R v Tuwai

1. [1]

   HIS HONOUR: The offender is standing for sentence on the charge of murdering Nunia Wasakitoga Kurualeba on 8 July 2024. The offender and Ms Kurualeba had been in an intimate personal relationship. From the day he committed the crime the offender has admitted responsibility. While there was some delay in the matter proceeding through the Local Court due to the investigation of the offender’s fitness to plead and the availability of mental health impairment defences, when these matters were clarified he entered a plea of guilty at what the Crown accepts was the first available opportunity before he was committed for sentence to this Court on 10 October 2025.

2. [2]

   The facts relevant to the offending have been agreed between the Crown and the offender and my findings for the purposes of sentencing will be based upon those agreed facts (“the Agreed Facts”). My findings also rely upon the histories received by the forensic pathologist and neuropsychologist who examined and assessed the offender for the purpose of these proceedings, at least to the extent to which those histories appear to me to be reliable.

3. [3]

   In summary, the offender murdered Ms Kurualeba by stabbing her once in each of her chest and abdomen. The stab wound to Ms Kurualeba’s chest proved fatal. The murder occurred in the aftermath of the breakdown of their relationship and against a background of previous domestic violence perpetrated by the offender which seems to have escalated during the gradual breakdown of their relationship in the period leading up to the murder.

4. [4]

   It is also apparent from the Agreed Facts and from what the offender candidly told the experts that there was an aspect of coercive control to the relationship involving the offender surveilling Ms Kurualeba’s mobile phone and social media use. There is no doubt the offender intended to kill Ms Kurualeba. Indeed, it is not disputed that he admitted as much to investigating police following his arrest on the day of the murder. It is also apparent that this serious offending was planned and therefore involved premeditation. The motive appears to have been sexual jealousy about another man who was romantically interested in Ms Kurualeba and an unwillingness to allow Ms Kurualeba to live her own life without him.

Background and Facts Leading Up to the Murder

1. [5]

   The offender and Ms Kurualeba were both born and raised in Fiji. They were second cousins who had met each other but did not have much interaction in Fiji as they lived some distance from each other. The offender travelled to Australia on a student visa in October 2022 when he was 20. Ms Kurualeba likewise came to Australia on a student visa, in August 2023. She was then aged 20.

2. [6]

   After Ms Kurualeba’s arrival in Australia, she and the offender formed a relationship and soon thereafter moved in together at the Kingswood home of the offender’s aunt. They resided together there until November 2023, when Ms Kurualeba moved to premises at Hassall Grove without the offender to live with her younger sister and her partner. In February 2024 the offender and Ms Kurualeba resumed cohabitation in the home of the offender’s aunt. They moved to an apartment, also in Kingswood, on 14 April 2024. They had been living in this residence when the offender murdered Ms Kurualeba. They shared those premises with four other Fijian nationals, one of whom was a cousin of Ms Kurualeba, a Ms Adivika Tinai, who plays an important part in this narrative.

3. [7]

   From the Agreed Facts, Ms Kurualeba first complained of the offender’s violence in about February 2024. There is no dispute about this. In his three interviews with Ms Sarah Brann, a forensic psychologist, whose report of 28 March 2025 formed part of Exhibit 1, the offender was candid about his physical abuse of Ms Kurualeba. Ms Brann summarised the matter in the following terms (Brann Report [57]):

4. [8]

   During the week before the murder, Ms Kurualeba complained on three occasions to her younger sister who was living nearby of the offender’s violence towards her. She told her sister that the offender had said, “One day, I will kill you”. The younger sister counselled her to report the threats to the police, but, tragically, Ms Kurualeba did not do so.

5. [9]

   The deterioration in their relationship came to a head on 6 July 2024. At around midnight housemates heard the offender and Ms Kurualeba fighting. Their dispute continued into the early hours of 7 July 2024. At about 3 am, Ms Tinai heard Ms Kurualeba call out that the offender had punched her. Ms Tinai ran to Ms Kurualeba’s assistance. Entering their bedroom, she saw the offender’s right hand raised in a fist above his head. Ms Tinai pushed him away from Ms Kurualeba who complained that the offender had punched her to the back of the head. In Ms Tinai’s presence, Ms Kurualeba packed a bag with some of the offender’s possessions and shepherded him out of the bedroom and out of the apartment, locking the door behind him.

