R v Turuta [2007] NSWSC 1505

New South Wales Supreme Court

CITATION : R v Turuta [2007] NSWSC 1505

HEARING DATE(S) : 5 - 9, 12 - 16, 19 - 23, 26 - 30 November 2007 14, 21 December 2007

JUDGMENT DATE : 21 December 2007

JUDGMENT OF : Mathews AJ at 1

DECISION : in relation to the assault of Mata Puia, offender sentenced to imprisonment for 3 months to commence on 6 August, 2006; in relation to the manslaughter of Jimmy Eli, offender sentenced to imprisonment, consisting of a non-parole period of 4 years 6 months, to commence on 6 August, 2006 and to expire on 5 February, 2011, with a balance of term of 2 years 6 months, commencing on 6 February, 2011 and expiring on 5 August, 2013.

CATCHWORDS : CRIMINAL LAW - sentence - manslaughter - excessive self defence - extraordinary hardship to offender's family by reason of his incarceration

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s21A

PARTIES : Regina v Saul Turuta

FILE NUMBER(S) : SC 2007/741

COUNSEL : N Noman - Crown J Hickleton - Offender

SOLICITORS : S Kavanagh - Crown Sten & Co - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Mathews AJ

Friday 21 December 2007

2007/741 R v Saul Turuta

REASONS FOR SENTENCE 1 HER HONOUR: On 5 November, 2007, the offender, Saul Turuta, was indicted before a jury in relation to two charges. First, that on 6 August, 2006, he murdered Jimmy Eli. Second, that on the same day he maliciously wounded Ukeariki Oaariki. He pleaded not guilty to both charges and the matter proceeded to trial. 2 On 30 November, 2007, the jury found him not guilty of murder, but guilty of manslaughter in relation to the first charge and not guilty in relation to the second charge. He therefore comes to be sentenced in relation to the manslaughter of Jimmy Eli. 3 The events in question took place on the afternoon of Sunday 6 August, in (or in the vicinity of) the offender's home in Airds, an outer suburb of Sydney. The offender and the deceased, Mr Eli, lived opposite each other and were well acquainted with each other. Earlier that day, the offender and his then partner, Mata Puia, had happened to meet the deceased and his friend, Mr Oaariki, at a local hotel. They had invited the deceased and Mr Oaariki to come to their home for a drink later in the day. They accepted and later that afternoon the two of them went to the offender's home where all four of them sat drinking on the porch outside the offender's front door. 4 After a while, Ms Puia left them and went inside to join some young girls who were watching television in the lounge room. 5 A little later an argument developed inside the house between Ms Puia and the offender after Ms Puia had turned down some music which the offender had been listening to. The offender grabbed Ms Puia by the hair with one hand and held her by the throat with the other. She was screaming for him to let her go. At about this point, the deceased, Mr Eli, came into the house and tried to separate them and to restrain the offender. 6 Mr Oaariki also came in and assisted the deceased in trying to restrain the offender. A fight between the three men ensued. On one version of the evidence, at least one other man, and possibly two, came in and joined the fight against the offender. 7 I should say at this point that although there were numerous eye witnesses to the events, both within the house and outside, it is very difficult to get a clear picture of what happened from the time this conflict started. I am certain that most of the witnesses, if not all of them, were trying their hardest to accurately recount their observations as they recalled these events 15 months later. But, as so often happens with extraordinary events which happen quickly, unexpectedly and in a situation of stress, both observations and memories varied enormously between the various witnesses. There were a few common themes, but most of them related more to peripheral matters than to the central conflict which ultimately resulted in the death of Jimmy Eli. 8 A few things can be discerned. At one point all three protagonists, (that is the offender, the deceased, and Mr Oaariki), exited the offender's house through the front door. According to some witnesses, they were still fighting when they moved outside. According to others, the fight had broken up by then. Whatever was happening, there was a great deal of shouting going on which attracted a large number of observers to the scene. One thing that almost all witnesses described was a young man throwing a garbage bin towards the offender. The bin struck the offender's front door which, in turn, struck the offender. The precise point at which this happened is unclear, however it was probably shortly after this that the offender went back inside the house and walked into his kitchen. There he took a large knife and went back outside. The women and girls inside the house were screaming at him not to take it. Once he was outside, accounts varied as to precisely what happened. 9 In all probability, the deceased, Mr Eli, was returning home with his wife when the offender appeared at his front door carrying the knife. Some witnesses then described the offender as charging towards the deceased while others had the deceased running back towards the offender. 