Director of Public Prosecutions v Tautua'a

[2014] VCC 346

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN TAUTUA'A

---

JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2014
DATE OF SENTENCE:	25 March 2014
CASE MAY BE CITED AS:	DPP v Tautua'a
MEDIUM NEUTRAL CITATION:	[2014] VCC 346

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams	OPP
For the a	Mr A. Kennedy	Doogue, O’Brien & George

HER HONOUR:

1John Tautua'a, you have pleaded guilty to one charge of affray.

2The charge arose following an escalating dispute between a group of people to whom you were related through your mother's step brother and a group of people to whom you were related through your mother's brother. 

3Bad blood had arisen between some of the women in each of those groups which led to an escalating verbal dispute.  By 2 October 2012 it led to a physical confrontation between one of the women from one group and one of the women from the other.  That then led on the evening of 2 October to a large group of people going to a home at 31 Waves Drive in Point Cook.  You were one of the large group of people who went to that address in Waves Drive.

4Once the group who went to Waves Drive arrived, three of the women from the arrival group began to attack a woman from the other group.  The three women who were in what I have called the ‘arrival group’, that is, the group who went to the house, were Anne Puleanga, Suliana Atelemo and Messine Toga. 

5The three of them began to attack Lesieli To'o who was connected with the group who lived at Waves Drive.  As a result of that, that is, the attack on Lesieli To'o, her sister-in-law Anabella Uluakiahoia went to Ms To'o's aid, followed shortly after by Annabella's husband, Soape Uluakiahola, his brother Sosiua and his sister Mafileo.  That led to the men connected with Anne Puleanga, Suliana Atelemo and Messine Toga to also join in.  Those men were Sim Atelemo Tuiafita, Junior Taupati, Leon Tufuga, Lance Tufuga and you.

6Ultimately the group separated into two fighting groups.  One, the group of women, the other, the group of men.  The group of men involved Sim, Junior, Leon, Lance and you and maybe some others dragging Soape Uluakiahola from where the group of women were fighting out into the centre of the road and setting upon him there.  It is those circumstances, and your involvement in that, that gives rise to the charge of affray.

7You, along with the seven others who I have identified as the fighters, namely Anne Puleanga, Suliana Atelemo, Messine Toga, Sim Atelemo-Tuiafitu, Junior Taupati, Leon Tufuga and Lance Tufuga, were charged with affray and some of the others were also charged with separate offences of causing serious injury or causing injury.

8On the listed day of the trial, you failed to attend in accordance with your bail undertaking. The other seven all answered their bail and over the next few days five of them resolved the charges against them and entered guilty pleas to charges of affray or affray and cause injury. The trial then commenced against the two remaining co-accused, Sim Atelemo-Tuiafitu and Junior Taupati. They are charged with affray and intentionally or alternatively recklessly causing serious injury. That trial is continuing. It is the prosecution case that following the affray, the circumstances of which I have detailed, that the accused Sim caused serious injury to the victim Soape by stabbing him a number of times, and that the accused Junior is guilty of causing serious injury to Soape either by being a party to a joint criminal enterprise with Sim or alternatively by aiding and abetting Sim as the principal offender. It is the defence case for the accused Sim that you, not he, stabbed Soape.

9Before the trial, your bail had previously been varied to permit you to rejoin your family in New Zealand over the Christmas break but you did not return to Melbourne when you were required to do so in accordance with your bail conditions.  After some contact, after you had failed to appear on the day of the trial, with both New Zealand and Victorian police, you made arrangements to return voluntarily to Australia and you were arrested on your arrival at Melbourne airport on Saturday night.

10The following day, having received legal advice from your counsel who had been your counsel through the committal and up to the time before trial, you made a statement to the police detailing your involvement in the events of the night of 2 October 2012 and the involvement of your co-accused.  You have now sworn before me that what you have said in your statement is the truth and you have now undertaken to give evidence in accordance with that statement at the trial of the two co-accused.

11In your statement you implicate Sim as the stabber, and you explain your failure to return to Australia and answer your bail on the basis that you had been subjected to pressure by some of your co-accused to take responsibility for the stabbing, or alternatively to absent yourself from the trial in order to allow the blame to be sheeted home to you in your absence.

