New South Wales Supreme Court CITATION : R v TUIGAMALA [2008] NSWSC 706 HEARING DATE(S) : 27 June 2008 JUDGMENT DATE : 11 July 2008 JUDGMENT OF : Hulme J at 1 DECISION : I nominate as the limiting term in respect of the Prisoner's offence, 21 years commencing on 7 September 2003 PARTIES : Regina David Tuigamala FILE NUMBER(S) : SC 2004/2300 COUNSEL : Crown: Mr K McKay Prisoner: Mr M Ierace SC SOLICITORS : S Kavanagh S O'Connor - 13 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION 2004/2300 HULME J Friday, 11 July 2008 REGINA v David TUIGAMALA REMARKS ON SENTENCE 1 HULME J: I sit here because of another death and another life ruined – events contributed to by the ease with which, in this State, it is possible to drink alcohol all night. 2 On 11 April last a jury found that "on the limited evidence available the Accused committed the offence of murder". He now stands for sentence or, more accurately, for the fixing of a limited term under s23 of the Mental Health (Criminal Procedure) Act. This follows a finding by Studdert J on 15 May 2007 that the Applicant was unfit to be tried. 3 Pursuant to s19A of the Crimes Act, the offence of murder carries a maximum sentence of imprisonment for life. Pursuant to s54A et seq. of the Crimes (Sentencing Procedure) Act, there is a standard non-parole period of 20 years, those statutory provisions requiring a court to impose that penalty for an offence in the middle of the range of objective seriousness unless the court determines that there are reasons, falling within the terms of s21A of that Act, for setting a longer or shorter non-parole period. 4 Although the provisions of the Mental Health (Criminal Procedure) Act mean that no non-parole period may be fixed by me – see R v Mailes [2004] NSWCCA 365 - the standard non-parole period to which I have referred remains as a guide in the fixing of the limiting term. 5 A determination of an appropriate sentence, particularly in light of s54A et seq. requires a court to make a decision as to the relative seriousness of the offence under consideration. Although to a layman, conscious of the fact that in the case of all murders the victim will have been killed, the task may seem odd, it is nevertheless required. No longer does the law require that all murderers be executed or sentenced to prison for life and even when this last mentioned punishment was obligatory, most were released at some time by a decree of the Executive. 6 As an incident of the process I am required to make findings of fact. Any findings made must be consistent with a jury's verdict. Matters adverse to the Prisoner may be found only if I am satisfied of them beyond reasonable doubt but matters that tend in mitigation need be established only on the balance of probability. 7 The circumstances that led to the Prisoner being charged were that at about 5am on 6 September 2003 Barry Alexander and the Prisoner were at the Club Hotel at Campbelltown. Both had been out socialising for many hours. The time Mr Alexander started was not the subject of evidence but he was seen at a place called Sweeney's where some boxing match was held, prior to 10.30 or so, then at some time over the next few hours at the City Hotel, prior to his going to the Club Hotel. Post-mortem examination revealed him to have a blood-alcohol level of .258. 8 The Prisoner had left the house of his partner's mother at about 8.30 pm. At about 10pm he rang a friend, inviting the latter to join him for a drink. The friend joined the Prisoner at the City Hotel. In addition to drinking, they played pool. The City Hotel closed about 1am and they went to the Club Hotel. The evidence as to the extent of the Prisoner's drinking was by no means clear but, when combined with evidence of his general drinking habits, I am satisfied that he also had consumed a substantial amount of alcohol. In his ERISP he conceded to at least 10 or 11 drinks although it is also fair to say that his drinking habit over some years must have led to him building up a reasonable tolerance to its effects. 9 Some sort of altercation – there may have been 2 - occurred between the deceased and a Mr Sua, a person who was drinking at the same table as the Prisoner. The altercation, or the last one, was broken up by a Mr Vincent and a Mr Macklin intervening, Mr Sua and the deceased then shook hands and Mr Sua then bought, or at least paid for, a drink for the deceased. Later – how much later is not clear - the deceased seems to have tried to take a drink from the table where the Prisoner and others were. Whether he thought it was one he was entitled to was not the subject of evidence but in any event he was stopped by a Mr Tuliakiono who said words to the effect, "I am not buying for you guys". The deceased responded by saying something to the effect, "Fuck you. Fuck you". 10 That is the account of the words used given by the Prisoner in his ERISP and strikes me as a more reliable account than that given to Dr Westmore some years later. It is not dissimilar to the version given in evidence by Mr Tuliakono of "Fuck you guys", said 3 or 4 times. I have no confidence in an account of the use of somewhat more offensive remarks given by Mr Sua who claimed to have first remembered what was said some months after the incident. 