6. [10]

   At about 10:30 a.m. on 7 July 2024, the offender broke back in to the apartment through an open window in one of the bedrooms which was then unoccupied because its occupants were away for the weekend. Ms Tinai and Ms Kurualeba were awoken by him calling out and banging on the bedroom door. There was a confrontation between the offender and Ms Kurualeba which involved some pushing on either side. The offender claimed to have come back to pick up the rest of his possessions. Ms Kurualeba, with the help of Ms Tinai, packed the remainder of the offender’s belongings into a travel bag, which Ms Kurualeba threw at him. The offender took the bag and left the premises.

7. [11]

   The offender telephoned his uncle saying that he had a big problem with Ms Kurualeba and asking whether he could spend the night at the uncle’s home in Bankstown. The uncle agreed. After the offender arrived at the uncle’s home they consumed a bottle of bourbon and had 10 beers between them, doubtless discussing the offender’s troubles.

8. [12]

   I regard it as significant to the dreadful events that subsequently occurred that the offender suddenly decided to leave his uncle’s place and return to Kingswood. Before making this decision, he appears to have gone outside to think. His uncle was surprised by the offender’s decision to leave but walked him back to the train station. As they walked, the offender telephoned Ms Kurualeba. His uncle could tell that he was angry. He was remonstrating with her, telling her that he was on his way home to Kingswood. The offender then called one of their housemates who was older than the others. She thought he sounded angry. He spoke in a raised voice and demanded that she open the door for him when he arrived at the Kingswood apartment. Ms Kurualeba, Ms Tinai and another cousin left the apartment and travelled to the home of Ms Kurualeba’s younger sister to spend the night there. I am satisfied this was to avoid seeing the angry offender.

9. [13]

   When he arrived at the Kingswood unit and found that Ms Kurualeba was not there, the offender sent her an abusive message on Facebook messenger which concluded, “Start saying goodbye to your family. Until we meet again RIP”. He then spoke to Ms Tinai on the telephone saying, “Tell that girl I will suicide her”. A short time later, he called Ms Kurualeba who swore at him and hung up. The offender asked the older housemate to call Ms Kurualeba, which she did. Ms Kurualeba told her about the offender’s violence towards her. She told Ms Kurualeba not to come back to the apartment if she did not feel safe. The older housemate had let Ms Kurualeba’s whereabouts slip. The offender travelled by train to the suburb where Ms Kurualeba’s younger sister lived, but apparently thought better of whatever was in his mind because he did not attend the premises but turned around and immediately returned by train to Kingswood. He apparently slept rough that night.

The Offender Murders Ms Kurualeba

1. [14]

   On the morning of Monday, 8 July 2024, Ms Kurualeba resolved to collect her belongings from the Kingwood apartment. She had formed the intention of returning to Fiji the following Saturday. She spoke to her mother in Fiji who counselled her against returning to the apartment, suggesting that she ask her cousins to collect her belongings. Regrettably, Ms Kurualeba chose to disregard this prescient advice because she believed the offender would have gone to work as normal. However, she enlisted the assistance of Ms Tinai and her other cousin to accompany her to the Kingswood apartment. Both of her cousins were concerned. They thought the offender might be there, but Ms Kurualeba was sure he would be at work.

2. [15]

   The trio travelled by public transport to Kingswood arriving by train at about 1:15 p.m. When they arrived at the front door of the apartment, which is on the first floor, Ms Tinai said she would go in first to check whether the offender was there. She would signal if it was safe for the others to enter. Ms Tinai opened the front door and walked to the bedroom Ms Kurualeba shared with the offender and saw that he was present. She signalled to Ms Kurualeba and her other cousin and all three of them tried to run away from the offender.

3. [16]

   I pause here to interpolate that it is evident, and I am so satisfied beyond reasonable doubt, that when he returned to the Kingswood apartment sometime during the morning of 8 July 2024, the offender was planning to kill Ms Kurualeba. The clearest evidence of this arising from the Agreed Facts is that when he arrived at the apartment, he took a large knife from the kitchen and hid it under a pillow in the bedroom he shared with Ms Kurualeba. It is also tolerably clear from the consideration that he had removed his belongings from the apartment the previous day that he had gone back solely for the purpose of confronting Ms Kurualeba to make good on the threats he had made to her cousins by telephone the night before, and the direct threats he had made to Ms Kurualeba by text message. He no longer had other business there. From the events of 6 and 7 July 2024, it could not have been lost upon him that Ms Kurualeba was done with their relationship and did not wish to see him again. While he did not tell the police the whole truth initially in his interview with them after his arrest, he told them that he had armed himself with the knife because “I want[ed] to end her life there”. I am satisfied that the offender returned to the Kingswood apartment to lie in wait for Ms Kurualeba for the purpose of killing her. I am satisfied that he was developing this plan in his mind from the time he decided to leave his uncle’s home the previous evening.

