R (Cth) v Ratucadre [2024] NSWDC 649

District Court New South Wales

Medium Neutral Citation: R (Cth) v Ratucadre [2024] NSWDC 649 Hearing dates: 29 February , 17 May and 2 August 2024 Decision date: 20 September 2024 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 6 years with a non parole period of 4 years 6 months; disqualified from driving for 12 months; final apprehended violence order made for 10 years after the completion of the term of the non-parole period. Catchwords: CRIME-SENTENCE - use carriage service to threaten to kill- wound person with intent to cause grievous bodily harm (domestic violence related) - contravene prohibition or restriction in an apprehended domestic violence order - drive motor vehicle on road during disqualification period Legislation Cited: Criminal Code (Cth): s474.15(1); Crimes Act 1900 (NSW): ss33(1)(a) and 40; Crimes (Domestic and Personal Violence) Act 2007 (NSW): ss14(1) and 12(2); Road Transport Act 2019 (NSW): s54(1)(a); Crimes Act 1914 (C'th): s16A(2AAA) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; R v De La Rosa [2010] NSWCCA 194 Category: Sentence Parties: Rex (Crown)

Seta Ratucadre (offender) Representation: Ms Curran (Crown Prosecutor)

Mr J. Lang (Counsel for the offender) File Number(s): 2023/15837 Publication restriction: Non publication order made of the name of the victim or any other thing that might identify her, directly or indirectly.

judgment 1. Seta Ratucadre, you appear for sentence today in relation to the following four offences. 2. First, an offence of use carriage service to threaten to kill (H9298354/1 – "the first offence"). This offence involves a contravention of s474.15(1) of the Criminal Code (Cth). The maximum penalty for that offence is imprisonment for 10 years. I note that if this matter had been prosecuted in the Local Court the maximum penalty would have been imprisonment for 2 years. 3. Secondly, an offence of wound person with intent to cause grievous bodily harm, domestic violence related (…354/3 – "the second offence"). This offence involves a contravention of s33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. There is a standard non-parole period of imprisonment for 7 years. 4. Thirdly, an offence of contravening a prohibition or restriction in an apprehended domestic violence order (…354/4 – "the third offence"). This offence involves a contravention of s14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for that offence is imprisonment for 2 years. 5. Fourthly, an offence of drive motor vehicle on road during disqualification period – prior offence (…354/8 – "the fourth offence"). This offence involves the contravention of s54(1)(a) of the Road Transport Act 2019 (NSW). The maximum penalty for that offence is imprisonment for 12 months. There is also an automatic period of disqualification for 12 months and a mandatory minimum period of disqualification of 6 months. 6. I note that, ordinarily, the third and fourth offences would be dealt with in the Local Court, but you have consented to this Court dealing with those offences in these proceedings. 7. In addition to the four offences, you have asked the Court, in fixing the sentence for the second offence, to take into account two matters on a Form 1 which I have certified. Those two matters being: one matter of stealing from the person (…354/9); and one matter of take and drive conveyance (…354/10). 8. The facts surrounding the four offences and the two matters on the Form 1 are contained in a document entitled "Agreed Statement of Facts". They can be stated as follows. 9. Between 2016 and 2021, you were in what is described in that document as an "on and off" intimate relationship with "the victim". The relationship involved domestic violence. 10. Because of that domestic violence, you were served with an apprehended domestic violence order on 23 April 2021. The victim was named as the person in need of protection. One of the conditions of the order was that you were not to approach the victim or contact her in any way unless that contact was through a lawyer. The order was in force until 22 April 2023. 11. On 14 January 2023, in contravention of the order, the victim received several phone calls from you throughout the day in which you repeatedly stated that you wanted to see her. The victim repeatedly told you "No." You were intoxicated at the time of these calls. 12. It is the making of these calls which constitutes the third offence. 13. From about 7:00pm on 14 January 2023, you made further phone calls to the victim. These calls contained threats, including threats that you would kill the victim, particularly by slitting her throat. 14. It is the making of those calls containing those threats which constitutes the first offence. 15. Also during these calls, you demanded that the victim meet you at the McDonald's food outlet at Minchinbury. 16. At about 10:00pm, the victim arrived at those premises, but you were not there. She left because she was worried that you would go to her house where her family was. 17. At about 12:30am on 15 January 2023, the victim returned to McDonald's after you had again spoken to her on the telephone. You and she met in the carpark of those premises. You smelled of alcohol. 18. The victim walked to the entrance of the McDonald's because, as she was fearful about what would next happen, she wanted to be where other people were. You and the victim started arguing outside the McDonald's premises. 