thought that he was going to die. He saw that his legs and stomach were covered in blood, blood spattered across his whole body, and flicks of blood were on the window, the lounge and the coffee table. 7. Using his left hand, Mr Stephens raised his right hand and inspected it. He saw a gaping wound on the back of his hand. He could see his veins, ligaments and tendons, and blood was coming out of the laceration "like a tap". This wound was later assessed by medical staff and identified as a 4cm laceration on the (back) of his right hand penetrating the dermis and epidermis and exposing the tendon. Surgery was required to repair the ligaments and tendons in his hand which had been severed or damaged. 8. While lying on the couch he was unable to move his right arm. He closed his eyes. The offender hit his right arm near his shoulder with the machete blade and said "rise and shine, you're not going to sleep". He thought that the offender was going to kill him. 9. The victim was attacked and injured in his own home. This is an aggravating circumstance. He was in a locked home and asleep. He should have been able to feel safe in his own home and to fall asleep without incident. That he was attacked whilst asleep, and therefore vulnerable and unable to protect himself for the first hit, elevates the seriousness. He posed no threat. He was attacked whilst asleep with a serious weapon, a machete. The use of a weapon to commit the offence is of significance. I do not accept the facts allow for the machete to have been in the victim's home. He does not state he recognized it and provides a description. I am satisfied the offender entered with the machete and immediately used it. I am unable to determine how long prior to entering the home he was in possession of it. The weapon was used more than once and separated in time. All the blows were not in quick succession, although the overall offence presents as being of short duration. There is more than one injury supporting the offence. He evidently attended the home by arrangement with others. The texts refer to meeting. This is suggestive, based on the subsequent presence of all four, of a planned meeting. That does not equate with planning this particular offence. 10. The offender was present with another male, although it is not alleged they were in company. However, the victim was confronted by two males in his home, and both were searching it. The presence of two men would have increased the alarm he felt. 11. Mr Stephens closed his eyes. He heard the voices of two of the males he had met previously with the offender. He opened his eyes and said to one of the males, "I have not taken anything, I haven't touched or stolen nothing, I have nothing of his here" and closed his eyes. the offender said words to the effect of "alright, grab everything" or "clean up". There is no evidence the victim had in fact taken anything. 12. Police later observed a vast amount of blood was located inside the loungeroom. 13. The offender and the other man left. 14. Mr Stephens was unable to move on his own and thought he was going to die. He said to the other two men "who's gonna look after my kids, make sure somebody looks after my kids." 15. These men and a woman drove him to the hospital at about 6.20pm. 16. As well as the injury to his right hand the other injuries supporting the offence are a 7cm laceration on his right arm and a 2cm laceration on his pectoral right chest wall, penetrating the muscle. Non charge-related injuries include a swollen left hand and a 1cm laceration on his left ear. 17. The injuries occasioned to Mr Stephens' right hand, right arm, and chest wall amounted to grievous bodily harm. The plea is on the basis that the offender caused grievous bodily harm whilst he intended to cause actual bodily harm. 18. Mr Stephens told police he was terrified on that day, when he goes to bed this is all he thinks about; he will never go back to Campbelltown again; his life had changed forever; and that every time he closed his eyes, he saw the offender standing with the machete. He suffers from PTSD as a result of the assault and he continues to be medicated for this condition. 19. The next incident occurred the following year. 20. On 30 August 2020, shortly before the second offence, the offender participated in a conversation about this first assault. During that conversation, the offender laughed and agreed he had assaulted him with a machete. 21. The second victim, Castro Kihiu, and the offender were known to one another and had been friends at one time. 22. At approximately 11:00 pm on 30 August 2020 a garage/shed belonging to a drug dealer and friend of the offender was observed alight. Mr Kihiu and a female were nearby and then left the scene. 23. Sometime later the offender arrived as did two males. The second offender was armed with a knife and was fiddling with it while he was in the house. 24. The offender held a conversation with the other offenders, during which they discussed how they were "going to get" Mr Kihiu who they believed was responsible for the fire. 25. At about 1:02 am, the offender and co-offenders approached Mr Kihiu and a friend. Mr Kihiu saw that they had weapons, he told his friend to run. Mr Kihiu ran and was chased by the offender and co-offenders who were all wearing face coverings. 26. One of Mr Kihiu's boots came off while he was running. He unsuccessfully attempted to remove the other boot as it was slowing him down. He jumped into a front yard and tried to jump a second fence however he couldn't get over it. He was approached by the offender and he kicked the offender. The two co-offenders then arrived at the scene. 27. The second offender was armed with a kitchen knife. The offender was holding a machete, which was approximately 30 cm in length. The offender swung and jabbed the machete at Mr Kihiu's leg. Mr Kihiu tried to deflect the blade from hitting him. The unknown male was armed with a small knife and stomped on Mr Kihiu's head. The second offender tried to jab Mr Kihiu with the kitchen knife. 28. Mr Kihiu had his feet up to protect himself. At some point, Mr Kihiu dropped to the ground when he was being hit in the head, to keep his body away from the offenders who were acting jointly. 