11 The Prisoner responded by administering a punch to the deceased who fell backwards and, either semi-conscious or unconscious, onto the floor. The Prisoner, whose feet were encased in boots, then kicked the deceased to the head. It was a hard kick. Estimates varied as to the time that elapsed between the punch and the kick. One or 2 seconds was at the lower extreme. 30 seconds to a minute was at the upper extreme and I am satisfied that it was somewhere in this longer range. It was long enough for one or 2 security guards to recognise that an incident was occurring, to move something of the order of 12 metres to the spot, to bend down and then lift the deceased to a sitting or semi-recumbent position. I am satisfied also that with a view to administering the kick the Prisoner moved a step or 2 from a position where the parts of the deceased's body closest to him were the deceased's feet to a position where the deceased's head was within range. 12 The Prisoner was then grabbed by security guards and escorted from the premises. The deceased fell back onto the floor. He had suffered fractures to the nasal cartilage, the lower margin of the left eye socket, the left maxillary sinus and cerebral concussion. This concussion and suffocation due to the inhalation of blood into the lungs and airways from the nasal and facial fractures led, according to the pathologist, to his death. 13 There was some evidence that, in between the punch and the kick, one of the persons helping the deceased asked the Prisoner, "What'd you do that for?" and received a reply to the effect "He deserved it. I told him to fuck off." Having regard to the number of witnesses who were present and gave no such evidence, I am not disposed to find that anything along these lines was said. 14 An issue that was left to the jury and rejected by them was that the deceased's actions amounted to legal provocation. Clearly the deceased's actions as I have found them to be are not sufficient to do so. Nor, at least to a person sober, and with normal abilities of intellect and self-control, could they have led to a reaction such as that exhibited by the Prisoner. That said, they were clearly calculated – an expression I use in contradistinction from designed – to irritate, particularly someone who at the time lacked one or more of characteristics to which I have referred. Be that as it may, I am satisfied that the punch, let alone the kick, was well out of proportion to the actions of the deceased. 15 During the course of the trial the Crown did not suggest that the Prisoner's intent was to kill the deceased as distinct from inflicting grievous bodily harm. Certainly the evidence would not justify a finding of the more serious of these intentions. 16 There is no evidence at all that the Prisoner had, prior to immediately before his punch, any intention to harm the deceased. There was no evidence to indicate they knew one another and the evidence makes it clear that it was the deceased's conduct shortly before the punch that irritated the Prisoner. The passage of time between the punch and the kick is however a matter that merits attention. That period argues for there having been a degree of thought on the part of the Prisoner prior to his fatal actions and thus, albeit very brief, some premeditation. 17 Another issue that was left to the jury, and rejected, was the partial defence of Substantial Impairment by Abnormality of Mind. In this connection and because there was also an issue as to whether, particularly in light of his mental condition and the alcohol he had consumed, the Prisoner formed either of the intents necessary for murder, evidence was given by Dr Pullman a clinical neuro-psychologist, and by 2 psychiatrists Dr Wong and Dr Westmore. Dr Pullman's assessment of the Prisoner was that he had a mild intellectual disability probably existing from childhood. She agreed that persons with such a disability sometimes have difficulty in responding appropriately to provocation when they feel the sensation of anger, that they may not have the abstract conceptual reasoning ability to think through what they are doing, they may not think as quickly as others and may not think through all of the consequences as someone normal may do. 18 Dr Wong also accepted that the Prisoner suffered from mild mental retardation although Dr Westmore regarded the level of intellectual disability as mild to moderate. Against quotients of 90 to 100 for persons in the normal range, 80 to 90 for persons below average, 70 to 80 for borderline, the Prisoner's IQ was assessed as 60 or thereabouts. 19 Evidence was given, and a history to similar effect provided to the doctors, to the effect that the Prisoner had a tendency when annoyed to punch walls, including brick walls, and a punching bag; on one occasion he had punched a mirror and on another punched a friend who had touched the Prisoner's partner on the breast. Details of the last mentioned incident were not regarded as sufficient to form the basis of any conclusion but Dr Wong was disinclined to regard the others as indicating that the Prisoner was abnormally lacking in self-control. Dr Westmore said that the incidents demonstrated control insofar as the Prisoner did not hit his partner, though dis-control in that he hit walls. I prefer the view of Dr Westmore. 