District Court New South Wales Medium Neutral Citation: R v Tukuafu [2022] NSWDC 671 Hearing dates: 22 November 2022 Date of orders: 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 8 years with a non-parole period of 5 years. Catchwords: CRIME – Specially aggravated B&E and commit serious indictable offence -wound - Supply prohibited drug SENTENCING - Relevant factors on sentence – multiple offences - very serious harm to the victim of the wounding - young offender - deprived background - early guilty plea- negative impact of time spent in juvenile detention considered - impact of previous trauma on offender - offences committed on parole and subject to ICO - Form 1 matters- institutionalised offender Legislation Cited: Crimes (Sentencing Procedure) Act 1999. Category: Sentence Parties: Siaosi Tukuafu (the offender) Director of Public Prosecutions Representation: Solicitors: Mr N Ashby, Solicitor Advocate, Legal Aid NSW (for the offender) Ms S Knox (for Director of Public Prosecutions) File Number(s): 2021/00224165; 2021/00251527 SENTENCE – EX TEMPORE REVISED Introduction 1. Siaosi Tukuafu is still only a young man. He was born in February 2000. His background as a child did not help him form prosocial attachments in the community. His life has been formed by associations with people who commit crimes against our community and by his regular incarceration in juvenile institutions and now gaols. He has never had a chance to lead a normal life in our community. 2. When Tukuafu was released to parole on 19 August 2020, he was subject to the fundamental condition of parole, that he be of good behaviour. He was not of good behaviour. Instead of keeping to the conditions of his parole, he continued his association with other and older criminals. He joined a criminal group supplying illicit drugs to the community. Soon after his release he committed several serious offences, including the invasion of a house in Western Sydney, which had very serious consequences. 3. He entered guilty pleas in the Local Court. An aggregate sentence will be imposed today, but I will reduce each indicated sentence by 25% to reflect the utilitarian value of those early plea. Because there must be some accumulation of penalty, I will take care that the benefit of that reduction is not be eroded by the process of accumulation. A home invasion in Horsley 1. On 17 October 2020, just before midnight, Tukuafu and another man went to a home in Horsley. A man and a woman living there with their two-year-old. The male saw two people walking up towards his door. He was not expecting visitors. He opened the door but left the screen door shut; He said, "What's going on? It's the wrong time to come knocking like this, boy?" He and the offender engaged in conversation. As the male victim turned the light on, Tukuafu ripped open the unlocked screen door and the other man (who is still not known to police) came over the top of him and hit the male victim about three times with a black metal shock absorber. The front door was pushed in with such force it made a hole in the wall behind it. 2. The female victim heard what was going on. She saw both home invaders punch her partner to the head. She attempted to push them out the door, telling them "Get the fuck out of my house." The male victim was saying "What are you doing? Get the fuck out of my house". 3. The unknown offender punched the female victim in the face with his closed fist dropping her to the floor. She got up and was punched again. She described the punch as, hitting her "like a freight train." She said she "saw stars" after that. 4. The male victim grabbed Tukuafu by his shirt and punched him a few times to the face. At this point Tukuafu produced a knife and stabbed the male victim in the upper left chest. They fell to the ground and during their struggle the male victim managed to get a chokehold on Tukuafu. 5. The other man asked the male victim to let the offender go. A standoff then developed during which both the offender and the other man dropped their weapons. 6. The female victim got off the floor but as she did, she was kicked one more time to the face. She said, "What the fuck do you want?". The offender said, "Just get the fuck out of here or we're going to kill you. Just go or we will kill you". She ran and called Triple‑0. 7. At this point the offender picked up a can of deodorant and used it to spray the male victim in the face. He went to the ground and curled up. While the unknown male held the male victim down, Tukuafu used a power board from the house to strike him about the head. The victim was still yelling "What the fuck do you think I do? What are you after?". 8. A demand was made for money. And, as the victim's two-year-old child watched on the two men left the house. The offender left his DNA on the power board. 9. Police and ambulance were called. The male victim was airlifted to St George Public Hospital, where he was placed in an induced coma. He suffered a punctured lung, which required a drain to be put in his chest and staples to close the wounds. 