29. As a result of the assault on him by the offender and co-offenders Mr Kihiu suffered extensive injuries. It is not known which of the offenders inflicted which of the injuries. 30. During the attack, the offenders demanded the victim's phones and watch. He had dropped his phones but handed over his smart watch. 31. Mr Kihiu managed to get away from the males, distracting them by calling out "police are coming, police are coming." An ambulance was called. He felt blood all over him and started to have trouble breathing. Police arrived and tended to his injuries. An ambulance conveyed him to Hospital. 32. As a result of the assault, Mr Kihiu suffered a 4cm by 2cm wound on the right-hand side of his chest which penetrated the skin, muscle and about 15mm into the lung requiring the insertion of a chest tube. The force causing the wound also resulted in a fracture to the 3rd rib on the right-hand side. Without the insertion of a chest tube, he would have progressed to respiratory arrest and death. 33. He also suffered an injury to the branch of the right profunda femoris blood vessel (the deep artery of the thigh) which had active bleeding on presentation to hospital. He lost significant blood requiring a blood transfusion. This injury, if uncorrected, would have led to shock from blood loss and death. 34. He also suffered lacerations to the left upper limb penetrating the epidermis and dermis, 3cm on the dorsal aspect of the base of the 5th digit over the metacarpophalyngeal joint, and a laceration 4cm over the dorsal aspect of the 5th digit of the proximal interphalyngeal joint. There was a 100% laceration of the left little finger ulnar digital nerve. Operative intervention was required to repair the nerve supplying the left little finger. 35. There were additional less serious injuries as a result of the assault involving a 1cm laceration to his forehead, which penetrated the dermis; a 4cm laceration to his right thigh which penetrated the dermis and epidermis and transected the underlying muscle; a 7cm laceration to the right thigh which partially transected the underlying muscle; a 4cm laceration to his right wrist which penetrated the dermis and epidermis, a 5cm laceration to his right palm which penetrated the dermis and epidermis; and a cut to his left ear. 36. He underwent an operation to repair the damage to his right profunda femoris artery, his thigh wounds, his forearm wounds, and his hand wounds. 37. This offence involved planning albeit of no sophistication. The offender and his co-offenders armed themselves and went looking for the victim. The offence was committed by three persons acting together with each liable for the acts of the others. The victim was confronted by the combined force. Weapons were involved, being three bladed weapons. A machete is a significant weapon as are knives. The offender was under the influence of illegal drugs. His possession, and use, of a weapon in the circumstances of drug intoxication elevates the intrinsic danger. The injuries were occasioned in a continuous onslaught. The number of distinct injuries reflects numerous blows. There is more than one injury supporting the offence. 38. The offender and co-offenders returned to where the fire had been. They were panicking and saying, "get in the car, get in the car." The co-offenders still had a knife each. The offender was holding a machete that was old and rusted and he was wiping it with his jumper. They drove off at 1:12 am in the offender's car. 39. During the evening of 31 August 2020, the offender said of the victim 'don't worry about it mate, he's sorted, he's going to be gone for a long time. I promise he won't be back around'. The offender then started laughing to himself. 40. I determine that each offence falls within the mid-range of objective seriousness. 41. The offender was arrested on 24 February 2021. 42. Arising out of the first incident the offender pleaded guilty to an offence of causing grievous bodily harm being reckless as to causing actual bodily harm contrary to s.35[2] Crimes Act. The maximum penalty is 10 years imprisonment and there is a standard non-parole period of 4 years. Arising out of the second incident the offender pleaded guilty to an offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s.33[1][b] Crimes Act. The maximum penalty is 25 years imprisonment and there is a standard non-parole period of 7 years. 43. Both the maximum penalty and the standard non-parole period operate as legislative guideposts and represent the legislature's assessment of the seriousness of the offence. 44. The offender pleaded guilty on a date after the matters were listed for trial. I intend to apply a reduction of 5% after the otherwise appropriate sentence has been determined to reflect the timing of the pleas of guilty. 45. There was a late plea. A plea of itself does not necessarily equate with remorse. The offender has expressed remorse to others including expressed concern for the victims. Those hearsay accounts are provided by family and the psychologist. I observe some attempt to justify his conduct in the report at [10] but observe there is a subsequent expression of remorse. I accept that the offender is remorseful for his conduct now that he is drug abstinent. I observe he has previously expressed remorse for victims of his earlier offending. That has not prevented his reoffending upon further victims. I am cognisant that he committed the second offence in the year after the first. There is no suggestion of an acceptance of his conduct or expressions of remorse in the interim. Those expressions only presented well after charging. 46. He committed victim related crime previously. 