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District Court 28 July 2023

R v Tubakibau

[2023] NSWDC 294

Assault & violenceDomestic & family violence

Citation: R v Tubakibau [2023] NSWDC 294
Court: District Court of New South Wales
Date: 28 July 2023
Judge: Scotting DCJ

Background

The offender, a 29-year-old man, appeared for sentencing after pleading guilty in the District Court to two counts of domestic violence offences against his partner of three to four years and her seven-year-old daughter. The offences arose from a single incident in the early hours of 26 January 2022 at a Glebe apartment.

The incident began with a jealousy-fuelled argument over an Instagram post and escalated into a prolonged and violent attack. The offender damaged property, held a knife to his own throat in front of the child, choked his partner for at least 30 seconds, and then punched her repeatedly in the face with a closed fist. When the child attempted to intervene, the offender pushed her in the face and pulled her hair. Police arrived to find blood throughout the apartment, with the offender standing over the primary victim.

The primary victim sustained severe injuries, including complex facial fractures requiring surgical intervention, orbital floor fractures, facial swelling, and ligature marks to her neck. Two additional offences (intentionally choking without consent and destroying property) were placed on a Form 1 to be taken into account on the principal count.

  • What sentence was appropriate for a guilty plea to causing grievous bodily harm with intent (a domestic violence offence) in circumstances involving choking, serious punching, and property damage?
  • What weight should be given to the guilty plea discount under the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • How to treat the Form 1 offences in the overall sentencing exercise.
  • What mitigating factors, including background, addiction, and mental health, affected the sentence.

Decision

Scotting DCJ identified the offending as serious domestic violence perpetrated in the presence of a child, over a sustained period, with significant premeditation in escalation. The court found that the primary victim suffered grave physical injury requiring surgery, and that both victims continued to experience ongoing psychological harm. The offender's conduct warranted a focus on specific deterrence, denunciation, and retribution.

The offender received a 10% discount on sentence for his guilty plea in the District Court, consistent with section 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999. The court considered the offender's personal circumstances, including that this was his first time in custody and that he had significant addiction and mental health issues, but did not treat these as substantially mitigating given the gravity of the offending.

Special circumstances were found, warranting a longer parole period relative to the head sentence. The court reasoned that first-time custody and the offender's mental health and addiction needs required a longer period of post-release supervision. The Form 1 offences, including the choking and property damage, were taken into account and were found to increase the need for specific deterrence, denunciation, and retribution.

The court considered the offender's reference to Ngatamarki v R [2016] NSWCCA 155 as a comparable case, but declined to follow it as a sentencing pattern. Scotting DCJ concluded that the factual circumstances in the present case warranted a substantially harsher outcome.

Orders Made

  • The offender was convicted on both counts.
  • An aggregate term of imprisonment of 7 years and 6 months was imposed, with a non-parole period of 5 years, commencing 26 January 2022.
  • Non-parole period expires 25 January 2027; head sentence expires 25 July 2029.
  • The offender is eligible for release on parole on 25 January 2027.
  • Component sentences (before aggregation) were: Count 1 (including Form 1 matters), 7 years with a non-parole period of 4 years and 6 months; Count 2, 18 months.

Key Takeaways

  • The District Court applied a 10% guilty plea discount under section 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999, reflecting that the plea was entered in the District Court rather than at an earlier stage.
  • A finding of special circumstances can be made where a first-time custodial offender has significant addiction and mental health issues, supporting a longer parole supervision period relative to the head sentence.
  • Form 1 domestic violence offences, including non-consensual choking, were treated as aggravating the principal offence and as independently increasing the need for specific deterrence, denunciation, and retribution.
  • Where a comparable sentencing decision is cited by the defence, the court is not bound to treat it as establishing a sentencing pattern, particularly where factual distinctions support a materially different outcome.
  • Prolonged physical violence against an intimate partner in the presence of a child, resulting in injuries requiring surgical intervention, will attract substantial head sentences even where personal mitigating circumstances are present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 37(1A), 61, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D(2)(b), 53A

Cases
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Hoskins v R [2021] NSWCCA 169
- Muldrock v R (2011) 244 CLR 120
- Ngatamarki v R [2016] NSWCCA 155
- Palijan v R [2010] NSWCCA 142
- R v Henry (1999) 46 NSWLR 346
- R v Olbrich (1999) 199 CLR 270
- R v Todorovic [2008] NSWCCA 49