19. During the course of that argument, you said to her: "I want to slit your throat. Shut the fuck up. I want to slit your throat"; and "Do you think I fucking give a fuck about going to gaol? I will slit your throat before I got to gaol." 20. In response to these very confronting threats, the victim tried to calm you saying: "Please, please, babe don't do this." 21. These threats that you made to the victim that I have just referred to, which could have been the subject of a criminal charge, have not been so charged. They have been placed before the Court for what has been described by the Crown and your counsel as context. 22. This argument outside McDonald's continued for a couple of minutes during which you kicked the victim to the legs. 23. This conduct could have also been the subject of a criminal charge, but was not. It also has been placed before the Court for context. 24. The victim remained standing after you had kicked her; and you and she continued to talk outside McDonald's for a short time. 25. The victim then saw someone come out of McDonald's and so she went in. You followed her and pulled out a knife which was about 20cm in length. The victim was afraid and called out for help. 26. This conduct also could have been the subject of a number of criminal charges, but was not. It also has been placed before the Court for context. The fact that you had a knife on you, taken with the threats to kill in the first and third uncharged act of threatening to slit the victim's throat, satisfies me, beyond reasonable doubt, that your attack on the victim this night (and not just those acts I have already referred to) was not spontaneous or opportunistic. Rather, it is indicative of a level of premeditation. 27. You and the victim then started to physically fight within the premises. Although it does not expressly state it in the Statement of Agreed Facts, the only rational inference in the circumstances is that you were the aggressor and the victim was defending herself. Amongst other things, you punched her five times to the body with one hand whilst you were holding the knife in another hand. 28. This conduct (i.e., the punching) could also have been the subject of a criminal charge, but was not. It also has been placed before the Court for context. 29. You then dragged the victim by her jumper from the area near the cash register towards the door of the premises saying, in what could only be described as an aggressive fashion, that she was to get into the car. 30. This conduct could also have been the subject of a criminal charge, but was not. It also has been placed before the Court for context. 31. During this struggle, the victim grabbed onto the blade that you were holding and it cut her hands. 32. This conduct could also have been the subject of a criminal charge, but was not. It also has been placed before the Court for context. 33. You then released your grip on the victim's jumper. She stood up. You then grappled with her, as a result of which she fell to the floor. 34. I pause to observe that the whole of this incident (both outside and inside the McDonald's premises) was recorded on CCTV. Amongst other things, that recording shows the sharp contrast in the physiques of you and the victim. You were a tall and powerfully built man (190cm to 195cm in height; and 120kg to 125kg in weight according to Tab 6 of Exhibit A) and she relatively was diminutive. 35. After you let go of the victim's jumper, she tried to wrestle away from your grip. Her jumper came off. You then dragged her by her hair several meters towards the front door of the premises, as a result of which the victim's head collided with the glass door. The collision between the victim's head and that glass door resulted in a 3cm scalp laceration. It is that laceration which is the wounding in the second offence. This is not clearly stated in the Agreed Statement of Facts, but see T12:43, 29 February 2024. 36. In addition to causing the victim's head to collide with the glass door in the manner I have described, by dragging her several meters towards the door by her hair, you pulled some of her hair out. 37. This conduct could also have been the subject of a criminal charge, but was not. It also has been placed before the Court for context. 38. After you let go of the victim's hair, you left the McDonald's premises. 39. Before you did so, you took certain items which had fallen from the victim during her struggle with you, namely: a mobile phone; a house key; and a car key - that car key being to her motor vehicle. 40. It is the taking of those three items which constitutes the steal from the person matter on the Form 1. 41. After you left the premises, the victim, no doubt in great fear, asked the staff if they could lock her in a room because she was afraid that you would return. 42. However, you didn't. Instead, you ran to the victim's car and, using the car key which you had stolen, you got into that car and drove off. 43. It is the taking and driving of that motor vehicle which variously constitute the second matter on the Form 1 and the fourth offence. 44. Unlike physical attack on the victim, I am satisfied, on the balance of probabilities, that the two matters on the Form 1 and the fourth offence were essentially opportunistic. 45. You were arrested in relation to these various matters during the course of 16 January 2023. You have been in custody solely referable to these matters from that date to today. 46. Before you were arrested, on 15 January 2023, the victim went to Westmead Hospital at about 1:40am where she was examined for the scalp laceration to which I have earlier referred, together with the lacerations to her hands. 