4. [17]

   When Ms Kurualeba and her cousins took flight, the offender gave chase. By the time he caught up with them, they had exited the apartment building and were running along a pathway leading to the road. He grabbed the deceased by her shirt yelling, “Come here”. Not for the last time that day, Ms Tinai tried to defend Ms Kurualeba, but the offender was able to push her away. Despite the pleas of Ms Kurualeba and the remonstrations of Ms Tinai, the offender forcibly dragged Ms Kurualeba back to the apartment. This involved a high degree of determination given the distance the women had travelled and the effort that must have been involved in dragging a struggling Ms Kurualeba back up the stairs and into the apartment. This level of effort and determination is another factor pointing to the intent of the offender.

5. [18]

   Once inside the offender dragged Ms Kurualeba into their bedroom locking the door behind them. Ms Tinai who had followed was at the door listening and trying to work out what was going on. She heard Ms Kurualeba calling out for help in the Fijian language. Ms Tinai attempted to open the locked door and called out to the offender to do so.

6. [19]

   The offender eventually opened the door and when Ms Tinai entered, she saw that Ms Kurualeba had blood on her shirt. It says a great deal about the offender’s determination and intent that notwithstanding the presence of a witness, no less that a near relative of Ms Kurualeba, he punched Ms Kurualeba in the head five times, which despite her attempts to defend herself, knocked her to the ground. In defence of Ms Kurualeba, Ms Tinai pushed the offender with some force causing him to fall over.

7. [20]

   Undeterred the offender leapt to his feet, grabbing the knife from where he had hidden it. He pushed Ms Tinai out of his way knocking her down. He then raised the knife above his head and in a swift downward motion stabbed Ms Kurualeba twice as she lay helpless on the floor; once to her right chest region and the other to her right abdomen. At post-mortem examination Ms Kurualeba was also found to have had a number of sharp incised wounds to her right upper chest which may have been inflicted with scissors seen in the offender’s possession at some stage. The forensic pathologist was unable to say in which order the stab wounds were inflicted.

8. [21]

   Not done yet, the offender raised the knife above his head as if to strike the still conscious Ms Kurualeba again, but Ms Tinai was able to regain her feet and kick the offender hard in the stomach. With great courage she grabbed the offender by the wrists struggling for possession of the knife. She continued to kick him and was able to disarm him by slapping the knife from his hands. When it fell to the ground another occupant of the apartment who had entered the bedroom grabbed it and threw it into the living room. Disarmed, and Ms Tinai having got the better of him, the offender took flight, taking Ms Kurualeba’s mobile phone with him as he went. He left the premises by leaping from the balcony which was not very high.

9. [22]

   Ms Tinai and other occupants of the apartment moved the still conscious Ms Kurualeba from the bedroom into the loungeroom. She was pleading for life saying, “I want to live”.

10. [23]

    Police arrived at 1:43 p.m. Ms Kurualeba’s ordeal had lasted about 15 or so minutes from her interception by the offender until he took flight. The police officers gave their immediate attention to Ms Kurualeba rendering first aid. Arriving ambulance officers took over the treatment of Ms Kurualeba, but she went into cardiac arrest due to her loss of blood. A specialist care flight medical team followed. Those professionals undertook what is referred to as a ‘Clamshell Thoracotomy’ on Ms Kurualeba. This is a field surgical procedure to allow access to the organs in the thoracic cavity to enable manual cardiac compressions directly to the heart. They were also able to close the fatal incised stab wound to the right ventricle of Ms Kurualeba’s heart. Great efforts were made by the medical team and paramedics over the course of about one hour to save Ms Kurualeba’s life, but alas to no avail. Resuscitation efforts ceased at 2:42 p.m. and she was pronounced dead at the scene.

The Flight of the Offender

1. [24]

   The offender was not located by police until about 6:55 p.m. that evening. He was hiding in the garage of the Kingswood address where he had previously resided. As police entered, he appeared to be attempting to hang himself by means of a wire he had tied to a garage roof beam. He jumped from a chair just as the police entered. The wire was removed from his neck. He was uninjured. He was then arrested and taken to Penrith Police Station where he consented to be interviewed by police. As I have said, I have the firm impression when comparing his account to the objectively established facts that he did not tell the whole truth. However, he admitted stabbing Ms Kurualeba with the intention of killing her. He made it clear that sexual jealousy was his motive. He said from his inspection of Ms Kurualeba’s phone he had become aware that she was intending to return to Fiji, and he believed she was going to meet his romantic rival there.