12It is the prosecution intention to call you as a witness in the trial against Sim and Junior. There was probably less than one day’s evidence remaining in that trial up to the time of your return or as at the date of your return.  The circumstances of your return and your decision to provide a statement and to give evidence provided a real urgency to dealing with your matter and then resuming the trial in respect of the other two.  The trial has been adjourned in order for your plea to be heard, and sentence to be passed upon you before the trial resumes and before I hear the pleas for the co-accused who have pleaded guilty to various charges that I identified.  I must sentence you before I sentence them.  I am not able to sentence you at the same time as those who have pleaded guilty or who might ultimately be found guilty.

13My sentencing reasons for dealing with you in this manner are therefore necessarily brief.  On the material before me I am satisfied that you fall to be sentenced on the basis that you were part of the group involved in dragging Soape away from the area where his sister-in-law Leseili and his wife Anabella were being attacked by Suliana,  Anne and Messine, dragging Soape into the centre of the road where he was punched and kicked repeatedly by members of that group.

14I accept you were not involved in the circumstances that gave rise to the ill feeling between Lesieli and Anabella on the one side and Suliana,  Anne and Messine on the other. I accept that you were not involved in the decision which led to Suliana , Anne and Messine, and the men associated with them namely Sim, Junior, Leon and Lance to go to Annabella and Soape’s home in Waves Drive that night.

15I accept that your involvement can be explained in large part by your youth and the circumstances in which you found yourself. You had turned 18 only a few weeks before this incident. You had relatively recently before then arrived from New Zealand.  You had completed year 11 at school here and were in your first year out of school engaging in relatively unskilled paid work as an factory worker. Your parents and your three younger siblings were still in New Zealand although that was apparently not the plan when you first came to Australia and undertook your year 11.  You were living with Anne and Leon and Lance at the time and they formed part of your extended family.  Anne together with her siblings Sim and Suliana are your cousins, or perhaps strictly speaking, your step-cousins, being the children of your mother’s stepbrother.

16All of your co-accused are older than you.  The family relationships that I have just described demonstrate that at least some of them have stronger ties to each other than you do to them.

17The matters relied upon on your plea were first your youth.  You are now only 19 and a half, and as I have noted, had just turned 18 at the time.  The significance of the emphasis on the fact that you had only just turned 18 is that had you been only weeks younger you would have fallen to be dealt with in the Children's Court with its very different sentencing philosophy and sentencing regime that applies there.  You have no convictions here or in New Zealand and as I have noted you are here without the support of your immediate family, your parents and siblings, and had been living since the age of 16 or 17 with members of your extended family here in Australia.

18The next matter relied upon was your role. I have already characterised the way I find your involvement. It is important also to note and take into account when considering your role the fact that following the more serious incident which followed the affray that I have detailed, that is the stabbing of Soape, you intervened when on your account and the account of Soape and his brother Sosuia, Sim was, brandishing a knife and chasing them and threatening to kill Soape, as Sosuia was helping Soape who was bleeding and obviously injured, to run away. It was in those circumstances that you grabbed Sim and pulled him away and back to the group that you were with.  As I noted to your counsel, this, given your youth, your connection with Sim, and the family connected with him and the circumstances that obtained in the street at the time, showed considerable courage.

19The next matter is your cooperation with the police and I accept that that is considerable. I accept for the purposes of sentencing you that you had been pressured as you have sworn  in your statement first to take the blame for the stabbing and second to absent yourself in order for the blame to be sheeted home to you in your absence. I accept that your loyalty to your extended family, something that I was told and accept is a significant cultural factor for you with your Tongan background, has made it difficult for you first to withstand the pressure to take responsibility or withstand the pressure to allow others to sheet home responsibility to you, and also has made it difficult for you to make the decision to undertake to give evidence against family members implicating them in the affray and the stabbing.

20You have now sworn that the account in your statement is truthful and you have given an undertaking that you will give truthful evidence at the trial against Sim and Junior in accordance with the statement.  You have done so on the understanding that if you do not honour your undertaking you can be resentenced for the offence of affray.

21In those circumstances I consider your cooperation is significant and deserves considerable reduction in the sentence that otherwise would have been imposed.

22The fourth matter relied upon was your plea of guilty.  Although late entered, two weeks after your failure to answer your bail on the day of your trial, I accept that you had indicated a preparedness to plead guilty to affray at committal, but that the offer was not accepted as the Crown was at that stage seeking a global resolution in respect of all of the accused.  In those circumstances your guilty plea carries more weight than it would had you offered a plea of guilty for the first time on the first day of trial, if you had turned up then, or than it would have if you had simply been found and surrendered yourself after failing to answer bail two weeks after the trial date and whilst the trial of your co-accused was underway.