47. The victim was referred to the Auburn Hospital Hand Clinic on 16 January 2023 and she was operated on that day. The injuries to the victim's hands included lacerations to her left index finger, left ring finger, left little finger and the webbing between her left thumb and left index finger. She also sustained injuries to her right hand including a laceration to her right thumb and index finger. All the lacerations breached the dermis of the skin and were full thickness into the subcutaneous tissue. The victim was discharged from Auburn Hospital on 17 January 2023 with a follow up plan. 48. In addition to the injuries to her hands, the victim also sustained injuries as a result of your actions to her head, neck, arms and legs. They are set out in paragraph 29 of the Statement of Agreed Facts. 49. In early March 2023, following her review by the surgeon who undertook the hand surgery, the victim was required to undergo an extended course of hand therapy which, as at 25 March 2023, was expected to be longer than 6 months. It was also anticipated that she would require further operations to both of her hands to improve the range of motion of her fingers in order to allow her to have more functional use of them. The doctor who operated on the victim's hands is of the opinion that it is unlikely that she will make a total recovery back to pre-injury level, even with extended hand therapy and further surgical revision procedures. 50. During the course of the sentence hearing, the Court was provided with a victim impact statement made by the victim dated 14 May 2024. The statement graphically sets out not only the substantial and permanent physical injuries that she sustained as a result of your attack upon her, but also the very significant psychological consequences. In addition, the impact on the victim's capacity to work and raise, as a single mother, her two children (one of whom has autism) has been profound. The impact upon the victim by the totality of your misconduct that I have referred to is substantially greater than what might unhelpfully be described as the "usual" consequence of such offending. However, the physical injury for which you are criminally responsible, as the facts have been placed before me, is limited to the laceration to the victim's scalp; and the psychological injuries are apparently a combination of all that occurred to her that night – both the one act charged and the mostly uncharged acts. Specifically, the most serious physical injuries, being the hand injuries to the victim, are not the subject of any charge. Whilst the wounding which is the subject of the second offence has not resulted in any lasting physical impairment or disability, the injuries, the subject of the context evidence, have clearly had significant lasting effects. 51. Significantly the first and second offences were committed whilst you were the subject to the apprehended domestic violence order that I referred to at the beginning of these remarks 52. It is necessary for the Court to make a finding of the objective seriousness of each of the four offences for an offence of its kind. In my opinion the first, second and fourth offences are mid-range offences for offences of their kind. The third offence is approximately equidistant between the middle and the bottom of the range. 53. Insofar as the two matters on the Form 1 are concerned, they will result in a slight, but still meaningful, increase in the penalty for the second offence. 54. You did not give sworn evidence in the sentence proceedings. Rather, your subjective circumstances were placed before the Court through a sentencing assessment report dated 2 February 2024 (tab 9 of Exhibit A); the report of a psychologist (Mr Awit) dated 27 February 2024 (Exhibit 1) (Mr Awit was cross-examined on that report by the Crown prosecutor on 17 May 2024 – I did not find that evidence to be of much assistance); and written references from your sister and mother (Exhibits 2 and 3). 55. I have noted the following from the sentencing assessment report: * you were last employed in 2020; * you have a criminal history that is predominantly linked to violence including armed offences and domestic violence; * the severity of your offending is increasing; * you have had five institutional misconduct charges since being on remand; * you apportioned some of the blame to the victim; * you rationalised your behaviour; * you were dismissive of the apprehended domestic violence order; * you had consumed a significant amount of alcohol and methamphetamines in the days before the offending; * you are reluctant to engage in any rehabilitation programs concerning your alcohol and illicit drug issues, including being hesitant to complete any of the ECLIPSE programs; and * when you were last on parole, your engagement was borderline satisfactory and, to the extent that you did engage, there was minimal participation in external interventions and only sporadic attendance with reporting obligations. 1. Insofar as Mr Awit's report (Exhibit 1) is concerned, those sections dealing with your early history, employment history and alcohol and drug history may be accepted. In relation to the matters covered by those sections, I am satisfied of the following on the balance of probabilities. 2. You are now 38 years of age. 3. You and your five siblings were born in Fiji. 4. Your father left Fiji and came to Australia for work (and to provide for his family) when you were 3 years old. 5. Your early childhood years in Fiji were happy years. 6. Your mother and your siblings moved to Australia to join your father when you were 9 years old. At about this time, the relationship between your parents deteriorated and significant domestic violence (from your father towards your mother) commenced. You were also the subject of violence from your father. 7. Your childhood, whilst in some respects a happy one (as perceived by you), nevertheless was impacted by violence to a degree sufficient to describe it as dysfunctional – and to thereby reduce, to an extent, your moral culpability for your offending (see Bugmy v The Queen (2013) 249 CLR 571). 