47. In 2007 the offender was 18 when he committed a number of robbery offences. Some offending involved weapons. He was in custody from 26 April 2007 until 24 December 2010. He was at liberty for 4 months. During this time, he met his current partner and fathered his eldest son. He also committed property offences of break and enter. He was in custody from 7 April 2011 until 6 April 2015. He therefore missed the first 4 years of his son's life. Upon release he fathered another son and a daughter. His daughter was born after his remand on these offences and therefore he also will miss her early years. He remained at liberty for about 5 ½ years although the first offence occurred four years after his release. On his partner's evidence he was drug abstinent upon his release and employed but succumbed to drug addiction involving methamphetamine, Xanax and Valium in 2017 and entered a period of unemployment that continued until several months before his arrest. 48. The facts for his earlier sentences are disclosed in the Remarks on Sentence or agreed facts. 49. The offender's antecedents, although not lengthy contain serious offending and operate to disentitle him to leniency. 50. I observe there are institutional misconduct offences including for violence, intimidation and drug related. 51. Although he was arrested on 24 February 2021 and has remained in custody, he received a sentence of 6 months for an unrelated drug offence. This sentence was imposed to run from 18 May 2021 until 17 November 2021. This reflects just under 3 months on remand before this sentence commenced and the remand period afterwards. This sentence informs totality and the backdating of the commencement of sentence. I propose that the sentence will commence from 24 May 2021. 52. Dr Pusey, clinical and forensic psychologist, has provided a report. Therein the offender's background is detailed. He had and has supportive parents. There was a limited period of domestic violence perpetrated by his father upon his mother. Otherwise, they present as pro-social. The offender disclosed he was the victim of sexual offending perpetrated by his father's cousin. This presents as having a not unexpected devastating impact upon him. He did not disclose the offending until relatively recently. It was offending committed when he was a child and by a family member and on more than a sole occasion. I well accept the trauma this may occasion. When this occurred is imprecise. There is a suggestion of high school but other accounts in primary school. Either way he was young. The psychologist opined there to be an adjustment disorder present. It is perceived this offending informs his substance abuse. The evidence suggests his use of substances presented initially as a form of self-medication and thereafter became an addiction to poly substances. His ultimate drug of destruction was ice. His partner described the ravages of addiction and that he became someone she did not know. Despite his absence in gaol and his long-term drug abuse she steadfastly remains supportive. He is addressing his addiction in custody. He has done so previously and relapsed in the community and amongst poor peer influences. His partner hopes to move from this area and influence before his release. Her support and his children have not previously proved sufficient to keep him abstinent. He has been referred to treatment whilst in custody. His partner has unsuccessfully sought to encourage rehabilitation. His progress will require his commitment and formal supervision in the community. 53. I determine his background, and its link to substance abuse which is one of his criminogenic factors warrants lessening of his moral culpability. 54. I note his partner is experiencing difficulty in the community raising three children with some but limited support. There are some learning and adaptive issues but not significant. 55. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999 (NSW). 56. One of the purposes is to recognise the harm done to the victim of the crime and the community. There has been a profound impact to the first victim and undoubtedly a deleterious impact to the second victim. 57. The offender's prospects of rehabilitation and of not reoffending are guarded. I note the psychologist links his prospects to addressing his risk factors and ultimately provides a low-moderate risk. This assessment seems optimistic. Personal deterrence still has an important role to play. I note the psychologist advanced a treatment pathway involving insight, abstinence and support. 58. General deterrence and denunciation are important considerations in serious displays of violence particularly those utilising weapons. His mental health issues do not lessen the significance. 59. No sentence other than one of full-time imprisonment is appropriate. 60. Each offence is separate in time and involves a separate victim. Each is serious. No one sentence would encapsulate the separate and serious offending and some accumulation is required. 61. The offender advanced that there should be a finding of special circumstances based on the need for supervision in the community and the conditions in custody. He has fortunately had visits from family whilst on remand. I accept the offender would be assisted by an additional period of support in the community to ensure he progresses with maintaining engagement in addressing his criminogenic factors. Hopefully some courses are undertaken whilst in custody. I accept that the conditions in custody are more onerous due to COVID restrictions, and this should also warrant a variation to the statutory ratio. I also take into account the impact of accumulation. 62. Convicted of both offences. 63. Both sentences are reduced by 5% to acknowledge the pleas of guilty. Some rounding has been applied. 64. Count 1: Sentenced to a term of imprisonment of 5 years and 8 months with a non-parole period of 3 years and 4 months to date from 24 May 2021. Eligible for release to parole on 23 September 2024. This is a variation of the statutory ratio to 58% to reflect my finding of special circumstances. 1. Count 2 Sentenced to a term of imprisonment of 7 years and 7 months with a non-parole period of 4 years and 3 months to date from 24 November 2022. Eligible for release to parole on 23 February 2027. This is a variation of the statutory ratio to 56% to reflect my finding of special circumstances. 1. The effective overall sentence is one of imprisonment of 9 years and 1 months with a non-parole period of 5 years and 9 months. The overall ratio is one of 63%.