10. The female victim suffered, cuts to her right temple area and bruising to the side of her face with limited movement of her mouth due to pain. 11. At the same time as this offence police were engaged in another unrelated operation involving lawfully intercepted data from a fixed IP address. For understandable operation reasons I am not privy to exactly how all this was done; but they were able to capture message conversation between this offender (using a code name) and others associated with a criminal group to which I will soon refer. 12. The offender was intercepted when he told his confederates that he had "fucked up". He told them that he went to the premises to "back up" the other man, but "things happened quickly and it was pretty ugly." He said "I would have done it proper and balled up or gloved up. It was sloppy and shit and I'll cop it on the chin. I'm going to fight it if I get done, but yeah, it was so dumb, not worth it". He said he saw a 'brother' go inside, "so I had to back him". 13. His version to his mates is not relied upon in any way to undermine or contradict the agreed facts. It is an acknowledgment to his associates that he had done something wrong and had made serious errors of judgment; not just in committing the crime but in how he committed the crime. 14. The male victim provided a Victim Impact Statement to the Court. He indicated that he still suffers anxiety and nightmares and Post-Traumatic Stress Disorder. He has multiple scars and he is seeking treatment for lung function damage. His lung capacity is diminished. He is often short of breath. He says he cannot yet work to full to capacity, and that the incident has affected his family. There have been expenses, including for the helicopter ambulance. His social life has suffered, and his child has suffered. His child fears "bad guys coming and hurting him again". He hopes everything will improve with time and treatment. 15. His partner told me in her Victim Impact Statement (VIS) that she is still fearful, anxious and nervous. She too is suffering symptoms of Post-Traumatic Stress Disorder and is concerned for the anxiety suffered by her child. She is easily frustrated over small things. She misses the easy life she had prior to the offending, and she misses the freedom that she used to have. She concludes, "I doubt I will ever feel completely safe and secure in my home again." Drug supply and Criminal group offences 1. The second series of offences involves three drug supply matters and related offences that are dealt with on the Form 1, Crimes (Sentencing Procedure) Act 1999. 2. The police investigation in relation to encrypted communications began in the local area some time ago. A number of people were targeted. One of them was the principal in this matter, and I will refer to him by that title, as he has matters presently before the Court. 3. The principal established a coordinated criminal network over which he had control. One of the members of this network was the present offender Siaosi Tukuafu. The members of this group were loosely associated with an outlaw motorcycle gang and the present offender became a nominee of that gang's south coast chapter. 4. The three offences are for sentence each involve supply of what are described as "ounces" of cocaine. It is interesting to note that even though we as a community stopped using imperial measures last century, drug dealers still have not gone metric. 5. The first matter relates to a supply of 3 ounces of cocaine on 14 December 2020. The facts set out extracts from the intercepted communications, but in short summary, it appears that this offender, working under direction of the principal, had received the drugs, bagged them up and cut them. He also prepared drugs for sale by his own subordinates. 6. The second matter also involves 3 ounces of cocaine. Primarily that matter relates to this offender holding those drugs on behalf of the principal so that they could then be distributed through one of 'his' runners. The grammar of the agreed facts leaves that passage unclear. I am not sure whether it is the principal's runner or Tukuafu's runner, but this is of little consequence. 7. The third matter relates to 4 ounces of cocaine and discussions about the price the drugs could be sold for, and at what profit. It appears 3 ounces could be sold for $5,700 with an anticipated profit of $700. 8. The agreed facts also include extracts of discussions about the proceeds of the organisation's crimes. Police were able to calculate that those discussions relate to proceeds of crime involving $7,500, $22,300 and $14,200. 9. I will be sentencing for the supply matters. The knowingly deal with the proceeds matter and the participate in criminal group, which help inform those matters, are dealt with on a Form 1. Assessment of Objective seriousness 1. Going back to the earlier matter, the offender is to be sentenced for his entry to the home and the injuries to the male victim. The assault on the female victim although separately charged has now been placed on a Form 1 and I do not sentence for that matter. Although he did not directly inflict injuries to the female victim he is liable for what was done by his co-offender because they were both engaged in the same joint criminal enterprise. 