10 One thing is certain, namely that at some stage during that afternoon, a handrail beside the porch and steps outside the offender's front door was torn out of its cement base, something which would have required a considerable degree of force. A number of witnesses described the offender and the deceased as struggling with each other shortly after the offender had come outside with the knife, and the two of them going over the railing and dislodging it. I think it is likely that this damage was caused at this time. This was very close to the offender's front door, which makes it likely that the deceased did run back towards the offender at that time. However, it is also likely that the offender moved forward to meet the deceased, thus giving credence to both accounts. 11 A number of the witnesses described the offender as stabbing the deceased in the back on more than one occasion during the course of their confrontation. Where this took place is by no means clear, nor whether they were standing up or grappling on the ground. It seems that none of the witnesses saw the deceased being stabbed in the stomach. 12 Shortly afterwards, the deceased staggered away, bleeding profusely and collapsed on the ground. 13 A little later, a further fight took place between the offender and Mr Oaariki during which Mr Oaariki apparently sustained three stab wounds. Again, no one seems to have seen these wounds being inflicted. A neighbour of the offender, a Mr Maile, took the knife from the offender when he and Mr Oaariki were on the ground. At about that point the fight broke up. Mr Oaariki walked away and he also later collapsed onto the footpath. The offender went back inside his home, collected a jacket which he put on, and then returned and sat on some steps outside his house. 14 Several of the bystanders had made Triple O calls and shortly afterwards both the police and the ambulance arrived at the scene. The ambulance officers quickly recognised that the deceased required the most immediate attention and he was urgently conveyed to Campbelltown Hospital. However, all attempts to resuscitate him were unsuccessful and he was pronounced dead shortly after his arrival at the hospital. 15 Both Mr Oaariki and the offender were separately taken to Liverpool Hospital. Mr Oaariki was found to have sustained three stab wounds; two in the area of his right shoulder and one to the back of his right upper arm. None of them was life threatening and it seems that only one of them required suturing. Mr Oaariki was discharged from hospital the following day. The offender was found to have bruising to the left eye and a fractured nose. He had swelling and contusions on both hands. He also was discharged the next day and was taken directly to Liverpool police station. 16 On the evening of that day, 7 August, an ERISP took place with the offender at the Liverpool police station. The offender described the events of the previous afternoon up to the time when he was fighting with the deceased and Mr Oaariki inside his home. He said that at one stage he was on the ground and the other two were on top of him and he thought that he was going to die. At that point he "blanked out", as he called it. He said that he had no memory of anything to do with the knife until some time later when he felt someone take the knife away from him. 17 Later that evening the offender was charged with the murder of Jimmy Eli. He has been in custody ever since. 18 At the trial of the offender, evidence was given by various bystanders and the relevant police officers. In addition, Dr Judith Perl gave evidence as to the likely blood alcohol reading of both the offender and the deceased at the relevant time, which was at about 6.50 pm on the evening of 6 August. Without going into the details of her calculations, she said that the offender's most likely level at that time was between .115 and .130 grams per 100 millilitres of blood. At this level he would have suffered impairment of his cognitive functions, his perception, judgment and co-ordination. He would have been able to make decisions and control his actions, although his decisions might have been impaired. Alcohol could not account, the doctor said, for any memory loss the offender suffered during that period. 19 The deceased's blood alcohol reading was considerably higher, at .185 grams per 100 millilitres of blood. 20 A significant medical issue emerged at the trial relating to the cause of the deceased's death. At post-mortem he was found to have sustained numerous injuries, including several stab wounds and some serious bruises and abrasions. The most serious injuries were two stab wounds to the back and one to the lower part of the chest. The two back wounds, one on the left side and one on the right, had penetrated each of the deceased's lungs. The chest wound had entered the pleural cavity, penetrated the diaphragm and then entered the liver where it had travelled for about two and a half centimetres. 21 Doctor Langlois, who performed the post-mortem, considered that death had resulted from the combined effects of these three injuries. However, a real issue emerged as to whether chest wound might itself have inevitably caused Mr Eli's death, thus rendering the back wounds irrelevant in terms of causation. This was significant because, as already mentioned, none of the bystanders had seen the chest wound being inflicted. 