Director of Public Prosecutions v Kotiau
[2020] VSC 421
•9 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0232
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SHAYE KOTIAU | Accused |
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2020 |
DATE OF SENTENCE: | 9 July 2020 |
CASE MAY BE CITED AS: | DPP v Kotiau |
MEDIUM NEUTRAL CITATION: | [2020] VSC 421 |
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CRIMINAL LAW – Sentence – Murder – Incomplete circumstances of offending – Abuse of body of the deceased – Plea of guilty – Fair prospects of rehabilitation – Youth – Standard Sentencing Scheme – Sentence of 27 years’ imprisonment with a non-parole period of 22 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Williams | Gallant Lawyers |
HIS HONOUR:
On 15 May before Justice Hollingworth, you pleaded guilty to the murder of Tamara Farrell (‘Tamara’), at Canadian, near Ballarat, on 17 February 2019.
In setting out the details of your offending, I have relied heavily on the summary of prosecution opening which was Exhibit 1 on the plea.
On Saturday 16 February 2019, you were at home at your address at 12 Phair Court, Altona. Your sister Kieahn came home at about 5.00 pm. You had known Tamara for most of your life. Your mothers were particularly close, and the families had grown up together. At the time of these events, you were 22, your sister Kieahn was 19 and Tamara was 32.
Tamara had invited both of you to her home for a games night. Kieahn, with you, drove to Tamara’s address at 5 Horwood Court, Canadian. You arrived at about 11 pm.
When you arrived, Tamara and her housemate, Russell Goodes (‘Russell’), were there. You all started to play drinking games in the lounge room which continued for approximately six hours. Everyone went to bed at about 6 am on Sunday 17 February 2019.
Russell slept in his room at the back end of the house, you and Kieahn had been given the bedroom at the front of the house.
Prior to Tamara going to bed, she bought you a bucket and three bottles of water as you were feeling sick. She then went to her bedroom which was next door to that front bedroom.
Once in the bedroom, you seemed unwell and were moving about going from sitting at the end of the bed to standing up and moving around the bedroom. Kieahn fell asleep about ten minutes later, after Tamara had left the room. She last saw you in the bedroom with her. Whilst everyone was sleeping, you went into Tamara’s room and murdered her.
The circumstances and the manner in which you murdered Tamara remain unknown. The only thing you have said about the killing was when you said to your girlfriend, Shonelle McGregor (‘Shonelle’), that it was ‘brutal’.
On Sunday morning, Russell left the house at about 9.45 am to collect his son, David, and his mother Yasmine in central Ballarat. They returned to 5 Horwood Drive, Canadian, at about 10.05 am.
At about 12.30 pm, Kieahn woke up and went into the living room. She looked round the house for you but did not find you. She did not look in Tamara’s room as the door was closed.
At 1.55 pm, Russell, his son and Yasmine left the address to take Yasmine to the train station. Immediately after they left, you came out of Tamara’s bedroom to the kitchen. You walked to and from the bedroom three times. You grabbed Kieahn by her clothing and took her into the hallway. You then said to her, ‘I’m going to show you something that’s going to change our lives forever’.
You took your sister into Tamara’s bedroom, to the walk-in wardrobe towards the en-suite bathroom. The door to the en-suite was closed. You said, ‘There’s a body’.
You opened the door, Kieahn saw Tamara’s naked body lying on the floor. She noticed that the right side of her face was dark, like it was bruised. Kieahn said to you that the two of you needed to call someone, but you told her no and said that the two of you had to get rid of the body. She told you she did not want to, but you grabbed the back of her dress and pulled her close and said, ‘We are getting rid of it’.
You told Kieahn to reverse her car into the garage, which she did. She watched you open the boot of the car and line the boot with a blue tarp which you had found in the garage.
Russell arrived back at the address with his son at about 2.15 or 2.20 pm. You told Kieahn to keep them away from you. She saw you go in Tamara’s bedroom and close the door. She went into the lounge room and distracted Russell and his son by talking to them.
After a while Kieahn opened the hallway door and found you behind it. You told her to go back and tell Russell that she had received a message on her iPad from you and that she had to go to McDonalds to pick you up. You instructed her to take her car out of the garage, then come back inside the house and pretend she had forgotten something. She did as instructed.