Commendation

1. [25]

   I wish to interrupt these reasons to say that, sitting in the Court’s criminal jurisdiction, I never cease to be impressed by the dedication to the service of our community of first responders, by whom I mean, of course, police, ambulance officers and other medical personnel required to attend the scenes of serious crimes, often, as here, in the immediate aftermath of the infliction of grievous injuries by an absconding offender. Even for experienced officers and other personnel, these circumstances must be very trying and emotionally draining. Yet, time and time again, Judges see that without hesitation they come to the immediate aid of the victims of crime. Police officers are doubtless trained in first aid but treating seriously injured victims whose condition must command their immediate attention is far from their primary calling. I commend the officers for their efforts on behalf of Ms Kurualeba. So, too, the ambulance officers and other medical personnel involved. Clearly, great skill was brought to bear in their valiant attempts to save Ms Kurualeba’s life. All first responders involved are to be commended for their service.

2. [26]

   I wish to offer a particular commendation to Ms Adivika Tinai. No more could be asked of any person than she gave in defence of her cousin, Ms Kurualeba. She demonstrated courageous firmness and perseverance in seeking to protect her cousin from, and in fighting off, a determined armed offender. She acted completely without regard for her own safety. Where many would have balked, or at least hesitated, before putting themselves in harm’s way, she did neither. Through her perseverance, by successfully disarming the offender as he initiated what would have been his second knife attack on Ms Kurualeba, she afforded her cousin a chance of surviving the stab wounds already inflicted. Her bravery deserves everyone’s admiration and thanks.

Victim Impact Statement

1. [27]

   I have had the considerable advantage of receiving a Joint Victim Impact Statement on behalf of Ms Kurualeba’s family, written by her younger sister, Laite Kurualeba and her mother, Merelini Kurualeba. I must say, it is a very dignified and measured account of the great loss suffered by Ms Nunia Kurualeba’s extended family because of her death. I have no doubt, as they said, that the emotional trauma has been overwhelming. All family gatherings, which should be times of celebration, now feel incomplete and painful to them. The absence of their beloved daughter, sister and aunty serves as a constant reminder of what has been taken from them by the actions of the offender.

2. [28]

   I was very moved by their account.

3. [29]

   Serious crimes are committed against the community at large, and it is the community which is entitled to exact retribution and impose punishment: R v Dawes [2004] NSWCCA 363 at [13]. Nonetheless, as the prosecution have asked, I am entitled to take the family’s loss into account as an aspect of the harm done to the whole community and I will do so.

Subjective Circumstances

1. [30]

   The ultimate aim of a sentencing task is fixing a single sentence which is fit for the offence and for the offender. As the offender is the object of this task, it is appropriate to take into account his circumstances as far as they may be relevant to sentencing.

2. [31]

   As I have indicated, the offender is a Fijian national. He was born in March 2002 and was aged 22 when he murdered Ms Kurualeba. He is soon to turn 24.

3. [32]

   He was born and raised in fairly humble circumstances in a village in the highlands of Fiji. In common with their neighbours, his family worked the land growing kava, taro and bananas. The physical work was mostly his father’s responsibility, while his mother performed domestic duties including raising the children. The offender is the eldest of three children, having two younger sisters. His parents also took in their nephew, a cousin of the offender, two years’ older than him and raised him as their own. The cousin, who is now aged 28, is like an older brother to the offender.

4. [33]

   Despite the family’s humble circumstances, from the account the offender gave to the Forensic Psychologist, Ms Brann, he was adequately provided for and certainly cared for by his parents, who did not neglect their children.

5. [34]

   He attended the local primary school and later went to high school some distance away until a new secondary school opened nearer to the offender’s village. The offender worked on the family farm after school. His parents prescribed rules and boundaries for him, which he observed.

6. [35]

   Observance of the Christian religion was part of village life and important to his family. They attended church each Sunday. He was encouraged to work hard at school to improve his position in life. He describes his mother as kind, affectionate and supportive. He told Ms Brann his father was generally a quiet man with an interest in the guitar.

7. [36]

   His father was said to have been violent towards the offender’s mother when he had been drinking, but the offender said that his father was sober from the time the offender was eight. However, the offender says his father, as head of the family, expected all of the family to obey him and all were required to listen when he spoke. He disciplined the offender by corporal punishment, utilising a stick, hose or pipe as a “rod”. The offender would be punished at home in this manner for misdemeanours, including not listening to teachers or failing to do homework. Despite what he said about his father’s attitudes, the offender told Ms Brann that his father and mother navigated significant decisions for the family including expensive purchases in a consultative manner. The offender did not have any sense or experience of infidelity in his parents’ marriage.