20 Talking more generally, although agreeing that the intellectually disabled have a higher degree of emotional abnormalities, Dr Wong said that intellectual disability per se does not argue for the existence of lesser self-control. Dr Westmore said that the ability to maintain self-control may be less for those intellectually disabled. 21 Dr Wong said that to the extent the attack on the deceased demonstrated a lack of self-control, this was likely to be the result of intoxication albeit also saying that the Prisoner was likely to have developed a considerable tolerance for alcohol and that there was no evidence given to him that the Prisoner was severely intoxicated at the time or that the Prisoner had consumed more than he normally did. The doctor observed that the Prisoner had informed him that he lost his temper more readily when under the influence of alcohol and someone annoyed him. 22 Although conceding that it was possible that the Prisoner's intellectual disability was the primary reason for his lack of self control in the attack on the deceased, Dr Westmore said that there was no sensible way that alcohol "a substance which is known to impair judgment and cause disinhibition" could be excluded as an operative factor in the Prisoner's actions and that in his view alcohol along with provocation played an immediate and direct role in the Prisoner's offending behaviour. Dr Westmore said also that those with intellectual disabilities are more prone to the effects of alcohol. 23 There was also tendered during the sentence hearing a report from Emma Collins, a psychologist. Ms Collins recounted earlier testing which revealed the Prisoner to be at the very bottom of the borderline range of intellectual functioning and having very poor cognitive ability. She herself sought to undertake some personality testing but felt obliged to discontinue her efforts due to the Prisoner's inability to understand. Ms Collins' conclusions include the following:- "Mr Tuigamala impresses as someone who lacks reasonable impulse control. This is suggested from the cognitive testing completed by Dr Reid, his deteriorating behaviour and general presentation during the assessment. Due to his poor cognitive functioning, Mr Tuigamala appears to lack the necessary resources to regulate his behaviour and is subject to irrational and impulsive behaviour. His alcohol use particularly with regards to the current offence, acted as a disinhibitor in relation to his aggressive conduct. Furthermore, his exposure to violence from an early age normalises the use of aggression as a means of coping and control, and Mr Tuigamala simply does not have the internal mechanisms to regulate the expression of such behaviour. A synthesis of an early introduction to violence, reduced intellectual ability and alcohol abuse are integral factors in his impulse difficulties and as such, resulted in his criminal conduct." 24 Relevant also to a determination of the objective seriousness of the offence are some of the matters in the Prisoner's history. Although many aspects of that history are relevant to only subjective factors, it is convenient to refer to all at this stage. The Prisoner did not give evidence on sentence but much of his history has been provided sufficiently often to the various experts he has seen to persuade me it is reliable. 25 He was born in Samoa in August 1977 as one of 10 children. He was beaten regularly by his father, commonly for truanting from school. The Prisoner said that this form of discipline was conventional in that culture although believes that it was, in his case at least, excessive. He was sent to Sydney in 1993 to live with an aunt and uncle and to enable him to send money back to his family. The prisoner said that he had a good relationship with his aunt and uncle and their 4 children. His uncle however died in 1996 and this seems to have had a significant effect on the Prisoner who thereafter experienced depressive symptoms and a loss of interest in things. The Prisoner left his uncle's family in 1997 and has lost contact with them. 26 In Samoa the Prisoner found learning difficult. Learning difficulties continued in Australia and the Prisoner left school after year 9. Thereafter he has had a fairly consistent work history working as a labourer, a storeman, and making furniture, and in order to send money to his family. 27 The prisoner began substance abuse in 1997, binge drinking and using cannabis and amphetamines. These habits continued until his current incarceration. Ms Collins opined that, had the Prisoner not been arrested, this use would probably have escalated to a state of dependency. The Prisoner established a de facto relationship in about 2001, a relationship that has been productive of 2 children. 28 His partner also gave evidence of, additional to the episodes of wall punching to which I have referred, a habit of the Prisoner on receiving mail to throw it down in frustration with words to the effect, "You read it". 