Russell moved his car from the drive enabling Kieahn to take her car out of the garage. At that point, she assumed you had placed Tamara’s body in the boot of her car. She parked her car in the front of the address and went back inside. Russell had made some food which she ate. Kieahn went back to Tamara’s bedroom where you were. You left the room and went out into the car and put a green blanket into the car. Kieahn said goodbye to Russell and went to the car. She drove away from the address with you and Tamara’s body in the boot. As she was driving in the direction of the Ballarat Police Station, you said to her, ‘Don’t you dare’. You grabbed her leg and told her that the two of you should make an appearance at home.
She drove to Altona, stopping at the 7-Eleven store in Maidstone Street, Altona. You arrived there about 4.32 pm. You told her to stay in the car. You got a red-coloured five litre plastic petrol container from behind the driver’s seat. You filled the car up with petrol and put some petrol into the container. You then placed the petrol container in the floor well of the front passenger seat.
After some delay in paying for the petrol both of you went home to 12 Phair Court, Altona. When you arrived your sister, Tahlia, and her partner, Ayden Ham, were home. You started to gather things and packed a 7-Eleven bag with clothing. You went into the garage and collected a hammer and chisel. You gave the hammer and chisel and the bag of clothing to Kieahn and told her to take them to the car.
At about 7 pm you left the house and drove around the city for some time, eventually reaching the M1 Freeway near Burke Road, Camberwell, and continued then along the freeway, away from the city. At some point you got off the freeway. You did not regard the place where you stopped as suitable and told your sister you wanted to find a perfect place, a place that was dark. You continued driving and reached a spot in the vicinity of 671 Sale-Toongabbie Road, Nambrok.
You got out of the car and grabbed the chisel. You removed Tamara’s body from the boot. You carried her over a fence and placed her on the ground in a small clearing between the trees. You went back to the car and got the hammer from Kieahn. You told her to drive up the road and check to see what was around and to be back in two minutes. When she returned, she could see you holding a chisel at Tamara’s face and saw you swing the hammer onto the chisel. She heard a crunch and looked away. She could hear the noise of you continually striking the chisel with the hammer. You removed Tamara’s upper teeth and entire mandible. You did this in order to conceal her identity in the event her skeletal remains were later found.
You then removed the blue tarp from under Tamara’s body, which you took back to the car. You took the petrol container from the car, poured petrol over Tamara’s body and set her alight. You did this in order to destroy DNA and other evidence of your involvement in her death. Kieahn had remained in the car. The two of you stayed watching Tamara’s body burn for about 20 minutes, until the flames subsided. Her body was still on fire when you left the area. It was now the early hours of Monday 18 February 2019.
You drove back to the Princes Highway to get to Melbourne. When you were nearly home you drove to the end of Grieves Parade, Altona. You took a bathmat, green towel, pillowcase and blanket, which had come from Tamara’s home, and hid the items under a railway bridge.
At 6.46 am you and Kieahn arrived at home. Kieahn showered and went to work for the day.
Back in Ballarat, at about 8.45 am, Russell took his son to school. When he returned home Matt Jones, Tamara’s employer, was waiting at the address. He told Russell that Tamara had not attended for work. Russell was concerned that something was wrong and made enquiries with the two hospitals in Ballarat and subsequently police. You had remained at home.
At about 10 am Tamara’s mother, Nellie Farrell (‘Nellie’), called the landline number of your house. Your uncle, Ngatokorua Tekki (‘Tooks’), answered the phone. Nellie wanted to know where Tamara was and asked to speak to you. Tooks asked you to speak to Nellie but you did not want to. Tooks asked if you had seen Tamara and you said ‘No’.
At about 3:30 pm your girlfriend, Shonelle, arrived back at the address. She went into the bedroom and spoke to you. You said, ‘I’ve done something that I can’t reverse, unforgiveable’. You told her that it was something terrible that you could not take back. The two of you went out to the garage, where you both smoked some cannabis. You told her that people were trying to call you and speak to you about Tamara being missing. She asked you what had happened, and you said, ‘She’s dead’. She asked you what you had done. You told her you thought it was a dream, you were drinking a lot that night. You woke up and felt like you were dreaming. In the end you told her ‘It was brutal’.
A short time later Tooks and you went to the garage. Tooks asked you if you had done something bad to Tamara. You were mumbling and said, ‘You guys will find out, you already know’. You told Tooks that you wanted to tell Tamara’s mother and family what had happened. You told him that you were ‘fucked’ and that everyone would know what you had done.
