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District Court 7 July 2022

R v Tapusoa

[2022] NSWDC 538

Assault & violenceFraud & dishonesty

Citation: R v Tapusoa [2022] NSWDC 538
Court: District Court of New South Wales
Date: 7 July 2022
Judge: Buscombe DCJ

Background

The offender, a 20-year-old man at the time of the offending, pleaded guilty to detaining a 17-year-old victim without consent with intent to obtain an advantage, namely to compel the victim's brother to attend the premises, while occasioning the victim actual bodily harm. The offence occurred on 8 May 2021 at a granny flat in Leumeah. An intimidation offence, involving the offender raising a pair of scissors over the victim's head and threatening to remove his eye, was placed on a Form 1 to be taken into account on sentence.

The offender and the victim's brother had a longstanding grievance: the offender believed the brother had set him up to be assaulted approximately a year earlier. When the victim arrived at the granny flat that evening to socialise with mutual friends, the offender used the opportunity to extract the brother's attendance by force. Over roughly two to three hours, the offender repeatedly punched, kicked, and kneed the victim, threatened to shoot him, compelled him to provide his phone and banking passwords, and stood by while approximately $1,033 was transferred from the victim's bank account to the co-offender's account.

The detention ended only when the victim's father and police arrived near the scene. The victim was hospitalised overnight with bruising, swelling, and lacerations. The offender also committed the offence while subject to three conditional release orders without conviction, imposed in 2019 for offences including assaulting and intimidating police.

Legal Issues

  • What is the objective seriousness of the principal offence of detaining for advantage with actual bodily harm under s 86(2)(b) of the Crimes Act 1900 (NSW)?
  • What weight should be given to the offender's youth and status as a young adult offender, and how does that affect the balance between rehabilitation and general deterrence?
  • What mitigating effect, if any, arises from the offender's traumatic childhood, Alcohol Use Disorder, limited criminal history, and early guilty plea?
  • Whether special circumstances exist justifying a departure from the standard ratio between the non-parole period and the balance of term.
  • What orders should be imposed on the three conditional release orders that were breached by the principal offending?

Decision

Objective Seriousness

Buscombe DCJ assessed the offence as well above a low-level example and approaching the middle of the range for this type of offending (at [28]). The detention lasted approximately two to three hours and involved sustained, repeated violence including punches, kicks, a knee to the ribs, threats to shoot the victim, threats with scissors, and coercion to access the victim's banking application (at [25]-[28]). The fact that the victim and the offender had no prior animosity, and that the victim did nothing to provoke the assault, weighed against the offender (at [26]).

Young Adult Offender Principles

The offender was 20 years old at the time of the offence, making him a young adult offender in law (at [29]). Her Honour applied the principles summarised in Bullock v R and BP v R [2010] NSWCCA 159, under which greater weight is ordinarily given to rehabilitation and treatment than to general deterrence, denunciation, and retribution when sentencing a young adult (at [29]). Those principles did not, however, displace the need for a meaningful punitive response to serious offending.

Subjective Factors

The offender had no prior criminal convictions, entitling him to some leniency (at [30]). He had experienced a traumatic childhood involving domestic violence and excessive alcohol use by his father, corroborated by oral evidence, which attracted the principles in Bugmy v R [2013] HCA 37 to a limited degree (at [48]). However, because he was well provided for materially and educated, the reduction in moral culpability was assessed as limited (at [48]). The offender was diagnosed with Alcohol Use Disorder, scoring 26 on the Alcohol Use Disorders Identification Test, and had abstained from alcohol and drugs since incarceration (at [38]-[39]). Intoxication at the time of the offence was not treated as a mitigating factor (at [49]). The early guilty plea attracted a 25% discount, and the court accepted there was some genuine remorse, though the offender lacked complete insight into the seriousness of his conduct (at [50]).

Special Circumstances and Parole

Her Honour found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a longer parole period than the standard formula would produce (at [52]). The combination of factors supporting this finding included the offender's good prospects of rehabilitation, his youth, the fact this was his first custodial sentence, the need for community-based anger management assistance, and the more arduous conditions of custody during the COVID-19 pandemic (at [52]). The court found that, while rehabilitation had commenced, it was not yet complete, and a longer period on parole would assist its continuation (at [51]-[52]).

Orders Made

  • Sentence of three years imprisonment for the principal offence of detaining for advantage with actual bodily harm, comprising a non-parole period of one year and eight months and a balance of term of one year and four months, commencing 13 May 2021 and expiring 12 May 2024, with a non-parole period expiring 12 January 2023.
  • The three conditional release orders without conviction are revoked; convictions are recorded and three community correction orders imposed for two years from the date of sentence.
  • Standard conditions apply to the community correction orders, including no further criminal offending and supervision by Community Corrections upon release.

Key Takeaways

  • Young adult offender principles, as summarised in BP v R [2010] NSWCCA 159, direct a sentencing court to give greater weight to rehabilitation and treatment than to general deterrence and retribution, though the principle does not override the need for proportionate punishment for serious violence (at [29]).

  • Where an offender's traumatic childhood involving family violence falls within the Bugmy v R [2013] HCA 37 framework, the reduction in moral culpability may nonetheless be limited if the offender was materially provided for and received an education (at [48]).

  • Alcohol intoxication at the time of the offence is not a mitigating factor in sentencing, even where a diagnosed Alcohol Use Disorder is established and the disorder is linked to the offending conduct (at [49]).

  • Special circumstances justifying a longer parole period may be established by the combination of youth, first custodial sentence, incomplete but commenced rehabilitation, a need for community-based anger management, and the hardships of custody during the COVID-19 pandemic (at [52]).

  • A sustained detention of approximately two to three hours involving repeated violence, threats with weapons, and coercion to access a victim's financial accounts places an offence under s 86(2)(b) of the Crimes Act 1900 (NSW) well above the low end of the range and approaching the middle, even where the resulting physical injuries are not at the highest end of the actual bodily harm spectrum (at [27]-[28]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) , s 3A

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v R [2013] HCA 37