8. [37]

   English is the offender’s second language, which he learnt from an early age as part of his schooling. While he lost some time at school due to working on the farm, he told Ms Brann that he completed Year 12, although I note that he told the Clinical Neuropsychologist, Dr Sally McSwiggan, whose report of 10 July 2025 forms part of Exhibit 1, that he left school at the end of Year 11 (McSwiggan Report [3]). Neither expert had the assistance of a qualified interpreter during their lengthy interviews with the offender, except Dr McSwiggan said she had the benefit of an interpreter for about 30 minutes during the last of three interviews she undertook with the offender.

9. [38]

   After his arrival in Australia, the offender generally seems to have been employed as a labourer in the construction industry working with his uncle for an NBN contractor installing cabling. There is no history recorded of any course of tuition taken on the student visa by which he arrived while in Australia.

10. [39]

    In Fiji, in addition to his work on the family farm, he acquired mechanical skills working for an uncle. Since he has been in custody the offender is working in a carpentry or joinery role, which he enjoys.

11. [40]

    The offender gave a history of substance use from his teenage years consisting of smoking marijuana two or three days per week, which, prior to his arrest, he had reduced to once per week. He also drank alcohol mainly on the weekend. The amount varied from between five and ten beers and two or three bourbons in a session. I have already recorded the evidence that he was drinking with his uncle the night before the murder. However, substance use does not appear to be a particular problem in his case, and I am not satisfied that he was intoxicated when he murdered Ms Kurualeba.

12. [41]

    The offender has no prior criminal record either in Australia or in Fiji. There is no history or suggestion in the expert reports of any relevant mental health condition or impairment. There is a question about the offender’s intellectual capabilities, which I will return to later in these reasons.

13. [42]

    He has been of good behaviour in custody and has not committed any infringements of the rules of prison discipline.

Factors Relevant to Sentencing

1. [43]

   The maximum penalty for murder is life imprisonment. Such a sentence must be imposed where the offender’s level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of life imprisonment: section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). Bad as this offending is, I am not of that view in this case, nor was the imposition of a life sentence urged upon me by the learned Crown Prosecutor. Notwithstanding the maximum sentence, I am empowered to impose a sentence of imprisonment for a specified term of years: section 21 of the Sentencing Act. This is the approach I will take.

2. [44]

   Even so, it remains important to bear in mind that life imprisonment is the maximum punishment for the crime of murder (section 19A of the Crimes Act 1900 (NSW)). Murder is also an offence for which Parliament has fixed a standard non-parole period of 20 years (Division 1A of the Sentencing Act). The recent amendment increasing the standard non-parole period for domestic violence murders into which category this case falls is not applicable to this offender, and I will accordingly put it out of my mind. But I will bear in mind that the maximum penalty and the standard non-parole period provide important guideposts for fixing the appropriate sentence in the case at hand.

3. [45]

   As I have already said, the object of the sentencing task is to fix the appropriate sentence for the offence and the offender, having regard to all relevant facts, matters and circumstances. The sentence must fit the offending, having regard to its objective seriousness; that is, the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime.

4. [46]

   As is often said, after treason, murder is the most serious offence known to our law. It must always be viewed as an objectively serious crime. However, it is an assessment of all of the circumstances informing the objective seriousness of the particular offending that must be made. The objective seriousness of the offending and the offender’s moral culpability for the offence are not the same thing and the distinction between them must be kept in mind. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. Moral culpability of an offender for the offence is concerned with his personal blameworthiness. Matters personal to an offender may be relevant to reducing an offender’s moral culpability.

5. [47]

   In the case of a standard non-parole period offence, as murder is, the assessment of the objective factors affecting the relevant seriousness of the offence is important for determining whether the standard non-parole period represents an appropriate component of the sentence for the offender: section 54B of the Sentencing Act.

6. [48]

   As the offender pleaded guilty at the earliest available stage, by force of statute he is entitled to the maximum reduction, being 25%, to any sentence that would otherwise have been imposed to reflect the utilitarian value of his plea: section 25D(5) of the Sentencing Act.

7. [49]

   It goes without saying that in any case of murder no penalty other than a long period of imprisonment is appropriate. As this a case where I am required to impose a sentence for a specified period of years, I will also be required to fix a non-parole period. The non-parole period is the minimum period of time that justice requires the offender to serve in prison. Unless I find special circumstances, by law the additional term during which the offender may be eligible for parole must not exceed one-third of the non-parole period. It should not be assumed, however, that an offender is automatically released on the first day on which he is eligible for parole. By law, an investigative process is undertaken by the State Parole Authority, not the Court, to determine whether a given offender in fact should be released on parole.