2. Tukuafu went to the home back up a mate, but things rapidly escalated. There was no control shown. The home was invaded late at night and the male victim was repeatedly assaulted as he attempted to defend himself and his family. An improvised weapon was brought and used. A knife was brought and used. The male victim suffered life threatening injuries as a result of the stabbing. His wife and child were present, and they witnessed what occurred. His wife was also assaulted, the matter on the Form 1. Another improvised weapon was used on the head of the male victim. 3. I can find no point or apparent motivation for what occurred. The harm suffered by the male victim and its likely long term physical and psychological consequences make this matter particularly serious. There was some planning, but I also agreed with the self-assessment in the encrypted calls made by Tukuafu that what he did was very unprofessional. 4. On any measure this was a serious example of this type of offence. Both Mr Ashby, who appears for the offender, and Ms Knox, solicitor, for the Director of Public Prosecutions, agree that the matter falls within the fairly broad classification of "middle of the range." Although I am loath to fix matters on some notional and abstract scale, given the position taken by the parties, I agree. In fact, I agree with Ms Knox that it falls more to the upper end if that sort of analysis is made. 5. The drug supply matters were each serious, as they involved the distribution of a relatively large quantity of illicit drugs in our community. Those drugs were distributed for the profit of both Tukuafu and the criminal group to which he was associated. At various stages he bagged and cut the drugs. It seems he had his own runners, but he was also taking money on credit, and as the proceeds offence makes clear, his runners did not always front up with the cash. 6. He also, as the second offence in January 2021 makes clear, stored drugs for his principal, indicating his position in the hierarchy. The third and final matter notes the profit that was going back to the principal and the anticipated profit he was to receive. 7. In all the matters; he was acting under direction, he was subordinate to his principal but doing so for profit, and what he did was part of organised criminal activity. He was not dealing directly with users. 8. Without distributors and store people the big profits that can be made, and I am sure he expected to make, could not be made. 9. While Tukuafu was lower in the hierarchy than his principal, he was above the runners. He was, it would appear an eager apprentice, learning the ropes. He had to pay the principal's bills and then recover what he advanced. He was learning to keep track of his debts and amount owing. Form 1 matters 1. There are Forms 1 attached to the last of the supply matters and to the break and enter. It is appropriate that I deal with them. He has admitted his guilt for those matters. There must be an increase in sentence. That increase recognises the need for personal deterrence and retribution for the crime for sentence. So far as the home invasion is concerned the assault occasion actual bodily harm was a serious example of its type. While it informed in part the objective seriousness of the principal offence, and while I accept that it was his co-offender as part of the joint criminal enterprise who inflicted the injuries, it is a matter that does independently require some increase in the sentence to reflect the need for personal deterrence and retribution. 2. So far as the drug supply matters are concerned all of the matters for sentence were conducted for profit, and what was done required organisation and was part of organised criminal activity. Here the Form 1 matters did inform my assessment of the objective seriousness of each of the supply counts and as such they should not be double counted against the offender. But the gang activity extended beyond the matters for sentence, including the offender's nomination for membership of an outlaw motorcycle gang, and involved other uncharged activity, including apparently discouraging competition from other dealers. While the proceeds matter is part and parcel of the matters for sentence, the gang activity requires some increase in the mater for sentence, for the reasons I have indicated. Other matters 1. The Victim Impact Statements enabled both victims to speak to the harm they suffered. It gave them a voice and what they said will be taken into account. 2. An additional aggravating feature for each of the matters, is that Tukuafu was on parole at the time. 3. The maximum penalty for the drug supplies is 15 years imprisonment. For the specially aggravated break and enter matter the maximum penalty is 25 years imprisonment with a standard non-parole period of seven years. Those maximums and the standard non‑parole period (where applicable) are important guides to the exercise of my sentencing discretion. The maximum and where applicable standard non‑parole period, are important because they invite comparison between this case and others. And I note some cases were put before me by Mr Ashby. 