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District Court 13 December 2022

R v FAUMUINA

[2022] NSWDC 629

Assault & violenceFirearms & weapons
SENTENCING IMPRISONMENT STANDARD NON PAROLE PERIOD

Citation: R v FAUMUINA [2022] NSWDC 629
Court: District Court of New South Wales
Date: 13 December 2022
Judge(s): Noman SC DCJ

Background

The offender was sentenced for two serious offences involving a machete, each directed at a different victim, separated by approximately 17 months. The first offence occurred on 4 March 2019, when the offender entered the home of an acquaintance while he was asleep and struck him multiple times with a machete, causing deep lacerations to his right hand, right arm, and chest. The victim suffered grievous bodily harm and underwent surgery to repair severed tendons and ligaments. He developed PTSD and continues to require medication.

The second offence occurred on 30 August 2020. The offender and co-offenders, believing a second victim was responsible for setting fire to a friend's property, pursued him on foot while wearing face coverings and armed with weapons. The offender used a machete during the attack, which also involved a co-offender armed with a kitchen knife. The second victim sustained a chest wound that penetrated the lung, required a chest tube, and involved a fractured rib, among other injuries. The offenders also demanded and took property from the victim during the attack.

The offender pleaded guilty to both offences: causing grievous bodily harm while being reckless as to causing actual bodily harm (Count 1), and causing grievous bodily harm with intent to cause grievous bodily harm (Count 2). Sentencing proceeded in the District Court before Noman SC DCJ.

  • What sentences were appropriate for each offence, taking into account the objective seriousness of the conduct, the nature of the injuries, and the circumstances of each attack?
  • What weight should be given to the offender's guilty pleas, personal circumstances, and mental health background?
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence term.
  • What degree of accumulation was required to ensure the combined sentence adequately reflected the separate and serious nature of each offence?

Decision

On Count 1, the court identified several aggravating features: the attack occurred in the victim's own home while he was asleep and vulnerable; the machete was brought to the scene by the offender; it was used multiple times; and the victim posed no threat whatsoever. The court rejected any suggestion the machete had been present in the home, finding the offender entered with it and used it immediately. The overall conduct was treated as planned in the sense of a coordinated meeting, though the court declined to find the specific violence was premeditated.

On Count 2, the court found the offending was more clearly planned. The offender and co-offenders discussed how they would "get" the victim before pursuing him, and they wore face coverings and carried weapons. The attack was sustained and involved multiple offenders acting jointly. The victim sustained life-threatening injuries. The court noted the offender had also laughed about the first assault in a conversation shortly before committing the second offence, which bore on his attitude to the earlier violence.

The court accepted that special circumstances existed, justifying a variation of the standard statutory ratio between non-parole period and head sentence. Relevant factors included the offender's need for extended supervision in the community to address criminogenic factors, the impact of COVID-19 restrictions making custody more onerous, and the effect of accumulation. The court described rehabilitation prospects as "guarded," noting the psychologist's assessment of low-to-moderate risk as "optimistic." General deterrence and denunciation were treated as important considerations given the serious and weapon-based nature of both offences.

A 5% reduction was applied to both sentences to reflect the guilty pleas. The court concluded that no sentence other than full-time imprisonment was appropriate and that some accumulation was necessary, as no single sentence could adequately capture the separate and serious nature of the two offences.

Orders Made

  • Count 1: Imprisonment of 5 years and 8 months, with a non-parole period of 3 years and 4 months, commencing 24 May 2021; eligible for parole on 23 September 2024 (statutory ratio varied to 58%).
  • Count 2: Imprisonment of 7 years and 7 months, with a non-parole period of 4 years and 3 months, commencing 24 November 2022; eligible for parole on 23 February 2027 (statutory ratio varied to 56%).
  • Effective overall sentence: 9 years and 1 month imprisonment, with a non-parole period of 5 years and 9 months (overall ratio 63%).
  • The offender was convicted of both offences.

Key Takeaways

  • The District Court held that where two serious weapons offences involve separate victims and are committed 17 months apart, some accumulation of sentences is required, as a single sentence cannot adequately reflect the distinct gravity of each event.
  • Attacking a person in their own home while they are asleep constitutes an aggravating circumstance, elevating the seriousness of the offence because the victim is in a position of particular vulnerability and unable to take protective action.
  • Special circumstances justifying a variation to the statutory non-parole ratio can arise from a combination of factors, including the need for extended post-release supervision, the additional burdens of custody during COVID-19 restrictions, and the compounding effect of accumulated sentences.
  • A 5% discount on sentence for a guilty plea reflects a limited, rather than full, utilitarian benefit where the circumstances of the plea are not elaborated upon as attracting a higher reduction.
  • Guarded rehabilitation prospects and the offender's demonstrated attitude toward prior violence, including laughing about the first attack shortly before committing the second, weigh against optimistic risk assessments and support the continued relevance of personal deterrence at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (offences of causing grievous bodily harm reckless as to actual bodily harm, and causing grievous bodily harm with intent)

Cases: No cases were cited in the judgment text provided.