8. [50]

   Sentencing is not a purely logical exercise. Its purposes are various, overlapping and sometimes competing. In the present case, each of the purposes of sentencing are relevant. They are: ensuring the offender is adequately punished; making the offender accountable for his actions; denouncing the conduct of the offender; recognising the harm done to the victim and the community; preventing crime by general and specific deterrence; the promotion of the offender’s rehabilitation; and the protection of the community. They are not necessarily all of equal relevance to this case. To the extent they are relevant, I will take them into account without necessarily referring to them again specifically in these reasons.

Objective Seriousness of the Offending

1. [51]

   I will turn now to the assessment of the objective seriousness of the offending by reference to its features. As I made clear in my introductory remarks, it is agreed that when the offender stabbed Ms Kurualeba he had in his mind the actual specific intent of killing her. His intent was not the only somewhat less serious intent of inflicting serious personal injury. The offender wanted to end Ms Kurualeba’s life.

2. [52]

   Given the sustained assault upon her which took various forms and involved the adoption of differing means by the offender, there can be no doubt that Ms Kurualeba knew what was happening and would have been very frightened throughout the whole of her ordeal. In particular, notwithstanding the blows inflicted on her which caused her to fall to the ground, she was conscious and would have seen the offender raise the knife above his head in preparation for delivering the fatal stab wound. This would have been terrifying. She remained conscious after Ms Tinai successfully fought off the offender. From the words that she uttered she would have been aware that life was slipping from her.

3. [53]

   The offending involved planning and premeditation, including hiding the knife in a place where it would be readily available to him during his assault on Ms Kurualeba. I do not accept there is anything spontaneous about the murder of Ms Kurualeba. I accept the Crown submission that the stabbing of Ms Kurualeba was the culmination of an extended and violent assault by the offender on her. Not every blow or stab wound could be choreographed. But what happened to Ms Kurualeba, happened as planned.

4. [54]

   The motive for the murder was sexual jealousy and anger. Anger because Ms Kurualeba dared to exercise her right to end their abusive relationship and perhaps to form a new one. This is the ultimate form of coercive controlling behaviour. I accept the submission that this is an offence of murder committed by a man against his domestic partner motivated by anger, jealousy and control which elevates the objective seriousness of the offending.

5. [55]

   It is not always helpful to attempt to place the degree of objective seriousness evinced by a particular offence within a range or on a sliding scale and I will refrain from so doing. However, assessed by reference to its objective features only, the killing of Ms Kurualeba by the offender is a very serious case of murder.

Statutory Aggravating Factors

1. [56]

   The seriousness of the offending is aggravated by the consideration that the murder was committed in Ms Kurualeba’s home, a home she had previously shared with the offender. This was a place where she was entitled to feel safe and secure (section 21A(2)(eb) of the Sentencing Act).

2. [57]

   Of course, the offending involved the use of a weapon: section 21A(2)(c) of the Sentencing Act). It is notable that the offender resolved to use the knife during the planning phase of his offending. He hid it in a place where it would be easily available to him during his assault on Ms Kurualeba. I accept that the use of a weapon in the case of murder is not unusual. Often that consideration would lead to a conclusion that the use of a weapon does not significantly aggravate the seriousness of the offence. But there is a degree of aggravation in this case arising from the circumstances to which I have referred, namely, the planning.

3. [58]

   Additionally, while not a statutory factor, it is also well to bear in mind that this was not an isolated incident but formed part of the ultimate escalation of an ongoing pattern of domestic violence inflicted by the offender on Ms Kurualeba.

Mitigating Circumstances

1. [59]

   Mr Evers of learned counsel who appeared for the offender relied upon a number of factors in mitigation of the sentence which might otherwise be imposed on this offender for this offence. He argued that the offender’s moral culpability was reduced by a combination of his relative youth at the age of 22 years, low intellectual capacity and factors engaging with the principles stated in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) including being raised in a home where his father was violent towards his mother when affected by alcohol.

2. [60]

   I accept that the offender’s relative youth is of some significance. However, he is not a juvenile. While it may be accepted that many males are not fully emotionally developed until later in their 20s, Ms Kurualeba’s murder was not offending borne of the type of impulsive spontaneity that one may associate with the immaturity of youth. The offender’s relative youth reduces his moral culpability by only a little.