4. However, I do not start with the standard non‑parole period or the maximum and make proportional deductions from it. I do not need to contrast the actual offence where there is a standard non‑parole period with some abstract one. But I do have to set out, as I hope I have done, my assessment of the objective seriousness of these matters. 5. The consistent application of principle requires careful consideration be given to other decisions, particularly those of appellate courts. But ultimately sentencing is discretionary, and every mix of factors in a matter must be weighed and determined individually. No sentence or factual situation is ever precisely the same as some other case. 6. I have to take into account the offender's criminal record. Although most of that offending was dealt with in the Children's Court, it involved serious offending as a child, and that pattern has continued into his adult life. 7. It is important to note the chronology. Tukuafu was released to parole on 19 August 2020, the criminal group offences occurred in October 2020 and continued until his arrest, as evidenced by the encrypted messages. Although that is a matter on the Form 1 and I do not sentence for it, the factual matrix is important. 8. The home invasion occurred in October 2020, and the drug dealing from late 2020 to early 2021. 9. In April 2021 he committed a domestic violence offence and received a custodial sentence. After a short period in custody, that sentence was directed to be served by way of an Intensive Correction Order (ICO). The ICO continued until August 2022. His parole was breached and his ICO was breached because of his failure to properly adapt to normal community life or to follow directions. 10. He failed to engage with Community Corrections. His failure shows an inability to adapt to prosocial life or comply with basic requirements of Community Corrections or Court orders. He engaged in a pattern of aggressive behaviour while on parole. 11. His record is important for three reasons. The first is that it disentitles him to the leniency often given to first offenders. Secondly, it is relevant to determining the proper sentence because it indicates this offending was not an uncharacteristic aberration and demonstrates his continuing disobedience to the law. While his criminal history cannot result in a sentence that is disproportionate to the seriousness of his offending, a more severe penalty is warranted, with additional focus on retribution and deterrence and protection of the community. Thirdly, his record it is relevant to how I formulate the starting date for the sentence. 12. If I take into account, as I must, as an aggravating feature, the commission of offences while on parole it would be double counting were I to simply accumulate this sentence upon the end of his parole period or the end of his revoked intensive correction order. He was arrested on 2 September 2021 and had to serve a period of balance of parole. 13. There must however be some additional punishment for the matters for which he was on parole and the intensive correction order, but at the same time it would not be appropriate to start the sentence on 7 August. I have a discretion to start at any time. I propose to start this sentence after the expiry of the balance of parole period but before the expiry of the intensive correction order, that is after he has served six months. That will be 2 March 2022, and his sentence today will date from that date. Subjective case 1. I have read an insightful reference from Tukuafu's former schoolteacher. She indicates that throughout his young life Tukuafu has not had but sorely needed a sense of family and a sense of belonging. Those needs may have been, she speculates, exploited by the criminals with whom he associated. For a period, she let him stay in her home where she sought to give him a pro-social focus. She believes he "wanted out" but by then it was too late and he was taken into custody. 2. I am indebted to Ms Godbee, who provided a comprehensive psychological report. There is no evidence from the offender in support of it but in a case such as this it was not necessary. The reports foundations seem uncontroversial and are reflected both in the history of offending and the other reports and material before me. 3. As a child Tukuafu witnessed domestic violence in the family home. He received little support from either his mother or father. There are significant abandonment issues. He never had an opportunity to engage through his father in his Tongan culture. It would appear that as a child he had not role positive models. 4. He went into juvenile detention at 14 and from there his associates were people he met in detention. 5. He reports being sexually abused while in detention and Ms Godbee notes that many of his symptoms, including those associated with Post‑Traumatic Stress Disorder, anger and aggression, are commonly found in those who are sexually assaulted in institutions. 6. There is the possibility of an ADHD diagnosis, but Ms Godbee is sceptical of that. What she does document are his issues with trusting anyone. 