Later your sister, Tahlia, arrived at the house. She and your mother, Michelle, both went to the garage. Your mother asked you if Tamara was dead. You nodded and said ‘Yes’. She asked if you had killed her. You said, ‘you can work it out’. You went on to say you thought it was a dream but realised it was not. Your mother asked you if you knew where Tamara’s body and you said, ‘Of course I know where she is’.
Tahlia left the address and walked to the shops nearby, where she met up with her boyfriend, Ayden, and at 6.31 pm she called 000. About half an hour later police arrived at 12 Phair Court, Altona. Sergeant Bosnar and Leading Senior Constable Pisani started to negotiate with you and shortly after you were arrested.
While the police were negotiating with you your sister, Kieahn, arrived home from work. She told Constable Marrcucci about the events over the weekend, including seeing Tamara’s dead body in the bathroom. She too was arrested.
She made full admissions in her record of interview with police, together with a written statement, revealing much of the movements and conduct of both of you.
When the investigation commenced, the police examined 5 Horwood Drive, Canadian, and 12 Phair Court, Altona, including an examination of the Kieahn's motor vehicle where various items relevant to the investigation were recovered, including two empty fuel containers. Located under a rail bridge south of Koroit Creek Road, Altona, was a black pillowcase, green tea towel, white bathmat and a green check blanket.
At 671 Sale–Toongabbie Road, Nambrok, the police located the burnt body of Tamara. Her body was severely burnt, lying on her back. The body appeared to have little, if any, clothing. What appeared to be burnt fabric was visible on Tamara’s head and right shoulder.
Following a discovery by a member of the public, police recovered a small snap lock bag beneath a rail bridge in Altona. The bag contained teeth, mandible bone, hair and a pendant all belonging to Tamara.
A post-mortem was conducted on 21 February 2019 by forensic pathologist,
Dr Greg Young. The autopsy revealed evidence of blunt force trauma to the head. The injuries observed were indicative either of an extremely forceful punch or punches to the head, or more likely, the result of a blow with an object.
The burning of Tamara’s body exhibited a strong emphasis on the genital area, hence it would be impossible to ascertain if any sexual assault had occurred. Due to the destruction of the body, the precise mechanism of death is unclear, but the cause of death was determined to be a head injury.
On the plea I received victim impact statements from Nellie Farrell, Tamara’s mother, Tori McDonald, her sister, Russell Goodes, her friend and housemate, and Sven Bartells, another friend.
Tori McDonald and Russell Goodes read their victim impact statements to the court. Nellie Farrell had wanted to read her statement but was not able to do so and the prosecutor read it out on her behalf.
This is yet another example of the wide-reaching consequences of offending of this kind, and the consequences of the death which is entirely senseless and pointless.
The victim impact statements were moving, but thoughtful, considered and measured. The suffering of the Farrell family and their friends were greatly increased by the close relationship of the Kotiau family and the Farrell family. I have taken the statements into account.
You have prior court appearances in the Children’s Court, the last of which was in May in 2014. Some of your earlier offending had involved violence, but none of the offending appears to have been particularly serious and you successfully completed the programs on which you were released.
It was submitted by the prosecution that the significance of the prior convictions was that even at the early age at which they had occurred, they did involve violence.
Those prior appearances do mean that you have had previous experience in the criminal justice system, and insofar as they were related to violent behaviour, they have relevance.
You were 22 at the time of the offending, you are now 23. On the hearing of your plea, I received a report from speech pathologist, Enaksha Garde, dated 31 March 2020, and from psychologist Jeffrey Cummins, dated 29 June 2020 and as the plea progressed, a further report from Martin Jackson, clinical neuropsychologist, dated 3 April 2020, was tendered. I will return to those reports.
In addition to those professionals, you have been examined by other psychiatrists and psychologists, those advising you wanted to establish that you were fit to plead and you did not have available to you defences, in particular, anything in relation to the consumption of alcohol. You have said of the events of the night that you were very drunk and that you have no recollection of the killing.
There was an issue on the plea as to whether or not that lack of recollection is genuine. There was some features of the case pointed to by the prosecutor, including your use of the expression, ‘brutal’ and the fact that you told others that you wanted to tell Tamara’s family what had happened. The fact that you are able to say that you woke up next to Tamara’s dead body and the post offence conduct in which you engaged, were all matters in which it could be said that you did appear to have some recollection. It was submitted on your behalf that I should not reach that conclusion.