8. When you were 13 years old, your father died. It was at this time that your life took a significant turn for the worst. You struggled to cope with the loss of your father. You got into trouble at school, including fighting. 9. And, at age 13, you commenced using illicit drugs and alcohol – issues which continue to cause you problems up to and including the present time. 10. The illicit drug you started using at 13 years of age was cannabis. Thereafter, you have added heroin, cocaine and ice to your repertoire of illegal drugs. You have used and abused all these illicit drugs (and alcohol) up to the time of your arrest; however, cocaine and ice have been your predominant drugs of choice in at least recent years. 11. You have never undertaken any drug rehabilitation program, and you have had only very limited psychological intervention. 12. After you left school at the end of Year 12, you worked more or less continuously in a series of semi-skilled jobs until the pandemic lockdowns in 2020 and 2021. You have not worked since. 13. You were in a permanent personal relationship with a young woman (not the victim) until 2019. As a result of that relationship, 3 children (who are now in early adolescence) were born. The relationship with the mother of your children ended because of issues related to your constant abuse of illicit drugs. 14. Since the relationship with the mother of your children ended, you have had a couple of other relationships – one of which was with the victim. 15. Mr Awit has expressed the opinion (both in his report and in his oral evidence) that you suffer from: general anxiety disorder; major depressive disorder; and substance use disorder – and that these disorders were elevated in the period immediately before the offending. The cross-examination of Mr Awit revealed somewhat problematic aspects of the process of reasoning by which Mr Awit came to those opinions. He had also revealed that he was, at times, acting more as an advocate than an impartial expert. With some hesitation, I am (just) satisfied, on the balance of probabilities, that I should accept those findings. However, I am not satisfied that those various psychological conditions were causative of your violence towards the victim on this night – offending which, as I have already said, I am not satisfied, on the balance of probabilities, was spontaneous or opportunistic. 16. At paragraph 22 of his report, Mr Awit provides your explanation for your offending. In part, that explanation appears to be based on an incident "in recent years" when you were set upon (beaten and stabbed) by a group of 10 other people. However, very little detail was provided by you to Mr Awit about this alleged incident – you weren't even able to give him a date on which it occurred. And you did not give evidence as to the truth of that part of your history. I approach it with some circumspection. 17. Furthermore, and more disturbingly, in that paragraph, Mr Awit noted your version of the events giving rise to the offending – a version which engages in victim blaming and which is not consistent with the Agreed Statement of Facts. Similar statements were made by you to the author of the sentencing assessment report as I have already indicated. It indicates a disturbing lack of insight into your offending. 18. You have a significant criminal history which disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender. 19. And As I have already indicated, you have limited insight into your offending, and you have made no meaningful expression of remorse. In this context, I regard with considerable scepticism your second-hand expressions of remorse. 20. In all the circumstances, I regard your prospects for rehabilitation as being extremely guarded. 21. Although I regard those prospects as being extremely guarded, I have not overlooked, in the context of the first offence, the objective of rehabilitation in s16A(2AAA) of the Crimes Act 1914 (C'th) – which is a separate and different consideration from prospects of rehabilitation and must be specifically taken into account in the sentencing exercise – and has been by me in making my ultimate orders. 22. Whilst your psychological conditions (as well as Bugmy considerations) modify, to an extent, the full application of general deterrence (cf R v De La Rosa [2010] NSWCCA 194), that consideration, nevertheless, remains a meaningful sentencing consideration. 23. And specific deterrence is fully engaged; as is the need to protect the community. 24. No sentence for any of the four offences other than full-time imprisonment is appropriate. 25. I intend imposing an aggregate sentence in relation to the second, third and fourth offences. It will, therefore, be necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. 26. You entered early pleas of guilty and are entitled to effective discounts of 25 per cent in relation to all four offences. That discount, insofar as the second, third and fourth offences are concerned, will be applied to the relevant indicative sentence. 27. You have been in custody solely referrable to these offences since the date of your arrest on 16 January 2023 and the aggregate sentence will be backdated to that date. By having regard to totality, the sentence for the first offence will also be backdated to the date of your arrest. 28. In relation to the first offence, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years 6 months; after the discount of 25 per cent, the term of imprisonment is 1 year 10 months. That term of imprisonment will be a fixed term to date from 16 January 2023 and which will expire on 15 November 2024. 