3. [61]

   I am not satisfied that the opinions of Ms Brann and Dr McSwiggan establish on the balance of probabilities that the offender is of low, near borderline, intelligence. Ms Brann expressed the view that the offender’s variable performance on some of the psychometric tests she administered placed him within the extremely low range of functioning in comparison with his age-matched peers. She said his verbal performance was in the bottom 1% for his normative age group (Brann Report [101]). However, this conclusion was qualified by the consideration that “[the offender’s] cognitive functioning may under-estimate his true abilities, due to being based upon verbal estimates of intelligence, and English being [the offender’s] second language”: Brann Report [141]. She also pointed out that standardised cognitive testing via remote platforms (as applied in this case because the offender was interviewed by AVL from custody) “requires both the assessor and the participant to access an iPad” (Brann Report [100]). But this was not possible due to the technological constraints imposed by Corrections NSW for conducting AVL appointments. Her results, therefore, cannot be said to be more than indicative because there was a margin of error potentially involved due to the non-standard testing conditions.

4. [62]

   Dr McSwiggan carried out neuropsychological testing on the offender. She expressed her impression in the following terms (McSwiggan Report [46]-[48]):

5. [63]

   I am not satisfied that the evidence establishes on the balance of probabilities that the offender has any cognitive impairment let alone a cognitive impairment that is clinically significant.

6. [64]

   In Bugmy, the High Court of Australia discussed the ways in which profound childhood deprivation may mitigate a sentence by attenuating an offender’s moral culpability. Their Honours said (at [43]-[44]):

7. [65]

   The offender’s humble upbringing and exposure for a limited period before his father’s sobriety to his father’s domestic violence when affected by alcohol falls a long way short of “an environment surrounded by alcohol abuse and violence”. There is just no evidence that he was exposed “to extreme violence and alcohol abuse”. Nor can his planned, pre-meditated murder of Ms Kurualeba be characterised as an impulsive recourse to violence when frustrated. I appreciate the dicta from Bugmy I have quoted must be understood in context. One is not interpreting a statute. Even so, one must proceed on the basis that the language is deliberately and carefully chosen and expressed. Their Honours can be taken as meaning what they say. I am not satisfied that the evidence in this case in any way engages the Bugmy principle.

8. [66]

   I do, however, accept, as I have said, the offender’s comparative youth, to some small measure, reduces his moral culpability.

Plea of Guilty and Criminal Record

1. [67]

   As I have said, the offender is entitled to a 25% discount in the sentence that would be otherwise passed for the utilitarian value of his plea. While he is yet young, the absence of prior criminal offending is relevant to the extent to which it suggests that generally speaking he was previously a person of good character. But his admission of being previously violent towards Ms Kurualeba during their relationship diminishes that usual inference and weighs against the leniency that might otherwise be available to a person with no criminal record. In any event, little weight can be given to this consideration because of the inherent seriousness of the crime of murder.

Remorse

1. [68]

   I am persuaded that the offender is genuinely remorseful. While as I have said more than once, he did not appear to tell police the whole truth when he consented to an interview with them, he did from that time admit his responsibility for the murder of Ms Kurualeba and confessed his motive for the crime and to a degree of planning. Remorse may develop over a period of time and the acceptance of legal responsibility for one’s crime, even a serious crime like murder, may be the starting point of the commencement of the journey to remorse.

2. [69]

   The plea of guilty is the clearest indication of the acceptance of legal responsibility. Even while his legal advisors were looking into the question of whether he was fit to plead and whether he might suffer from a mental health impairment reducing his responsibility and/or culpability, he made it quite clear, including to Ms Brann, that he intended to plead guilty.

3. [70]

   The fact that he has been of good behaviour in custody and undertaken useful employment there are also factors indicative of remorse and a desire to reform. During his time in custody, he has reconnected with his Christianity through the seminars run by Crossroads Prison Ministries. Under their auspices he has obtained a number of certificates for the completion of Bible study units. For some, he has attained high marks. This, too, in my view, is evidence relevant to remorse.

4. [71]

   As long ago as 1 August 2025, no doubt with assistance, he composed a letter to the Court acknowledging his obligation was to protect and care for Ms Kurualeba. He acknowledged that he had no right to harm her or anyone else. In the letter he apologised to Ms Kurualeba’s family and especially her mother. He promised to reform.

5. [72]

   All of these factors together persuade me that he is genuinely remorseful which, of itself, may be a significant mitigating factor. However, I am not persuaded that what appears to be the attempted suicide just before he was arrested is evidence of remorse. Equally, it may have indicated an attempt to defeat the interests of justice. There is no evidence the offender was planning a murder/suicide and the attempt occurred about five hours after the murder of Ms Kurualeba.