For my own part, I considered that the use of the expression such as, ‘in a dream’ or ‘like a dream’ were inconsistent with a lack of recollection, but it appeared on the material, particularly a reference made by Mr Jackson in his report that Dr Adam Deacon, a forensic psychiatrist who had examined you, thought that your use of the word, ‘dream’ was more likely to be a description of an alcohol black-out.[1]
[1]Report of Mr Martin Jackson, Consultant Clinical Neuropsychologist, dated 3 April 2020, 1.
In her report, Enaksha Garde has concluded that you have below average to low average language difficulties.[2] Having regard to all the matters put, I am not satisfied that you are deliberately feigning your lack of recollection to a degree that it would be a factor against you. That is not to say I am positively satisfied that you had no recollection. I am left therefore with the surrounding circumstances from which I can draw conclusions about the case.
[2]Report of Ms Enaksha Garde, Speech Pathologist, dated 31 March 2020, 7.
I am satisfied on the evidence of the pathologist, that this was a severe and brutal attack.
Although it has been suggested that the attempted destruction of Tamara’s body was for the purpose of concealing her identity, I am also satisfied that it was designed to conceal the nature of your offending. I am nonetheless unable to make specific findings about what your conduct entailed.
It was submitted on your behalf that I should regard this offending in the
mid-range. The prosecution however, submitted that it was a high-level offending and as I observed on the plea, I place this offending high in the range.
The matters in aggravation are important being:
(a) This was the murder of a young woman in her own home where she was entitled to feel safe, connected to that is the very close family relationship that existed, to which I have already referred.
(b) On the whole of the evidence, there is nothing about the conduct of Tamara which could have led to this offending.
(c) It appears that Tamara was naked and vulnerable at the time you committed the attack.
(d) The particularly extreme conduct after your offending which are set out in my detailed analysis of the facts above, which I do not need again to repeat.
(e) The involvement of your younger sister in the events are something for which she will have to take responsibility for the rest of her life, because of your conduct.[3]
[3]DPP v Kotiau [2020] VSC 245.
The sentence I will impose upon you will reflect that I regard this as a serious example of this serious offence.
You are 23 years of age and you have two younger sisters. Your father grew up in the Cook Islands and your mother is from Altona where you grew up and spent most of your life.
Your childhood was somewhat traumatic. Your parents’ relationship was difficult, mostly as a result of your father’s alcoholism and mental health. You witnessed violence within the home on many occasions, directed mostly towards your mother, but also towards you and your sisters, and on one occasion, your father attempted to abduct the family whilst armed with an axe, which led to your father being imprisoned.
Your parents separated when you were 15 or 16, but your father continued to live nearby and came to the house frequently and continued to behave in the manner he had in the past.
You attended school up until Year 10 which you did not pass and had a difficult time at school, including being the subject of bullying. You were reasonably good at sports and although you had been shy at school, in your early teens you were described as sociable, confident and had lots of friends. At about the age of 16, you were the subject of an attack and it appears that you have been reclusive since that time.
Whilst at primary school, you had received some assistance from the psychologist which had been initiated by the school. Shortly before this offending, your general practitioner had referred you to a psychologist, Dr Peter Abraham who saw you on two occasions. That referral arose out of your mother’s concern about the experiences that you had suffered as a child.
On the plea, I received references from your mother and Shonelle, who was your partner at the time of the offending. They both speak well of you and would regard this matter as being out of character.
Since leaving school you have engaged in various unskilled employment, none for any particular length of time.
I was urged on the plea to have special regard to your disadvantaged background, but, Mr Williams who appeared on your behalf, accepted that your deprivations were not severe enough to reduce your moral culpability. I accept that that concession was correct. I have taken, though, into account the deprivations and difficulties of your childhood in framing the appropriate sentence.
You have been a regular user of cannabis since the age of 15 and have been a daily user from about 17. Although you claim to have ceased cannabis use in the period leading up to the offence, you did use cannabis at least in the days immediately, or on the day immediately after the offence.