29. In relation to the second offence (and taking into account the two matters on the Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 6 years 9 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 5 years. The indicative non-parole period is 3 years 9 months. 30. In relation to the third offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 12 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 9 months. 31. In relation to the fourth offence, except for your plea of guilty, the indicative sentence would have been imprisonment for 10 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 7 months. 32. In relation to those last three offences, I sentence you to an aggregate term of imprisonment of 6 years. 33. I decline to make a finding of special circumstances in connection with the aggregate sentence for the second, third and fourth offences. This is not your first time in prison. You are not a young offender. And your prospects of rehabilitation would not be enhanced by a longer period on parole. Moreover, you have been in custody since 16 January 2023. There is no evidence that, in the intervening period, your incarceration has actually been more difficult because of the psychological conditions identified by Mr Awit. 34. I fix a non-parole period of 4 years 6 months to date from 16 January 2023 and which will expire on 15 July 2027. I fix a balance of 1 year 6 months to date from 16 July 2027 and which will expire on 15 January 2029. 35. You are disqualified from driving for 12 months from the date you are admitted to parole; or, if you are not admitted to parole, then from 15 January 2029. 36. I note that the second offence is one which has a domestic violence context. Pursuant to s12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct that the second offence be recorded as a domestic violence offence on your record. 37. Furthermore, I note that the second offence is a "serious offence" within the meaning of sections 33(1)(a) and 40 of the Crimes Act 1900 (NSW). I, therefore, make a final apprehended violence order as a result of your conviction for that offence. In that order, the victim is to be named as the protected person. 38. In relation to the final apprehended domestic violence order, I am satisfied that there are good reasons for that order to be in place for, not only the term of imprisonment (which includes any period on parole), but also for 10 years after the term of imprisonment ends – viz that order is in place from today until 14 January 2039. 39. I direct the Crown to prepare a draft form of the final apprehended violence order consistent with what I have said. 40. The matter will stand in the list this afternoon to enable the Crown to prepare a draft of that order and in order for the Court to receive submissions from the parties in relation to the application contained in MFI 2. 41. HIS HONOUR: I will adjourn briefly and then we will come back to the part heard sentence matter, but in relation to Ratucadre the parties are to seek leave to interpose that matter at any moment. 42. CURRAN: Thank you. 43. HIS HONOUR: The Court's briefly adjourned. 44. SHORT ADJOURNMENT 45. HIS HONOUR: We will return to the matter Mr Ratucadre. 46. CURRAN: Yes, your Honour, Curran for the Crown. Your Honour, we have prepared a final apprehended domestic violence order. I will provide two copies of that to your Honour. 47. MFI #3 DRAFT ORDER 48. HIS HONOUR: Thank you. Any submissions against those orders Mr Lang? 49. LANG: No, your Honour. 50. HIS HONOUR: I make orders in accordance with MFI 3, thank you. Thank you both for doing that. Is that all that I need to concern myself with so far as the final apprehended domestic order is it? 51. CURRAN: Yes, your Honour. 52. HIS HONOUR: Mr Lang? 53. LANG: Yes, your Honour, it is. 54. HIS HONOUR: All right, now turning to Ms Genders(?) application in MFI 2, I may, I'm just not sure whether I said this at 2 o'clock but do either of you object to the registry providing Mr Genders with a copy of tab 5 of Exhibit A in substitution for the police fact sheet? 55. CURRAN: No. 56. LANG: No, your Honour. 57. HIS HONOUR: All right, and do either of you want to be heard in my refusing access to any document in the Court file described as the offender's ERISP, police body camera, CCTV of earlier robbery? 58. CURRAN: No. 59. LANG: No, your Honour. 60. HIS HONOUR: Madame Crown, what is the victim's attitude to the release of the CCTV disc which is Exhibit C? 61. CURRAN: The victim consents to the release of Exhibit C, your Honour. 62. HIS HONOUR: If the victim consents, is there any reason why I shouldn't release it? 63. CURRAN: No. 64. HIS HONOUR: Mr Lang, any opinion? 65. LANG: No, your Honour. 66. HIS HONOUR: All right, then I will make these orders in chambers but what I will do in chambers and ask the registry is I will reject the matters that I have said I will reject and I will direct the registry to provide Ms Genders with a copy of the statement of agreed facts and that she may uplift and copy the disc. 67. LANG: Yes, your Honour. 68. CURRAN: Thank you, your Honour. 69. HIS HONOUR: Thank you. 70. CURRAN: Your Honour, there is one final housekeeping matter. 71. HIS HONOUR: Yes. 72. CURRAN: H92985354/2 which is a charge of stalk/intimidate was contained on a s 166 certificate, that sequence is to be withdrawn. 73. HIS HONOUR: It wasn't on the certificate that I had, I don't think. Sequence 2 is dismissed. 74. CURRAN: Thank you, your Honour. 75. LANG: May it please the Court. 76. HIS HONOUR: Mr Ratucadre, you can tell the officers that you have finished for the day and you are free to leave, thank you sir. Court will now adjourn, thank you. 77. ADJOURNED 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: 04 March 2025