Director of Public Prosecutions v Akoteu

[2010] VSC 364

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 62 of 2010

DIRECTOR OF PUBLIC PROSECUTIONS

v

FOSTAR AKOTEU

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2010
DATE OF JUDGMENT:	20 August 2010
CASE MAY BE CITED AS:	DPP v Akoteu
MEDIUM NEUTRAL CITATION:	[2010] VSC 364

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CRIMINAL LAW – Sentence – Manslaughter – Plea of guilty – Alcohol and drug related violence involving young men outside a hotel – Sentence of 10 years’ imprisonment – Non-parole period of 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C Ryan SC	Office of Public Prosecutions
For the accused	Mr P Higham	Andrew George Solicitors

HIS HONOUR:

1. Fostar Akoteu, in the early hours of Tuesday 14 July 2009 Cain Aguiar, a 25 year old Canadian, died in the intensive care unit of the Royal Melbourne Hospital.  He died as a result of head injuries he sustained outside a hotel in Yarraville the previous Thursday night.  On 16 August 2010 you pleaded guilty to a charge of killing him, the offence of manslaughter.  The maximum sentence for manslaughter is 20 years’ imprisonment.

1. Mr Aguiar was a Canadian citizen and had been brought up and educated in Canada.  But he had strong connections to Australia.  His mother is Australian.  He had close family here.  He himself held Australian citizenship and he was considering settling here permanently.

1. At the time of the offence you were 22 years of age.  You were born in Australia.  You and the friends who were with you that night are of Tongan descent.

1. It is important to set out the relevant events in some detail.[1]

   [1]In relation to matters adverse to the offender, I must be satisfied of those matters beyond reasonable doubt, but I may take into account matters in his favour which are established on the balance of probabilities: R v Storey [1998] 1 VR 395 at 369; R v Olbrich (1999) 199 CLR 270; R v Cheung (2001) 209 CLR 1; and R v Ramage [2004] VSC 508 at [25].

1. Approximately six months before the fatal night you met a woman named Katherine Nguyen.  She gave you her phone number.  Over the ensuing months the two of you spoke on four or five occasions.  You were not romantically involved.  On the morning of Thursday 9 July 2009 you rang her and asked her what she was doing that night.  She told you that she was going to the Blarney.  This was a reference to the Blarney Stone Irish Pub in Yarraville, which I will call the Blarney Stone. 

1. That evening Ms Nguyen met a close female friend of hers.  The two of them went to a restaurant named Carsons Lounge, which is also in Yarraville near the Blarney Stone.  While at Carsons Lounge they had a very brief encounter with Mr Aguiar who approached them for directions.  When Ms Nguyen and her friend arrived at the Blarney Stone they saw that Mr Aguiar was there and they again struck up conversation with him.  Ms Nguyen talked to him throughout the evening and introduced him to other friends of hers who were there that night. 

1. You and a number of your friends began the night drinking beer and playing poker at another hotel in Yarraville.  On the account of events you gave in your record of interview, by the time you left that hotel and went with your friends to the Blarney Stone you were already “pretty drunk”.  At the Blarney Stone you continued drinking.  Amongst the friends who accompanied you there were Sioeli Seau and a co-accused who is yet to be tried.

1. According to Ms Nguyen, while she was talking with Mr Aguiar and other friends you began staring at her, walking near her, and standing around in a manner which she considered to be attention seeking.  She said you were behaving in a way she interpreted as jealousy because she was talking to Mr Aguiar.  Eventually, on her account, you began verbally abusing her.  Your own account of events in your record of interview is consistent with her account.  You describe exchanges with her which in my view confirm her assessment of the situation which is that you were jealous of the fact that she was spending time with Mr Aguiar.  In your record of interview you attribute your behaviour outside the hotel that night, to which I will turn in a moment, to your feelings towards Ms Nguyen and the way she had treated you.  Most importantly, you state in your record of interview that Mr Aguiar did nothing to provoke what was to occur outside the hotel after closing time. 

1. As your account of events in your record of interview makes clear, you told Ms Nguyen and your friend Mr Seau that you intended to assault Mr Aguiar. 