Your recent life has been particularly marred by the use of alcohol and you have frequently been drunk and suffered blackouts. Although you claim to have abstained in the few months leading up to this offence, you did consume a large amount of alcohol on this night, and your sister described you as being very drunk. She also observed that your moods can change with drinking and that you are difficult to deal with, and do not have good perception of how people are reacting to you.[4]
[4]Record of Interview of Kieahn Kotiau, dated 19 February 2019 (Question 55).
Put at its’ highest, your use of alcohol might be some part-explanation for your conduct, but it is certainly no excuse for it.
As well as the close family relationship, the complete lack of explanation for this offending is a matter of great distress to Tamara’s family.
Mr Bourke, the Crown Prosecutor who had appeared on behalf of the Director, had submitted that there was material from which it could be concluded that you were well aware of what happened when you consumed alcohol, that is, it would make you angry and that you reacted violently. Those matters come specifically from what was said by Mr Jackson and that he recorded in his report.
Because of your youth, I am not satisfied that you had reached a point where it could be said that your use of alcohol was a matter in aggravation of your offending in this case, but of course, to make it abundantly clear, it is not and cannot be a matter in mitigation.
In your time in custody you have had a number of examinations relating to your mental health, which have been inconclusive, but although no formal diagnosis has been made you have been prescribed with antipsychotic and antidepressant medications and you have been placed on watch on two separate occasions in relation to concerns that you had expressed suicidal or self-harm ideations.
Whilst in custody you have undertaken a number of courses and have been attending a counsellor. It is clear that you have the continued support of your mother and father.
In relation to the reports of Mr Jeffrey Cummins and Ms Enaksha Garde, they do not add much information about your offending. Mr Cummins concluded that you were suffering from depression of moderate severity which he regarded as being significant and reactive to your offending behaviour. He would not exclude that you had been suffering symptoms of depression (likely alcohol induced) over many months prior to your offending.[5] It also appears from his report that you have been attempting to do something about your drinking whilst you have been in prison — particularly by being involved with Alcoholics Anonymous — but that involvement is limited because of the COVID-19 restrictions now in place.
[5]Report of Mr Jeffrey Cummins, Consulting Clinical & Forensic Psychology, dated 29 June 2020, 9.
On the plea much emphasis was placed on your youth and the fact that you pleaded guilty. I have given significant regard to both of those matters, and in particular your youth. The law has regarded youthfulness as being a significant feature of the way in which we deal with people charged with offences. The relevance of youth may be diminished in accordance with the severity of the offending that is being dealt with, but for sound reasons it is never entirely extinguished, and it is, as I have already said, significant in your case.
I am satisfied that you are remorseful, but in your case, it is almost impossible to determine the level and basis of your remorse. I am obliged to consider your prospects of rehabilitation. It is trite to say unless you do something about your use of alcohol, your future prospects are bleak. You are young and have already started to do something about your use of alcohol. In the circumstances I regard your prospects of rehabilitation as being at least fair.
I have also taken into account the present difficulties of prisoners as a result of the COVID-19 pandemic, and it now seems that those restrictions — including there being no personal visits —will continue for some time yet.
I am obliged to have regard to just punishment, denunciation and general and specific deterrence, and I have done so.
The maximum penalty for murder is life imprisonment. Murder is a standard sentencing offence and the standard sentence fixed for murder is 25 years. I am obliged to have regard to the fact that this is a standard sentencing offence, one of the matters which, in my instinctive synthesis, I take into account in determining the sentence I should impose. The standard sentence is not a starting point and judges do not engage in two-tier sentencing.
I have had regard to a number of the cases where murder was a standard sentencing offence. Those cases are helpful in the distillation of the appropriate sentencing principles, but each of the sentences imposed in those cases largely turn on their own facts.
In fixing a sentence I am obliged to fix a non-parole period which is at least 70 per cent of the head sentence. I have fixed your non-parole period by determining a period which I regard as being in the best interests of both you and the community. In relation to your rehabilitation I am fixing a period for which all things, proceeding in order, will give you an opportunity to be on parole.
Shaye Kotiau, you will be sentenced to be imprisoned for 27 years with a non-parole period of 22 years.
I declare that you have served 507 days by way of pre-sentence detention and I direct that this declaration be entered in the records of the court.
I declare pursuant to s.6AAA of the Sentencing Act1991 that had it not been for your plea of guilty I would have imposed a sentence of 32 years’ imprisonment with a non-parole period of 27 years.
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