22 It was suggested, on behalf of the offender, that this wound might well have been unintentionally inflicted whilst the offender and the deceased were grappling with each other. It being for the Crown to prove that the fatal injury was deliberately, as opposed to accidentally, inflicted, it was put to the jury that if they considered that the chest wound was the primary cause of death, then they could not be satisfied of this matter. An outright acquittal would then have resulted. The jury's verdict means that they must have rejected this submission. They could have done so on two possible bases; either by finding, in accordance with the opinion expressed by Dr Langlois, that the two back wounds substantially contributed to the death of the deceased, (for on any view of the evidence, those wounds must have been deliberately inflicted); alternatively, by finding that the chest wound was deliberately inflicted, (thus rendering the medical debate irrelevant to their findings). It makes little difference, in my view, which route they took to reach this finding. In either case they found that the offender deliberately inflicted the wounds which led to Mr Eli's death. 23 A much more significant issue is how the jury came to reach its verdict of not guilty of murder but guilty of manslaughter. According to the written directions given to the jury, there were three possible routes by which they could have reached this verdict. In my view, by far the most likely of these was that of excessive self defence. This fits easily with the jury's acquittal in relation to the second charge. 24 In relation to the murder charge, it means that they accepted that the offender genuinely believed that it was necessary to act as he did in order to defend himself, but that the stabbing of the deceased was an excessive response in the circumstances. On the other hand, the stabbing of Mr Oaariki, which involved the infliction of much less serious injuries, was not excessive. 25 Both the Crown Prosecutor and Ms Hickleton, who appeared for the offender, agreed that this is the most likely basis upon which the jury reached its verdict. The offender, therefore, comes to be sentenced on that basis. 26 When the sentencing proceedings were on foot, the Crown Prosecutor gave notice of a related charge which had been transferred to this court pursuant to s166 of the Criminal Procedure Act, 1986. This was a charge for assaulting Mata Puia on the afternoon of 6 August, 2006. Ms Hickleton at first expressed concern about whether the appropriate procedures had been followed under s166, but on production by the Crown Prosecutor of a certificate under s166, which had been produced before the Local Court, and of the notice of committal which included a reference to a related charge of common assault, Ms Hickleton withdrew her objection to my dealing with the matter under s168 of the Act. 27 Ms Hickleton submitted that on the evidence given at trial, the offender should not be convicted of assault, as it was Ms Puia who had first become aggressive towards the offender and his actions in taking hold of her were for the purpose only of restraining her. 28 I do not want to spend too much time on this issue. The Crown has submitted that a cumulative sentence should be imposed in relation to the assault charge, should a conviction be entered in relation to it. However, I do not propose to accede to this proposition. Accordingly, the sole relevance of this matter is that it will constitute another conviction on the offender's criminal record: a relatively minor matter, given the seriousness of the principal offence. 29 I have looked at the transcript references in relation to this issue. They are not all one way, but the great preponderance of the evidence is that Ms Puia did nothing to provoke the assault upon her other than to turn down the offender's music, possibly on two or three occasions. The offender's actions in taking her by the neck and grabbing her hair were, in my finding, done in anger. I therefore formally enter a conviction against him in relation to the offence of assault. 30 I return to discuss matters relevant to the primary offence for which the offender is to be sentenced. 31 The offender is now 44 years old. Little is known about his background, except that he was born in the Cook Islands. He had lived in the same house at Airds, which was a Housing Commission home, since 1991 or 1992. Very significantly, he has no prior criminal convictions of any kind. It would appear that he has not completed any skilled training courses. At the time of this offence, he was employed as a casual worker at Woolworths. 32 The offender had been living with Ms Puia since about January 2006. Before that he had been in a long term relationship with a woman I shall refer to as Ms R. They have three daughters now age 10, 6 and 5. The offender kept close contact with his children after separating from their mother and remained, on all accounts, a loving and attentive father. 33 Two weeks after the offender went into custody in relation to this offence, Ms R was diagnosed with multiple sclerosis. Since then her condition has deteriorated rapidly. She now has serious mobility problems and is dependent on her mother as her primary carer. She is unable to care for the children as previously and the situation can only get worse. 34 Her mother, who is the only family member available to assist them, has her own health problems. The children have maintained close contact with the offender and visit him regularly. They have been able to do this through the good services of "Shine for Kids", which has transported them to his correction centre every two weeks. 