Rehabilitation and Risk of Reoffending

1. [73]

   It is often said that remorse is a necessary precondition of reform and rehabilitation. I accept the offender’s youth, his generally prior good record and his good conduct in custody are also favourable prognosticators for his reformation. At this early stage I assess his prospects for rehabilitation as good.

2. [74]

   There are, however, reasons for caution in this regard. First, it is inevitable that a substantial term of imprisonment must be imposed. This is likely to weigh heavily upon the offender, and he will be challenged in his determination to reform as the years go by. He will need continued help and support to stay the course. The extent to which that support is available from family here in Australia is not clear. It may be that the opportunities to engage in the appropriate courses will not be made available until later in his sentence. These factors complicate my assessment of the offender’s prospects of rehabilitation.

3. [75]

   Secondly, Ms Brann has administered statistically based tests to assess the offender’s risk of reoffending. These tests are not necessarily a sure guide, and they are not designed to be predictive. Moreover, they tend to have a large component of static loading provided by the history of this offending and his admissions in relation to other uncharged acts of violence committed against Ms Kurualeba. Statistically, given those factors, there is a risk of him committing other domestic violence offences generally, although the risk of him reoffending in the same way is statistically slight.

4. [76]

   Taking these factors into account, my conclusion is that one may be cautiously optimistic that his prospects of rehabilitation are good. Obviously, the risk of reoffending depends upon the course of rehabilitation. But if successful there will be very little risk of the offender reoffending in any serious way.

Sentence to be Passed

1. [77]

   In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (at [53]) (“Munda”), the Justices of the High Court discussed the manner in which the purposes or objectives of sentencing adverted to above apply in cases of domestic homicide. That was a case of manslaughter, but the same principles apply to murder. Their Honours pointed out that mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. Their Honours referred to “the long‑standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence”: Munda at [54].

2. [78]

   Their Honours emphasised (at [55]):

3. [79]

   There is no real evidence of intoxication in this case, as I have found, but the absence of that feature does not diminish the force of their Honours’ statement of principle.

4. [80]

   General deterrence remains a prominent feature to discourage others as far as the law can from committing similar crimes. In light of the favourable findings I have made in relation to remorse and future prospects of rehabilitation, specific deterrence is less of a consideration than it might otherwise have been. But those favourable factors do not eliminate it as a consideration.

5. [81]

   Mr Evers asked that I find special circumstances for the purpose of varying the statutory ratio between the non-parole period and the additional term. This would permit me to impose a shorter non-parole period. However, it is not very common to make a finding of special circumstances when sentencing offenders for the crime of murder. This is because the statutory ratio itself generally provides for a fairly lengthy time in the community, extending beyond the period during which supervision is generally available, namely a period of three years.

6. [82]

   Moreover, in the present case, as a foreign national non-citizen, the offender is very likely to be deported from Australia and returned to his native Fiji when released either on parole or at the completion of his sentence. There is unlikely to be any scope for supervision in the community at that time. It is impermissible to find special circumstances because of the risk of deportation or to use that matter to determine the appropriate length of the non-parole period: Maxwell v R [2020] NSWCCA 94 (at [123]-[125]).

7. [83]

   Before passing sentence I am obliged to advise the offender that his offence is a serious offence for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW) which means that the Attorney General has the power to make an application to the Supreme Court for his continued detention or extended supervision in the community after the expiration of the sentence I will pass. I will leave it to the offender’s counsel and solicitor to explain the ramifications of this matter to him.

Orders

1. [84]

   Bearing in mind all of the facts, matters and circumstances to which I have referred, but for his early guilty plea I would have imposed a sentence of 28 years on the offender for the murder of Ms Kurualeba. I am required by law to allow a discount of 25% for the utilitarian value of the plea and accordingly the term of imprisonment I will impose is one of 21 years. As I have not found special circumstances, it follows that the non-parole period as a matter of law is one of 15 years and 9 months. This sentence will be backdated to commence on 8 July 2024 to take account of the time the offender has spent in custody since his arrest on that date.

2. [85]

   Jeremaia Tuwai, on your plea of guilty, I convict you of the murder of Nunia Wasakitoga Kurualeba on 8 July 2024. I sentence you to a term of imprisonment having a non-parole period of 15 years and 9 months commencing on 8 July 2024 and expiring on 7 April 2040 with an additional term of 5 years and 3 months commencing after the expiration of the non-parole period on 7 April 2040 and expiring on 7 July 2045. You will first be eligible for release on parole after the expiration of the non-parole period on 7 April 2040.