7. His use and abuse of drugs and alcohol occurred well before he was old enough or mature enough to make rational decisions. And while drug use, here cocaine use, is not an excuse it is a relevant factor when I come to formulate an appropriate sentence. It goes to his prospects of rehabilitation and helps explain the man who committed these offences. 8. Ms Godbee concludes that; Tukuafu may have OCD, that he is institutionalised and that he has some distortions in his thinking about violence. Ms Knox took me to some of his statements to Ms Godbee. Contrary to her submissions, I do not read them as self‑justificatory statements nor as Ms Godbee putting those statements as justification or excuse. Rather, Ms Godbee appears to be, in her objective fashion, noting Tukuafu's distorted thinking about violence and self‑defence. That distorted thinking, she believes, requires treatment and management. 9. She notes how his dysregulated behaviour (by that she means the commission of crimes, meeting with criminals and being part of a criminal group) can in turn lead to further trauma. At para [40] she says: "… after cycling in and out of custody for most of his teens Mr Tukuafu entered adulthood as a traumatised young man with substance abuse issues, distorted believes about violence, the belief that the belonged with other antisocial peers and a feeling of being unwanted. These factors all left him vulnerable to gang associations." 1. Positively, she submits (at [42]), it appears he is beginning to recognise his problems with substance use and violence. 2. She notes that these are entrenched patterns for him and that he has not previously engaged in any intervention to address them. She recommends that; he participate in the Violent Offenders Treatment Program and that he engages in individual psychological treatment in order to reduce his symptoms of depression and OCD. If he is to earn parole, he will need to engage in programs to deal with longstanding drug abuse issues. 3. There is a helpful Juvenile Justice report before the Court. It appears that at times Tukuafu can be likeable and engaging. He can make a positive impression and he has, if he matures, some prospects for the future, if he has some prosocial supports. That report helped inform this judgment. 4. I can find no evidence of remorse or insight, I do not think he is capable of it, and gaol is unlikely to foster such pro-social feelings. The best I can say he has accepted responsibility for his crimes. 5. I note his history of trauma. On balance I am prepared to accept, given the history, there was an episode of abuse while in juvenile detention. I note that such assaults can have a profound and highly detrimental impact on the children assaulted and that is relevant by way of the mitigation. The Court should not devalue the impact of any particular traumatic event and such a background is always relevant in matters such as this. 6. I take into account his background as a child. I take into account the impact of juvenile detention on him. I am prepared to accept as a matter in reduction of sentence that his moral culpability is less than a person whose background was not so blighted. It will be given full weight as it does reduce his moral culpability and it is also a matter that has to be considered when it comes to what is to happen in the future. 7. Tukuafu is still young. He is still very immature. He has never had a chance to grow up in the community. The law recognises the potential for cognitive, emotional and psychological immaturity as a young person to contribute to offending. It is also recognised that emotional maturity and impulse control develop progressively during adolescence and that some young people may not be fully developed until they are in the mid‑twenties. 8. Tukuafu must be removed from the community, but removal can only achieve short term protection. He will have to be returned to the community and protection of the community is helped by the successful rehabilitation of offenders, particularly the young. As he matures I hope that he can learn to conform to society's norms but his learning will have to take place in custody. Synthesis 1. I am required to impose or indicate appropriate sentences for each offence. I am required to structure the aggregate sentence so that the overall sentence is just and appropriate to the offender's crime. There must be some accumulation. The totality principle applies here. It recognises that sometimes if I simply add the penalty for one offence on the other the result would be an unduly harsh or crushing sentence. The simple arithmetical addition of one appropriate sentence on the other can exceed what is required. 2. I need to assess the overall criminality and, if necessary, make downwards adjustments to achieve an appropriate relativity between each crimes objective seriousness, the totality of the offender and the offender's subjective case. At the same time, I cannot give some sort of discount for multiple offending. 