35 Ms R expressed concern that, with the continuing deterioration of her own condition, and the concerns about her mother's health, the offender, whom she described as "a wonderful father", should be in a position to assist in the care of his children as soon as circumstances will allow. One cannot but feel the greatest sympathy for Ms R and the three children. The real question is whether this can be taken into account in the sentencing of the offender. The authorities indicate that it is only in a most exceptional case that a sentencing court will mitigate sentence because of the impact of the offender's imprisonment upon third parties. 36 This is a particularly difficult matter in the circumstances of this case. In the end I have determined that the precarious position of Ms R and the offender's three young children is sufficiently extraordinary to enable it to be taken into account in establishing special circumstances which will justify a departure from the statutory ratio between the total sentence and the non-parole period. However, given the other facts in the case, the adjustment will be a relatively minor one. 37 Victim impact statements were read in court by or on behalf of the deceased's widow, Tinianne, and his two children, Shontel and Nga. These very movingly attested to the great pain and grief caused to the entire family by the killing of the deceased. The court expresses its sympathy to the family of the deceased. These statements have been taken into account as provided by the legislation. 38 The sole aggravating factor under s21A of the Sentencing Act, 1999, is that the offence involved the use of a weapon. This is, nevertheless, a matter of considerable significance because it introduces a deterrence aspect into the sentencing process. Other people must be deterred from use of such weapons. 39 Balanced against this are a number of mitigating factors under the section. First, that the offence was not planned or premeditated. Next, that the offender had no record of previous convictions and was, therefore, a person of good character; and finally, that given his age and background he is most unlikely to re-offend. These are extremely significant factors. 40 Ms Hickleton also suggested that the offender showed remorse insofar as he said in his ERISP that he did not want to harm anyone. However, I can not accede to this proposition. According to the medical evidence, it is most unlikely that the offender in fact, blanked out, as he described in his ERISP, and I can only conclude that he made up this story in an attempt to distance himself from the events in question. In my view, his statement that he did not intend to do any harm was made in the same context and cannot be taken as an expression of contrition or remorse. 41 I was told, during the sentencing proceedings, that two weeks after the commission of this offence the offender's home at Airds, together with its contents, was burned to the ground. This was treated as arson and one cannot but surmise that it was connected with the commission of this offence. However, I do not see it as a matter which can have any significant bearing on the sentencing process. 42 The fundamental question is where all this leads us in terms of the appropriate sentence. It was the offender's aggressive actions towards Ms Puia which initiated the confrontation in the first place. The deceased was by no means the principal aggressor. Indeed, on the bulk of the evidence, he was trying to restrain the offender. The offender was a much larger man than the deceased. In addition, as the Crown pointed out, the offender deliberately armed himself with a knife before going back outside. This is in contrast to a person under threat who opportunistically finds a weapon nearby and uses it to defend himself. Nevertheless, the jury's finding means that the offender genuinely believed that it was necessary to act as he did in order to defend himself. His state of intoxication is very likely to have had a bearing on this, given the evidence of Dr Perl, that his cognitive functions, perception and judgment would have been impaired at the time. 43 I have been referred to a number of sentencing decisions relating to manslaughter through excessive self defence. These have been of considerable assistance. However, ultimately each case falls to be determined according to its own particular facts, balancing the various considerations which are to be taken into account. 44 It goes without saying that this offence, which involved the taking of a human life, is an extremely serious one. Elements of punishment, retribution and deterrence must all play their part in the sentencing process. 45 As I indicated earlier, I do not propose to impose a cumulative sentence in relation to the assault upon Ms Puia. The circumstances of that offence were so bound up with the principal offence that it would, in my view, be inappropriate to do so. 46 The offender has been in custody since 6 August, 2006 and his sentences must commence on that date. 47 Saul Turuta, in relation to the assault of Mata Puia I sentence you to imprisonment for 3 months to commence on 6 August, 2006. 48 In relation to the manslaughter of Jimmy Eli, I sentence you to imprisonment, consisting of a non-parole period of 4 years 6 months, to commence on 6 August, 2006 and to expire on 5 February, 2011. That is the earliest date upon which you will be eligible for release on parole. 49 The balance of the term of the sentence is to be 2 years 6 months, commencing on 6 February, 2011 and expiring on 5 August, 2013, a total sentence of 7 years. **********