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District Court 1 October 2021

R v Auimatagi

[2021] NSWDC 668

Assault & violenceDrugsTheft & property
CRIME RELEVANT FACTORS ON SENTENCE OFFENCE PROVOKED BY THREATS MEDICATING WITH ILLICIT DRUGS STRONG PRO SOCIAL SUPPORTS

Citation: R v Auimatagi [2021] NSWDC 668
Court: District Court of New South Wales
Date: 1 October 2021
Judge: Haesler SC DCJ

Background

The offender, a New Zealand-born man in his late thirties residing in Australia, pleaded guilty to aggravated break and enter with intent to commit a serious indictable offence (intimidation). He attended a residential property in Warilla armed with a baseball bat and an axe, kicked in the front door, entered the premises with a companion, and caused damage to a television and a dryer. The victims and their three children were not home at the time.

The offending arose from a dispute over a $250 drug debt owed to the male victim. The offender said he had received threats, including a threat that he would be killed when collecting his daughter from school, and that the victims would "run through" his house. Under the influence of methylamphetamine and in a state of anger, he took it upon himself to confront the victim directly, arriving armed and in company.

The offender had been on remand since his arrest on 18 September 2020. He had a limited prior criminal record, including property damage and a road rage incident, but no significant history of violence. He had strong family and community support, and a consulting psychologist had prepared a comprehensive report addressing his mental health and history of childhood trauma.

  • Whether a full-time custodial sentence was required, or whether the sentence could be served by way of an Intensive Correction Order (ICO)
  • How the offender's childhood trauma (including a serious sexual assault) and resulting mental health conditions should be weighed in assessing moral culpability
  • Whether the threats that provoked the offending operated as a mitigating factor
  • Whether the offender's drug dependence and its causal connection to the offending were relevant to sentence
  • Whether the prospect of deportation under the Migration Act 1958 was a relevant sentencing consideration
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio

Decision

Haesler SC DCJ found that the offending clearly crossed the threshold requiring a custodial sentence under s 5 of the Crimes (Sentencing Procedure) Act 1999. Entering an occupied family home armed with multiple weapons and with intent to intimidate demanded a term of imprisonment. The matter on the Form 1 (property damage) modestly increased the penalty.

The court substantially reduced the offender's moral culpability by reference to his childhood history of serious sexual trauma. Drawing on Bugmy v The Queen (2013) 249 CLR 571, Haesler SC DCJ accepted that exposure to violence in childhood can help explain a resort to violence under stress, and that the inability to control that impulse may attract substantially reduced moral culpability. The psychologist's report confirmed diagnoses of major depressive disorder, PTSD, generalised anxiety disorder, and substance use disorder, and established a causal chain from external stressors through mental illness to drug use and ultimately the offence.

The court accepted that the threats made to the offender constituted provocation in a factual sense, while making plain they did not justify the conduct. The drug debt and related threats were treated as precipitating factors. The court also acknowledged the offender's strong prosocial supports, his demonstrated capacity for law-abiding employment, and the disruption that a lengthy custodial sentence would cause to his family and children. On the deportation issue, the court held that the prospect of deportation under the Migration Act 1958 was not a relevant sentencing factor.

Haesler SC DCJ declined to impose an ICO, concluding that a full-time custodial sentence was the appropriate disposition but that the offender's rehabilitation could be adequately managed on parole. The court found special circumstances, warranting a non-parole period significantly shorter than the standard ratio, on the basis that the offender required extended supervision and support in the community to address his drug addiction and the underlying trauma driving it.

Orders Made

  • Convicted of aggravated break and enter with intent to commit a serious indictable offence
  • Form 1 matter (property damage) taken into account
  • Total sentence: 2 years and 3 months, commencing 18 September 2020
  • Non-parole period: 1 year and 2 months (release to parole on 17 November 2021)
  • Parole period: 1 year and 1 month (sentence expires 16 December 2022)
  • Parole condition: the offender must accept the supervision and directions of the Probation and Parole Service, including compliance with drug, alcohol, and psychological treatment programs

Key Takeaways

  • The District Court confirmed that aggravated break and enter involving multiple weapons and intent to intimidate crosses the custodial threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999, even where the victims were absent and physical harm was limited.
  • Applying Bugmy v The Queen, the court found that childhood sexual trauma and its long-term psychological consequences can substantially reduce moral culpability for violence, particularly where a causal connection exists between that trauma, subsequent mental illness, substance abuse, and the offending conduct.
  • Provocation by threats does not justify vigilante conduct but may be treated as a mitigating circumstance; here, the threats were accepted as a precipitating factor that moderated the sentence.
  • Prospects of deportation under the Migration Act 1958 were held to be an irrelevant consideration in the sentencing exercise.
  • A finding of special circumstances to extend the parole period beyond the standard ratio is available where the offender requires substantial community-based treatment and support for drug dependence and underlying trauma, and where a supervising authority can adequately manage rehabilitation without a full-time ICO.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Procedure Act 1986 (NSW)
- Migration Act 1958 (Cth)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 5
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Nasrallah v R [2021] NSWCCA 207
- R v Edwards (1996) 90 A Crim R 510
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Tepania v R [2018] NSWCC 247