23More significantly your plea of guilty, coupled with the evidence of your preparedness to cooperate, and the circumstances in which you returned to Australia, together with the evidence I have just recounted of your conduct in pulling Sim away at the end of the fight, in my view, demonstrates considerable remorse on your part and an acceptance of responsibility for your involvement.

24I note that the circumstances since the offence itself and up until your decision to make a statement and to co-operate must have been a time of considerable conflict for you as you are related not only to the group who are standing trial or who have entered guilty pleas but also to the group who for these purposes can be called the victim group, that is Soape, Sosuia, Lesieli, Mafileo and Anabella.

25Soape, Sosuia, Mafileo and Lesieli are also your cousins and they are not step cousins but full cousins, they are the children of your mother’s brother.

26I accept it must have been difficult for you, particularly when you were away from your parents and siblings in New Zealand, and given your youth, to be able to reconcile the conflicting demands of loyalty to those different sides of your family.

27I am told that you wish to return to New Zealand,  to return to your immediate family and to engage in further study in New Zealand, perhaps in the fields of business or accounting, that being the field in which your mother works. There are clearly a number of benefits to that, re-connection with your immediate family, engagement in further study to improve your employment skills and removal from the two factions of the family which have been so divided by the events of this night.  I consider that too is a weighty factor to take into account in considering your prospects of rehabilitation.  They are clearly very good.

28The sentence I impose must balance your youth, the need to encourage  your rehabilitation and the need to encourage and reflect your co-operation with the need to denounce the conduct in which you participated on this night, and the need to deter.  I accept that the needs of specific deterrence have been served by the consequences to you to date, and that your conduct since, including your cooperation, indicate that you have already learnt your lesson.  In my view, denunciation and general deterrence should be significantly moderated having regard to your youth,  your cooperation and the circumstances which led to your becoming involved in this fight with other people.

29In all the circumstances I consider the appropriate sentence is a fine.  I appreciate that given the limited employment history that you have had in Australia and it would appear in New Zealand before you came back here just the other day, that you have been in New Zealand since December, and that you wish to return to there, that your means and capacity to pay a fine are limited.  I also accept that your connection with this country or this State is not only limited but also difficult at this stage.

30However as I indicated in discussions with your counsel, I consider the sentence must have a punitive element to it but I do not consider that a community corrections order or a sentence involving imprisonment whether it is suspended in full or in part or required to be immediately served is appropriate.  All those options are  in my view are too high having regard to those facts that count in your favour that I have identified.  Ultimately it is going to have to be a matter for you whether you pay the fine before you return, whether you enter into an instalment program and pay the instalments whether from here or after you return to New Zealand, or whether you apply to convert the fine to unpaid community work and discharge that obligation before you return to New Zealand.  It is a matter for you to consider what the consequences are if you leave this State and this country without paying the fine.

31What I have done is tried to seek a balance between these often irreconcilable features that will reflect your co-operation, reflect denunciation encourage your rehabilitation and not impose a punishment any greater than I consider appropriate in the circumstances.

32Could you now please stand.

33John Tautua'a on the charge of affray to which you have pleaded guilty you are convicted and you are  fined an amount of $1500.

34There is an automatic stay of one month on that fine.  I am not going to grant an extended period for you to pay that given what I have been told about your circumstances and your hopes.  But I want to explain to you that you have the option of paying the fine within the month if you can or of entering into an instalment program or seeking an extension of time to pay the fine as a lump sum or of applying to convert that fine to unpaid community work.  All of those options are open to you and you can - and the way to work out what you want to do is to have a discussion with the staff at the Registry of this court on the ground floor.

35You should do that before the month is up because otherwise if the fine is not paid and you make no contact with the Registry they are likely to issue a warrant in respect of that unpaid fine and that is the last thing you need after all you have been through.  Registry are very reasonable though in granting extensions of time to pay, entering into an instalment programs or assisting in an application to convert to unpaid community work.  So you will not find them unreasonable.

36That is the only - no further orders required to be made?

37MR McWILLIAMS:  No, Your Honour.

38HER HONOUR:  So that is the end of the sentencing for you.  When I have finished, when I have left the Bench you are free to leave the dock but of course if you are not under subpoena to return to court for giving evidence in the trial I understand that by virtue of your undertaking to co-operate, to give evidence, you will be required to return to this court and it may well be, and I will just discuss this with counsel now, that you will be required to return this afternoon for questioning and before the jury comes back.  No doubt that has already been mentioned to you.  Thank you, you can take a seat again in the dock.

- - -