Citation: R v Tafuna Taumalolo [2021] NSWSC 1412
Court: Supreme Court of New South Wales
Date: 5 November 2021
Judge: Davies J
Background
The offender pleaded guilty to the murder of Alex Ioane, an 18-year-old who was killed at a 16th birthday party in Ingleburn on 24 May 2019. The offender was a member of the Claymore Boys gang and attended the party with five co-accused, who have pleaded not guilty and were committed for trial. The deceased had no gang affiliations.
Following an altercation at the party, the offender and co-offenders were ejected from the premises. Once outside, they surrounded the deceased and subjected him to a sustained and violent group assault. The offender was specifically observed kicking and stomping on the deceased's torso, face, and head while he lay on the ground. The deceased died at the scene from traumatic basal subarachnoid haemorrhage.
The offender was arrested two days later and has remained in custody since 26 May 2019. He was under the influence of drugs and alcohol at the time of the offence. He pleaded guilty on 20 August 2021, after committal for trial to the Supreme Court.
Legal Issues
- Whether the objective seriousness of the offending placed it at, below, or above the mid-range for murder
- The appropriate weight to be given to the offender's youth, remorse, and prospects of rehabilitation
- The relevance of the offender's drug and alcohol intoxication to moral culpability
- The discount applicable for a plea of guilty entered after committal for trial
- Whether the more onerous conditions of incarceration during the COVID-19 pandemic should reduce the sentence
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term
Decision
Davies J assessed the objective seriousness of the offending as slightly below the mid-range. While the attack was sustained, involved stomping on the head and face of the deceased, and formed part of a group assault, the Crown did not press for a finding of extreme culpability warranting life imprisonment. The offender's intoxication and the absence of a weapon in his own hands were among the factors considered in placing the offending below the mid-range.
The court gave weight to the offender's youth. At the time of the offence, he was 18 years old. His age supported a finding of reasonable prospects of rehabilitation and a lower risk of reoffending, and warranted some reduction in the emphasis on general deterrence. The court nonetheless noted that general deterrence remains an important sentencing consideration in cases of this kind.
The court accepted that the offender was genuinely remorseful. Evidence from his sister on the night of the killing, and his subsequent guilty plea, supported that finding. However, the court also noted that the offender had initially lied to police and had burned his clothing on his sister's advice, which were relevant to the overall picture.
On COVID-19, Davies J acknowledged uncertainty about whether McKinnon v R established a general principle requiring sentence modification in all cases during the pandemic, or whether particular evidence of hardship was needed. In the absence of specific evidence, the court nonetheless took into account, in a general way, that custodial conditions had been and may continue to be more onerous during the pandemic. No finding of special circumstances was made to adjust the statutory non-parole ratio. A 10% discount was applied for the guilty plea under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Orders Made
- The offender was sentenced to a total term of 18 years and 10 months imprisonment
- Non-parole period of 14 years and 1 month, commencing 26 May 2019 and expiring 25 June 2033
- Balance of term of 4 years and 9 months, expiring 25 March 2038
- First eligible for parole on 25 June 2033
- The court noted that, as the offender had been convicted of a serious violence offence, the State may apply for an order under the Crimes (High Risk Offenders) Act 2006 (NSW) before the sentence expires
Key Takeaways
- A guilty plea entered after committal for trial attracts a 10% sentencing discount under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), as applied in this case.
- Group attacks involving sustained kicking and stomping on a defenceless victim will be assessed as serious murder cases, but placement within the range of objective seriousness remains fact-specific, with intoxication and absence of a weapon among potentially moderating factors.
- Youth at the time of the offence supports findings of rehabilitation prospects and lower reoffending risk, and may reduce the weight given to general deterrence, though general deterrence retains importance in cases of lethal group violence.
- The Supreme Court acknowledged uncertainty in the case law about whether McKinnon v R required sentencing courts to reduce all sentences for COVID-19 custodial conditions as a general principle, or only where particular hardship was established on evidence. Davies J adopted a cautious middle path, giving some weight to the pandemic's effect on conditions without direct evidence of individual impact.
- No finding of special circumstances was made, leaving the standard statutory ratio between the non-parole period and the balance of term in place.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Charbaji v R [2019] NSWCCA 28
- Howard v R [2019] NSWCCA 109
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Lai v R [2021] NSWCCA 217
- McKinnon v R [2020] NSWCCA 106
- R v Fahda [2013] NSWCCA 86
- R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252
- R v Loveridge [2014] NSWCCA 120
- R v Mills (Unreported, NSWCCA, 3 April 1995)
- R v Pocock [2008] NSWSC 1435
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Wang [2020] NSWSC 1335
- R v Wilson [2005] NSWCCA 112
- R v Wong [2010] NSWSC 171