R v Toufa [2019] NSWDC 438

District Court New South Wales

Medium Neutral Citation: R v Toufa [2019] NSWDC 438 Hearing dates: 15 February 2019; 11 April 2019 Date of orders: 11 April 2019 Decision date: 11 April 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of 4 years, 6 months with a non-parole period of 2 years, 9 months: at [34]. Catchwords: SENTENCING — Aggravating factors — Breach of conditional liberty — In company SENTENCING — Relevant factors on sentence — Multiple offences SENTENCING — Sentencing procedure — Pre-sentence reports SENTENCING — Subjective considerations on sentence — Drug addiction — Health issues — Special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999. Crimes Act 1900 Cases Cited: R v Qutami (2001) 127 A Crim R 369 Pearce v The Queen (1998) 194 CLR 610 R v XX (2009) 195 A Crim R 38 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Rodney Toufa (Offender) Representation: Mr Fleigner (Crown)

Mr Buckman (Offender) File Number(s): 2019/124077

Judgment 1. The courts frequently emphasise that severe sentences should be imposed for offences involving domestic violence and they should involve rigorous and demanding consequences for the perpetrators for the purposes of protecting partners, family members and the wider community. Offences involving domestic violence now involve sentences which were quite different from sentences in the past because of changes in the attitudes of society to domestic relations. It is a long-standing obligation, as the High Court said, to vindicate the dignity of the alleged victim of violence, to express the community's disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against the repetition of violence. 2. Rodney Toufa appears for sentence in relation to a number of matters, some of which were in breach of an apprehended domestic violence order which had been put in place to protect the victim from him. He was on conditional liberty at the time and that conditional liberty was designed to protect the victim from further attacks by the offender. The repeated commission of domestic violence offences in breach of an apprehended domestic violence order attracts a need for specific deterrence, general deterrence and denunciation which are of course some of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 3. Mr Toufa was born in 1990. His partner of nine years, (has provided a reference and is in court today with their children. However, in early 2017 they were estranged and Toufa had been in a relationship with Natasha Haines for about a year. 4. The first count he faces arises out of an incident on 15 March 2017 when they were in Waterloo and there was an argument. During that argument the victim was assaulted suffering a laceration to her left hand resulting in a charge of assault under s 61 of the Crimes Act 1900 carrying a maximum of two years imprisonment with no standard non-parole period. 5. On 25 April 2017 the offender and the victim were together in Broadway and they went to her sister's address in Redfern. When a taxi arrived for them, the offender dragged her into the taxi and in the course of that she suffered a 1 centimetre laceration to her left index finger, less than a centimetre in depth, the subject of count 3, assault occasioning actual bodily harm, which carries a maximum of five years imprisonment with no standard non-parole period. 6. He dragged her into the backseat of the taxi. She was saying, "I don't want to go with you." A friend of the offender's was sitting in the front seat. The trip from Redfern to Newtown was captured on CCTV over a period of about ten minutes and while in the taxi he punched her to the face a number of times, her nose started to bleed and she had bruises on her body and lumps on her head as a result. She was on the floor of the rear of the taxi throughout, kicking at him in an effort to get out, and that is the subject of count 2 of take and detain with the intent to obtain an advantage which carries a maximum penalty of 20 years imprisonment with no standard non-parole period. 7. At the end of the journey when the taxi was in Newtown, he dragged her out of the taxi by her hair. Two pedestrians saw the commotion and heard her screaming. He made high kicks with his right leg, one of them striking her in the face causing her to stumble back, there were three more such kicks to the victim and she was punched with a closed fist and dragged by her hair onto the ground, and that is the subject of count 4 of an assault under s 61. 8. She had a flick knife in her bag and at the end of the taxi journey in Newtown she threw the knife away and the offender picked up the knife and while he was assaulting her on the street, pedestrians yelled out at him and he turned away from the victim and was facing in the direction of two pedestrians. He produced the flick knife and held it close to his torso saying, "This is my fucking girlfriend." Both of the pedestrians were terrified because of the actions of the offender towards the victim and his demeanour towards them, and that is the subject of counts 5 and 6 of being armed with intent to commit an indictable offence, which carries a maximum penalty of seven years imprisonment in each case with no standard non-parole period. 9. Police attended the scene in Newtown after reports by numerous members of the public and they saw the victim and the offender involved in an altercation. She was screaming, "Get away from me, leave me alone," and he was saying, "Be quiet." Toufa was arrested and Haines was examined at St Vincent's Hospital and found to have injuries including the laceration, to which I have referred, bruising on the left forearm, a 5 centimetre laceration on the left thigh, which was an old injury, right forearm bruising, forehead swelling and dry blood on the nostrils. She was admitted overnight. 10. There was an AVO in force to protect Haines at the time. Toufa declined to participate in a record of interview. 11. He has a criminal record which commences as a juvenile. As he summarised it to the psychologist, he was convicted of 12 counts of robbery while armed with a dangerous weapon, although that does not appear to be the case according to the record. However, he was given what appears to be an aggregate sentence or a total sentence of four years and three months imprisonment with a non-parole period of two years and three months which was initially served in juvenile detention and then he was transferred to an adult facility at age 18 .He reportedly solidified his bonds with antisocial peers during that time. 12. There is an offence of common assault for which he was given a section 9 bond in 2010. That was the subject of some discussion on the last occasion. It is clear that the facts sheet in relation to that matter does not sit well with the finding of a common assault and a s 9 bond, and I do not take into account the facts which are contained in the Crown bundle in relation to that matter. 13. There were charges of intimidate officers in January 2013 and a charge of assault officer and possess prohibited drug in December 2016. He was sentenced to a three month term of imprisonment from 27 February to 26 May 2017 after he had been arrested for this matter and it is common ground that a term of imprisonment should commence on the expiration of that sentence, namely on 27 May 2017. 