3. Tukuafu's future motivation is going to be important, and I am talking directly to you sir. What you have learnt and experienced in juvenile detention has led to you ending up in adult gaols and committing serious offences, which will see the bulk of your youth spent in gaol. 4. You have to be punished for what you did. Too long a punishment could operate to fully institutionalise you. What that means is you are used to only gaol and there are strong signs that now you only feel comfortable in gaol as you are not used to living lawfully in the community. If you become institutionalised then sadly, as you will know from some of the older inmates, you could become one of those people who is constantly return to gaol. I am concerned for the community if this occurs because if you return to gaol it means you have offended against someone else in the community, as you have done many times in the past. 5. The value of any positive steps you might take can be diminished if you lose hope of a normal life after the end of your sentence. But what seems a proportionate and just sentence often depends on the perspective of the observer, whether they are the victim, the community, an appeal court or the offender. 6. Ms Knox submitted that your prospects were poor; past behaviour being a good indication of future behaviour. While she accepted what was set out in the defence written submissions as to matters of principle, she said you are now in gaol facing a lengthy sentence with no plan, no prospects, no positive statements that indicate that you will do anything more than do your time, get out and commit further offending. 7. Mr Ashby, on the other hand, says that you will accept a harsh penalty being imposed upon you but that you must be given some hope and some incentive to work towards your release. You have pro-social friends in the community. He urges upon me a finding of special circumstances; that is, to structure the sentence to make sure the minimum time you spend in custody reflects what you did but to allow you time to be supervised in the community as soon as practicable. 8. You are at risk of future institutionalisation, and I will be accumulating this sentence six months on when you first went into custody. You do need treatment for trauma related mental health conditions. You do need assistance dealing with your drug abuse problem. 9. You will serve your sentence, and have for the past since September last year, served your sentence subject to the COVID restrictions. I have heard a lot of evidence about it being harder in gaol now than it has ever been before. You will be subject to lockdowns and visits may be interfered with; programs will be interfered with. I will take those matters into account. You will need help learning to lead a normal community life after a lengthy sentence. You have never had that opportunity. 10. I am mindful that the minimum period you should be imprisoned must properly reflect the gravity of what you did and all the purposes of sentencing. I am prepared to give you an opportunity. Studies reveal that people who get parole supervision are less likely if they take up and engage, as you have failed to do in the past with Community Corrections. 11. You have to earn that parole. Ultimately it will be up to the State Parole Authority who will consider community safety issues before you could be released. If you do not take the assistance offered, if you do not do every program you are offered, if you do not engage with whatever is offered in gaol then it is highly unlikely you will get parole. And, frankly, if you do not mature and grow up while you are in custody you can look forward to spending the rest of your life in custody. And, in future, judges will be less and less sympathetic if more drug, and particularly violent crimes, are committed. 12. Synthesising all those matters. There must be significant penalties for each of the offences for sentence. There must be some accumulation as between the offences. There should be significant concurrency so far as the drug supply matters because they all relate to instances of the same type of continuing criminal behaviour. 13. I have taken into account the matters on the Form 1. I have to give you the full benefit of your pleas of guilty and the matters in your subjective case that require, in your case, significant mitigation of the otherwise appropriate sentences. Orders 1. I have to indicate individual sentences. 1. For the first count of supply prohibited drug, I indicate a sentence of two years and three months. 2. For the second count I indicate a sentence of two years and three months. 3. For the third count, sequence 8, I take into account the Form 1, I indicate a sentence of two years and six months. 4. For the specially aggravated break and enter offence takes into account the matter on the Form 1. I indicate a sentence of six years and nine months imprisonment. There will be a non‑parole period indicated of years and three months. 1. The total aggregate sentence of eight years imprisonment will commence on 2 March 2022. There will be a non‑parole period of five years and a parole period of three years. That sentence will commence on 2 March 2022 and parole on 1 March 2027. The total sentence will expire on 1 March 2030. Total sentence eight years, accumulated by six months, minimum five years, eligible for consideration for release to parole on 1 March 2027. AUDIO VISUAL LINK CONCLUDED AT 4.23PM ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2023