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District Court 25 May 2020

R v TALIMALIE; R v LEAVAI; R v JL

[2020] NSWDC 229

Assault & violence
CRIME SENTENCING GRIEVOUS BODILY HARM WITH INTENT ACTUAL BODILY HARM IN COMPANY AFFRAY THREE CO

Citation: R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229
Court: District Court of New South Wales (Wagga Wagga)
Date: 25 May 2020
Judge(s): Lerve DCJ

Background

In the early hours of 1 October 2017, three offenders, Raymond Talimalie, Anzac Leavai, and JL (a juvenile at the time), were at the intersection of Boorowa and Main Streets in Young, NSW, after attending a 50th birthday party at the local RSL Club. Each had consumed alcohol. Following an incident involving a woman named Harriet Pettit and the primary victim Timothy Norman, the offenders launched a violent group assault on Norman, including kicking and stomping on him while he lay on the ground. Norman sustained fractures to his jaw and skull among other serious injuries.

A bystander, Coedie Freeman, intervened to assist Norman and was himself assaulted, sustaining injuries. The offenders' conduct also constituted an affray, causing several other people present to fear for their personal safety. JL faced an additional charge of common assault against a further victim.

After a jury trial at the Wagga Wagga District Court, all three offenders were found unanimously guilty on all counts. The sentencing proceedings were notably contentious, with counsel unable to agree on the facts or even on the principles to be applied to resolve factual disputes.

  • What facts could the sentencing judge find, consistent with the jury verdicts, and to what standard of proof?
  • Whether the standard non-parole period for the s 33(1)(b) offence applied to the juvenile offender JL.
  • Whether the non-s 33(1)(b) offences involving JL should be dealt with under the Children (Criminal Proceedings) Act 1987 or as adult matters.
  • What sentences were appropriate for each offender, having regard to their individual circumstances, including JL's status as a juvenile at the time of offending.
  • Whether JL could serve any remaining sentence in a juvenile justice facility after turning 18.

Decision

Factual dispute and standard of proof. Following the principles in The Queen v Olbrich (1999) 199 CLR 270 and Cheung v The Queen (2001) 209 CLR 1, the court applied the established rule that facts adverse to an offender must be proved beyond reasonable doubt, while facts favourable to an offender need only be established on the balance of probabilities. The sentencing judge conducted a comprehensive review of the trial evidence and made factual findings within those constraints.

The juvenile offender JL. Because JL was a juvenile at the time of offending, the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 did not apply to him for the s 33(1)(b) charge. The court considered the Children (Criminal Proceedings) Act 1987 in determining how to deal with JL's remaining offences. Particular weight was placed on the importance of rehabilitation for juvenile offenders, and significant special circumstances were found, resulting in a non-parole period set at approximately 53 percent of the total sentence.

Adult offenders Talimalie and Leavai. The court sentenced both adult offenders, applying the standard non-parole period framework. Each received an aggregate sentence with a non-parole period set at two-thirds of the total term, reflecting a finding of special circumstances, the reasons for which were detailed in the judgment.

Placement of JL post-sentence. By the time of sentencing, JL had turned 19. Under s 19(3) of the Children (Criminal Proceedings) Act 1987, an offender convicted of a serious children's indictable offence cannot serve imprisonment as a juvenile after turning 18 unless specific conditions are met. The court was not satisfied that those conditions were established, and JL was directed to serve the remainder of his sentence in an adult correctional centre.

Orders Made

  • Raymond Talimalie: aggregate sentence imposed, with a non-parole period set at two-thirds of the total term; the court found special circumstances.
  • Anzac Leavai: aggregate sentence imposed, with a non-parole period set at two-thirds of the total term; the court found special circumstances.
  • JL: aggregate sentence of 4 years 3 months, with a non-parole period of 2 years and 3 months commencing 2 December 2019 and expiring 1 March 2022; balance of term on parole from 2 March 2022 to 1 March 2024.
  • The court recommended that each offender's release to parole be conditioned on supervision by the Department of Community Corrections.
  • JL directed to serve the remainder of his sentence in an adult correctional centre.

Key Takeaways

  • A sentencing judge following a jury trial must make factual findings consistently with the verdicts: facts adverse to an offender require proof beyond reasonable doubt, while favourable facts need only be established on the balance of probabilities.
  • The standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999 does not apply where the offender was a juvenile at the time of the relevant offence, even when the charge (here, s 33(1)(b) of the Crimes Act 1900) would otherwise attract one.
  • Under s 19(3) of the Children (Criminal Proceedings) Act 1987, a juvenile offender convicted of a serious children's indictable offence cannot continue to serve their sentence in a juvenile justice facility after turning 18 unless specific statutory conditions are satisfied.
  • Rehabilitation carries particular weight when sentencing juvenile offenders, and can justify a significant finding of special circumstances that produces a non-parole period well below the statutory two-thirds benchmark.
  • Where co-accused are sentenced together but have materially different personal circumstances (including age at the time of offending), the sentencing exercise for each offender is conducted individually, and the applicable legislative frameworks may differ between them.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 59(2), 61, 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 19
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Cheung v The Queen (2001) 209 CLR 1
- R v Storey [1998] 1 VR 359
- Bugmy v The Queen [2013] HCA 37
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Strbak v The Queen [2020] 94 ALJR 374; [2020] HCA 10
- Mule v The Queen [2005] HCA 49
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- KT v R [2008] NSWCCA 51
- Haoui v R (2008) 188 A Crim R 331; [2009] NSWCCA 209
- Casella v R [2019] NSWCCA 201
- Cross v R [2019] NSWCCA 280
- Karout v R [2019] NSWCCA 253; [2020] HCASL 56
- Imbornone v R [2017] NSWCCA 144
- Thammavongsa v R [2015] NSWCCA 107
- McCullough v R [2009] NSWCCA 94
- Mitchell & Gallagher v The Queen (2007) 177
- Fangaloka v The Queen [2020] HCASL 12