Director of Public Prosecutions v Seau

[2010] VSC 369

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 64 of 2010

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIOELI SEAU

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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 Seau
MEDIUM NEUTRAL CITATION:	[2010] VSC 369	(Revised 23 August 2010)

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CRIMINAL LAW – Sentence – Assault – Violence between young men outside a hotel – 13 months on remand – Sentenced to 18 months’ imprisonment – Non-parole period of 12 months.

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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 A Brand	Slades & Parsons

HIS HONOUR:

1. Sioeli Seau, on 16 August 2010 you pleaded guilty to a charge of assaulting Cain Aguiar.  Your assault upon Mr Aguiar marked the beginning of a series of events which resulted in Mr Aguiar’s death.  Earlier today I sentenced Fostar Akoteu for the manslaughter of Mr Aguiar.

1. The maximum penalty for assault is 5 years’ imprisonment.

1. The events that are relevant to your offending can be summarised as follows.[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. On the evening of 9 July 2009, you went to a hotel in Yarraville where a number of your friends were drinking beer and playing poker.  You drank at that hotel before moving on to the Blarney Stone Irish Pub, also in Yarraville.  At the Blarney Stone you continued drinking beer with your friends, including Mr Akoteu.

1. At some point late in the night, Mr Akoteu told you that he intended to assault someone.  On the account you gave in your record of interview, you didn’t know then who Mr Akoteu intended assaulting or why, but you told him that you would “have his back”, which meant you would protect him while he was carrying out the assault.

1. At closing time, most of the hotel’s patrons spilled outside.  As you were standing outside the hotel Mr Akoteu pointed out Mr Aguiar as the person he intended assaulting.  According to your record of interview, you told Mr Akoteu “don’t worry about it… I’ll fight with him.”  You then approached Mr Aguiar and swung a punch.

1. According to your account of the events, you didn’t connect with this punch and you and he then proceeded to wrestle.  Other witnesses say that you did hit him, and that Mr Aguiar took some measures to defend himself in response.  On any view, you assaulted Mr Aguiar.

1. The charge to which you have pleaded guilty is common assault.  You are not charged with the more serious offence of intentionally or recklessly causing injury.  I proceed on the basis that the assault to which you have pleaded guilty was not one which caused injury to Mr Aguiar.

1. Mr Akoteu joined the fray.  A security guard and another patron attempted to separate Mr Aguiar.  Mr Aguiar was moved away from the scene of the initial fighting.  That did achieve the purpose of separating him from you.

1. The events that followed, which resulted in Mr Aguiar’s death, are, for present purposes, only relevant in this respect.  You instigated the assault upon Mr Aguiar, in the sense that you threw the first punch.  Otherwise you were not a party to the events which occurred after you were separated from the others and which led to Mr Aguiar’s death. 

1. At the time of this offence you were 19 years of age.  You are now 20 years old.  You are a young offender as defined by the Sentencing Act 1991.  As a youthful offender, usually rehabilitation will be far more important than deterrence.[2]

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

1. You were born in New Zealand to Tongan parents and came to Australia with your family in 1996.  You have a younger and an older sister.  According to the account of your background which you gave to a psychologist, Mr Ball, your upbringing was a violent and chaotic one characterised by alcohol abuse and domestic violence.

1. You had trouble at school and left home when you were 16.  You have abused drugs and alcohol.  You have fathered two young children.  You have been dealt with in relation to some serious violent offences in the Children’s Court. 

1. Mr Ball’s report, which was tendered on your plea, was generally positive in relation to your insight and current state of mind, and reveals grounds for optimism in relation to your rehabilitation. 

1. You have been in custody on remand in adult facilities for 13 months.  You did not apply for bail.  On your plea I was told that that was because initially you were charged with murder, and you were then presented on a charge of manslaughter after the committal.

1. On your plea the prosecutor submitted that the time you have already spent in custody is within the range of an appropriate minimum term.  Your counsel submitted a period on parole would be beneficial.

1. The offence is a serious one, in this particular case.  You have previously been dealt with by the Courts for violent offences.  Notwithstanding your youth, deterrence, both specific and general, and denunciation are important, given the nature of the particular offending.

1. You are sentenced to 18 months’ imprisonment. I fix an non-parole period of 12 months. I declare that pre-sentence detention of 401 days is to be reckoned as already served. If you had not pleaded guilty I would have sentenced you to 2 years imprisonment with a non-parole period of 12 months.

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