14. Mr Buckman of counsel for the offender, also concedes that a further term of imprisonment is required and there is no need for the Court to consider any alternatives under s 5 Crimes (Sentencing Procedure) Act 1999. 15. The offender has not given evidence. However, there is a history contained in the Sentencing Assessment Report and a report of a psychologist which appears to be a reasonable basis upon which to proceed, notwithstanding the history is approached with some caution in the light of authorities such as R v Qutami (2001) 127 A Crim R 369. 16. There is also a Justice Health report in relation to a diagnosis of chronic myeloid leukaemia. He had a bone marrow biopsy performed in July 2017 and remains on medication and is in major molecular response which, according to the staff specialist, means that his prognosis is good. Mr Buckman does not put that there is any additional hardship or special consequences that flow from the diagnosis of leukaemia which is currently under control. 17. The Sentence Assessment Report does him no favours. He asserted that the victim was lying. He displayed no insight into his offending and he asserted that it was her responsibility to stay away from him following the ADVO being imposed. 18. He has a history of intermittent amphetamine and cannabis use. He was assessed as being at a medium to high risk of reoffending and recommendations were made for a number of aspects of a supervision plan to be put in place on his ultimate release, including steps to manage stress, anger and impulsivity. 19. He was born in New Zealand of Tongan descent and is the eldest child of devout Christian parents. He came to Australia when he was five years of age. He participated in school and sport and was a happy child until his father suffered a fatal stroke when he was 13 years of age and that is probably one of the factors that led him to become withdrawn and gravitate towards peers with whom he drank alcohol, smoked cannabis and committed crime, leading to the serious juvenile offences to which I have referred. 20. He has had minimal vocational history and worked as a labourer for a short period between 2013 and 2015 and there is no evidence of any regular employment since that time. 21. He said that when he was released from custody at age 19 he recommenced drug use and that peaked in his mid-twenties when he also began using MDMD and benzodiazepines. I am not surprised that his drug use was heaviest when away from the positive influence of his partner and the mother of his children He was, from time to time, told to leave the home after conflict. 22. His explanation for the offending was that he had been released from custody three months before and it was his birthday. He had been celebrating with friends in a hotel and he was off his head on Xanax, methamphetamines, cocaine, MDMA and a case of Corona beers, and the best explanation he could give was that he should not have mixed with the victim. He just wanted to go out and party and she just happened to come along. 23. The psychologist, Ms Hubner(, also assessed him as to be in a moderate to high risk of reoffending and suggested similar programmes to those set out in the Sentencing Assessment Report. 24. The Crown notes as aggravating features that he was on conditional liberty and has a history of offending, and that in relation to count 2, his friend was in the front seat of the taxi and thus strictly speaking the offending was in company. 25. The Crown points to the State Parole Authority documents in 2010 in relation to his poor engagement with rehabilitation programs and poor response to supervision. However, one has some hope that with maturity of the last nine years his response to ultimate supervision is somewhat better, particularly now that he has the ultimate responsibility for his three children on his release. 26. His partner has continued to visit him in custody with the children and he has expressed remorse and regret to her and together with the diagnosis of leukaemia, she expresses confidence that he will not offend. However, in the light of the evidence, the best that one could say is that his prospects of rehabilitation are guarded. 27. I have referred to the facts of each offence which indicate that they are objectively serious matters and it is unnecessary, as the Courts have recently confirmed, to place them in some notional range of seriousness. However, I accept Mr Buckman's submission that the most serious offence, namely count 2, is well below midrange of objective seriousness. 28. Mr Buckman acknowledges that drug addiction is not an excuse to commit crime or a mitigating factor but it may throw light on matters such as the impulsivity of offending and the extent of any planning for it. 29. Although I have said that his prospects of rehabilitation are guarded, they will be significantly enhanced, as Mr Buckman puts, if he is able to engage meaningfully with the program suggested by Ms Hubner and Corrective Services and with the support of his partner and family. Those prospects will also be enhanced. 30. I accept that the diagnosis of a serious illness such as leukaemia is a matter of great concern to the offender and should act as a further deterrent to him returning to a life of drugs and crime on his ultimate release. 31. Questions of totality and accumulation must be taken into account in accordance with the authorities such as Pearce v The Queen (1998) 194 CLR 610 and R v XX (2009) 195 A Crim R 38 so that the ultimate sentence to be imposed must adequately comprehend and reflect the criminality of all the offending. Count 1 of course was committed on a separate day, and counts 2 to 6, although all committed within a relatively short timeframe, all involved separate episodes of criminality which require some notional degree of accumulation in my view. 32. As the Crown points out, counts 5 and 6 are crimes against different complainants who were both members of the public in a busy public location and a flick knife was deployed by the offender to threaten both of them. 33. I accept that there is a basis for a finding of special circumstances given the clear need expressed by both Community Corrections and Ms Hubner to have the offender undertake significant rehabilitation courses and programs to overcome the temptation to use drugs and engage in antisocial behaviour, and that will be required over a lengthy time.For those reasons there will be a reduction in the statutory ratio to reflect the finding of special circumstances. 34. The orders that I make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 4 years, 6 months, to commence on 27 May 2017 and expiring on 26 November 2021. 3. I impose a non-parole period of 2 years, 9 months, expiring on 26 February 2020. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. Count 1 (66918681/001): 3 months 2. Count 2 (64273150/005): 2 years 3. Count 3 (64273150/006): 18 months 4. Count 4 (64273150/002): 1 year 5. Count 5 (64273150/007) : 2 year 6. Count 6 (64273150/003): 2 year 1. I find special circumstances. 2. Section 166 matter taken into account with no further penalty. Note – These extempore remarks were revised without access to the court file