1. Upon being told of this intention Mr Seau indicated to you that he would support you.  When everyone left the hotel at closing time it was Mr Seau who commenced the fighting by hitting or attempting to hit Mr Aguiar.  Mr Aguiar did nothing to provoke this attack. 

1. A large number of people witnessed what then occurred.  As is invariably the case in this kind of situation, their accounts are not completely consistent.  On the material before me, for the purpose of sentence, I find that the following occurred:

(1)Upon seeing Mr Seau attack Mr Aguiar you immediately joined the fray and in this initial stage of the fighting you either hit Mr Aguiar with, or threw at him, an object, either a bottle or a glass, striking him on the head. 

(2)A security guard and another patron intervened in an attempt to separate Mr Aguiar from three men then trying to attack him. Those three men were Mr Seau, you, and another member of your group.  Mr Aguiar was moved away from the scene of the initial fighting and that did achieve the purpose of separating him from Mr Seau.

(3)There is material in the depositions indicating that at one point Mr Aguiar took off his jacket and took actions to defend himself. But he did not at any stage represent any threat to you or your friends.

(4) The intervention of the security guard meant that Mr Aguiar was moved away from the area where the fighting initially began.  As he was being led away and with his attention directed toward you as the principal aggressor, a member of your group hit Mr Aguiar with a punch to the left hand side of his face. The punch was of considerable force and caused Mr Aguiar to fall.  In the course of his fall his head struck the pavement with sufficient force to cause a sound which was heard by a number of the bystanders.

(5)Whilst he was lying unconscious, or at least helpless, with his head in the gutter you either stomped on his head or kicked him in the head. 

(6)As you stomped or kicked the head of this defenceless person, who had done nothing to provoke you and who represented no threat to you, you taunted him.  There are differences amongst the witnesses in relation to what you said.  In your record of interview when asked what you said, you say you said “Welcome to Australia”, and you then agree with the suggestion that what you said was “Welcome to Australia bitch”. 

1. Mr Aguiar sustained serious head injuries as a result of this attack.  He had a fractured left cheekbone, and a fracture which extended from the right temporal bone around the right base of the skull.  He also had two lacerations on his head and some other bruising. 

1. Mr Aguiar was admitted to hospital shortly after midnight on 10 July 2009.  A CT scan showed a bilateral temporal subdural and subarachnoid haemorrhage as well as the fractures referred to.  At that stage conservative neurological management was determined to be appropriate.  At about 2.00 am on 12 July Mr Aguiar suffered an acute deterioration of his condition.  According to the neurosurgery registrar at the hospital, he developed a seizure.  An urgent CT scan showed a new left temporal intracerebral haemorrhage.  An emergency operation was performed.  The intracranial pressure became uncontrollable.  By 14 July it was determined that the situation was hopeless.  Mr Aguiar’s parents, who had by that stage arrived in Australia from Canada, made the decision to withdraw active treatment and Mr Aguiar died at 8.50 pm that night.  His death was caused by the head injuries he suffered. 

1. I have reviewed the medical statements of Dr Adamidis and Professor Stephen Cordner and read their cross-examination at the committal.  A co-accused remains to be tried.  In the circumstances it is neither necessary nor desirable for me to canvass the medical issues, save to say that by your plea of guilty you have admitted that your conduct and/or conduct for which you are legally responsible was a substantial and operating cause of Mr Aguiar’s death. 

1. Whilst the circumstances of this attack can properly be described as shocking, it is important to emphasise that the crime to which you have pleaded guilty is manslaughter.  It is not murder.  By your plea you have admitted that conduct by you, or for which you are legally responsible, was unlawful and dangerous and was a substantial and operating cause of death.  But the prosecution does not allege that you intended to kill Mr Aguiar or that you intended to cause him really serious injury.  I am bound to proceed on the basis that that was not your intention, and I do so. 

1. Victim impact statements made by Mr Aguiar’s mother, Issy, his aunts Simone, Margaret and Mary, and his uncles Clyde and David were tendered. His aunts and uncles describe Mr Aguiar as a young man of great potential who was deeply loved. They also write of the terrible impact his death has had upon them and their families.