29 The Prisoner has a minor criminal record consisting of convictions, in 1997 on one count of malicious damage and one of stealing, in 1999 on one count of aggravated robbery with wounding and one of robbery in company, in 2000 on one count of affray and one of resisting a police officer in the execution of his duty, and in 2002 on one count of driving with a prescribed concentration of alcohol in the mid-range, and one of driving although never licensed. For the 2000 offences the Prisoner was sentenced to imprisonment for 12 months including a non-parole period of 4 months, both periods commencing on 31 March 2000. For the 2 robbery offences, the Prisoner was sentenced in April 1999 to concurrent terms of imprisonment for 3 years including non-parole periods of 6 months. 30 Although some of these offences includes elements of violence, having regard to the absence of any evidence that they were the result of loss of self-control or, except for one driving offence caused by alcohol and to the gap between 2000 and September 2003, I do not regard the Prisoner's history as of any significance other than as indicating that he does not come before the court with an exemplary history. 31 The Prisoner was arrested on 7 September 2003 and has been in custody since. On 8 December 2004 he was convicted before Wood CJ at CL of murder and sentenced to imprisonment for 26 years including a non-parole period of 20 years. On 22 November 2006 the Court of Criminal Appeal set aside that conviction because it appeared to the Court that there was a question as to the Appellant's fitness to be tried. As I have said, on 15 May 2007 Studdert J found that the Applicant was unfit to be tried. 32 Wood CJ at CL's remarks on sentence were, without objection, tendered by the Crown before me and although, because they are a matter of record, I did not admit them as an exhibit I have considered them. However, the task of sentencing the Prisoner on this occasion is mine as is the fact-finding exercise incidental thereto and I have not found his Honour's remarks of assistance. Of course, accepted practice is that, other than in exceptional circumstances or unless the circumstances of offending seem significantly different – and neither situation exists here - I should not impose on the Prisoner in a second trial a sentence higher than was imposed in his first. 33 Reference must be made also to evidence called at the sentencing hearing from Professor Susan Hayes, a professor of behaviour sciences at the University of Sydney. Professor Hayes had interviewed the Prisoner on a number of occasions since 2005 and perused a copy of the Prisoner's Corrective Services Health records. She observed that in addition to the Prisoner's intellectual disability, he has difficulty in communicating in English and has some hearing loss. 34 Professor Hayes said she was experienced with services offered by the Department of Corrective Services for inmates with an intellectual disability. She said that among the most important services in this regard is a structured environment where inmates are supervised and their attendance at appropriate programs ensured. While the courses needed by the Prisoner might not be different from those needed by many inmates without disabilities, the supervision and nature of the teaching was. Professor Hayes said that it was vital to any rehabilitation of the Prisoner that his situation be recognised and that he participate in such programs. 35 She observed that the Corrective Services records, with one exception, failed to recognise that the Prisoner had an intellectual disability, commonly stated the opposite, and that there was also a failure to recognise his difficulties in communication with the result that he broke prison rules of which he was unaware. 36 Having regard to the Prisoner's communication during his ERISP I am not disposed to accept that the Prisoner's need for an interpreter is as great as Professor Hayes seems to have thought. However, when regard is had to the evidence his partner gave as to the Prisoner's inability to read, it is clear that any written communications to the Prisoner are likely not to be understood at all and insofar as participation in gaol programs is dependent upon him filling in forms, again he is likely to suffer gross disadvantage. 37 Professor Hayes observed also that from the first time she had contact with the Prisoner, he had expressed what appeared to her to be genuine remorse. 38 Victim Impact Statements from the deceased's wife and father were read. Those statements spoke eloquently of the loss their authors have suffered. Although authority by which I am bound - see R v Previtera (1997) 94 A Crim R 76 - lays down that, because of the problems in comparing and valuing one life lost against another, sentencing judges may not take into account the particular content of such statements in determining an appropriate penalty, such statements do help to prevent sight being lost of the enormous suffering the offences involving the death of another human being cause. 