1. Mrs Aguiar was called as a witness and read her statement to the Court.  She spoke on behalf of her husband, Tony, and daughter, Tonya.  She told of a close-knit family utterly devastated by their son’s death.  She said that Mr Aguiar’s premature death had deprived not only an accomplished young man of a full and rich life but had deprived her and her family of the joy of sharing it with him.   She concluded:

“Thirteen months have gone by and the shock and disbelief are as raw today as it was the day our son died. We have been irrevocably changed with our sense of the world now warped. Although we intellectually know the truth, our hearts often refuse to accept that Cain is never coming back.  We loved him and always will, and not a day goes by that we don’t think of our son and remember all that he was to us.”

1. On the plea your counsel told me of your background and he tendered a report by the psychologist Ms Carla Lechner, a letter from Ms A’Lin Leong, and a bundle of completion advices in relation to courses you have undertaken on remand.  I have had regard to all of that material.

1. You come from a good family.  Your upbringing may have been strict, but you had a happy childhood with parents and sisters who loved and supported you, and who still do.

1. You are now 23 years old.  You were 22 at the time of the offence.  You are not a “young offender” as defined by the Sentencing Act, but you are still youthful and that is a very important consideration.[2]

   [2]The principles set out in R v Mills [1998] 4 VR 235 do apply.

1. You come before the Court without relevant prior convictions, and that is also important.  It was not suggested that you have led a blameless life apart from this incident, and there are references to other incidents in your record of interview and in Ms Lechner’s report. 

1. You pleaded guilty, and you had indicated your willingness to plead guilty at an early stage.  That is important too.

1. You have expressed regret and remorse for what happened which I accept is genuine.

1. You completed Year 11 at school and your employment history is good.  You have been employed for the entire period since you left school until very shortly prior to the offence.

1. You have two young children.  Their mother is Ms Leong.  She cares for you and wants to form a family with you when you are released.  She and the children visit you regularly.

1. Ms Lechner assesses you as functioning at a fairly low intellectual level.  Subject to what I say below, she does not suggest any significant psychological problem.

1. There are a number of positive aspects of your life.  There are important factors which are to be taken into account in your favour, and I do take them into account. 

1. The material before me speaks with one voice as to what has damaged, if not destroyed, the positive things about your life; has led you to take the life of another young man, with people who loved and cared for him as your family love and care for you; and has now placed you in the dock facing sentence for this very serious offence.  The reason all this has happened is drug and alcohol abuse.

1. Ms Lechner sets out the history of your drug and alcohol abuse.  Ms Leong reveals the effect on those close to you.  The events of 9 July 2009 are the tragic culmination of that abuse.  You have abused many drugs, but the significant ones are marijuana, methylamphetamine and alcohol.  Ms Lechner suggests you now have some insight into the effect drug and alcohol abuse has on you, whereas previously you did not.  That is a significant matter.  You have good prospects for rehabilitation, but only if you cease your drug and alcohol abuse.

1. Both specific and general deterrence, and denunciation, are important here.  Violence by young men, fuelled by drugs and alcohol, is a serious social problem, and the community rightly expects a stern response to it. Usually with a youthful offender rehabilitation is far more important than deterrence. That is the case here, but that principle must be tempered because a characteristic of this very serious kind of offending is that it is perpetrated by young men.

1. On behalf of the prosecution it was submitted that this was a grave example of this kind of offence.  I agree.  I have had regard to recent cases concerning similar circumstances and to current sentencing practice.[3]

   [3]The submissions focused upon DPP v Sako & Ors [2010] VSC 223 and R v Tello [2010] VSC 224. Reference was also made to R v AB (No 2) [2008] VSCA 39. There are features of the Sako and Tello situation which bear some similarity to what occurred here, but my assessment is that the circumstances of the offending here are more serious, and also that the mitigating factors here are somewhat less compelling.  The element of pre-meditation present here was not present there.  The jealousy aspect, and the callous taunting, which are present here, were not present there.  The remorse and insight displayed, particularly by Sako, seems more compelling than that existing here.  Finally, positive material suggesting good character was led there.

1. For the offence of manslaughter I sentence you to 10 years’ imprisonment and I fix a non-parole period of 7 years.  I indicate that if you had not pleaded guilty I would have sentenced you to 13 years’ imprisonment with a non-parole period of 11 years.  The period of pre-sentence detention is 401 days.