39 Although not all bear on the objective seriousness of an offence, subject to the section's terms, I am required to have regard to such of the aggravating and mitigating factors referred to in s21A of the Crimes (Sentencing Procedure) Act as are relevant. I do not regard it as necessary to progress through the numerous paragraphs in that provision seriatim or to refer again to matters that are elements of the Prisoner's offence or integral to it. 40 Sub-section 2(d) which refers to prior convictions is the only aggravating factor relevant. However, for the reasons indicated I do not regard the Prisoner as a recidivist nor the past offences as of significance for present purposes greater than I have indicated. 41 Among the mitigating circumstances in sub-section (3) are "(b) the offence was not part of a planned or organised criminal activity". In the circumstances here I regard that fact of no mitigating weight. Rather would I have regarded the contrary situation as aggravating. 42 Sub-section 3(c) refers to the offender being provoked by the victim. There was an element of provocation here. It did not come close to justifying any violence by the Prisoner but common experience indicates that to seek to take a drink away from someone in a bar or other drinking establishment, and when prevented, abuse him, is not unlikely to result in some adverse reaction. It is notorious that persons in such places are not always rational, particularly those who are still there at 5am. 43 The Prisoner is not within paragraphs (e) or (f) of sub-section 3 and I do not feel able to make a finding such as envisaged in paragraphs (g) or (h). My inability is a consequence of the Prisoners' disabilities, not any unwillingness on his part. 44 I am also satisfied that the Prisoner is remorseful. Although initially in his ERISP he told a number of lies, when a statement from Mr Sua was brought to his attention, he broke down and acknowledged what had occurred. The nature of the mattes put in issue in the Prisoner's trial before Wood CJ at CL do not detract from my finding. Of course, in light of the terms of s21(3)(a) of the Mental Health (Criminal Proceedings) Act, the fact of his defence before me could not do so and there was nothing in the manner of conduct of that defence that would argue for a different conclusion.. 45 I return to what I see as the principal factors. I have already indicated that the Prisoner's intent was to cause grievous bodily harm. The period of premeditation was very short. The evidence would not permit a finding that any intent to inflict grievous bodily harm was formed except immediately prior to the victim being punched and on the ground that it seems to me inevitable that any thought processes on the part of the Prisoner leading to the formation of that intent would have been affected by the degree of alcohol ingested. Dr Pullman's evidence and Ms Collins' report lead me to the view that any such thought processes were likely also to have been adversely affected by the Prisoner's mental impairment. 46 I regard an intention to cause grievous bodily harm as generally, and in this case, appreciably less heinous than an intention to kill. The brevity of the period of premeditation and the impact of the Prisoner's mental retardation also argue significantly for the Prisoner's offence being one below the middle of the range of objective seriousness. Given the notorious effects of alcohol and the Prisoner's awareness of its impact on him, I do not regard his ingestion of that drug as doing the same: Indeed these matters argue in aggravation although given that there is nothing to show that the alcohol has landed the Prisoner in trouble for violence in the past I regard the weight of this factor as limited. The provocation argues for a lower rather than a higher assessment of the objective criminality although the weight of this factor is also but small. 47 In these circumstances the conclusion at which I have arrived is that the offence in this case does fall appreciably below the middle of the range of objective seriousness. 48 Relevant also to the determination of the limiting period to be imposed are a number of other matters. One is the Prisoner's remorse which makes the demands of personal deterrence and protection of the community less than they otherwise would be. Relevant also is the violence displayed to the Prisoner in his early years. Justice requires that some allowance be made for those who are taught bad habits, or not taught good habits, in their formative years and whose offending is in part the result. Professor Hayes' evidence also indicates that the Prisoner's time in custody is likely to impact on him more than for a prisoner without his disabilities and, although I can make recommendations concerning his treatment, it is anyone's guess what effect such may have. 49 The conclusion at which I have arrived is as follows:- I indicate that if the special hearing involving the Prisoner had been a normal trial against a person fit to be tried, I would have imposed a sentence of imprisonment; and I nominate as the limiting term in respect of the Prisoner's offence, 21 years commencing on 7 September 2003. 50 I recommend to the Department of Corrective Services that it take whatever steps are necessary to ensure that the Prisoner is always recognised and treated as a person intellectually disabled and unable to read. 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.