JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April, 6 May 2020
DATE OF SENTENCE:	7 May 2020
CASE MAY BE CITED AS:	Director of Public Prosecutions v Kotiau
MEDIUM NEUTRAL CITATION:	[2020] VSC 245

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CRIMINAL LAW – Sentence – Assist offender – Assisting in disposal of a body – Early plea of guilty – Undertaking to give evidence in any trial of principal offender – Genuine remorse – Good prospects for rehabilitation – Young offender – No prior criminal history - Community correction order imposed – Crimes Act 1958 (Vic), s 325 - Sentencing Act 1991 (Vic), ss 3, 5, 6AAA, 8A, 37, 38, 45, 48C, 48CA, 48D, 48E, 83AD, 83AS.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke	Office of Public Prosecutions
For the Accused	Mr R Thyssen	Law and Advocacy Centre for Women

HIS HONOUR:

A. Introduction

Kieahn Kotiau, on 6 November 2019, you formally pleaded guilty to 1 charge of assist offender,[1] in relation to events occurring on 17 and 18 February 2019, on the basis that the principal offence was murder. The maximum penalty for this offence is 20 years imprisonment.[2]
[1]Crimes Act 1958 (Vic), s 325(1). A plea of guilty was initially made on the first day of the committal hearing.
[2]Crimes Act, s 325(4)(a), murder being an offence for which the penalty is level 1 imprisonment. Your brother has been charged with murder. He has not yet been tried, but that is not a bar to you being indicted and convicted: s 325(3).

Your offending relates to the assistance you provided to your brother, Shaye Kotiau, to dispose of the body of Tamara Jessica Farrell, whilst knowing or believing that he had murdered her.

B. Background and circumstances of the offending

You and your brother grew up with Ms Farrell and all of you referred to each other as cousins. Your mother and Ms Farrell’s mother had been close friends since they themselves were children. At the time of her death, Ms Farrell was almost 32 years old. You were 19 years old and your brother was 26 years old.

On 16 February 2019, you and your brother went to Ms Farrell’s house for a games night she had invited you both to. You and your brother drove from your family home in Altona (“the Altona House”) and arrived at Ms Farrell’s house in Canadian, near Ballarat, around 11.00 pm. You, your brother, Ms Farrell and Ms Farrell’s flatmate, Russell Goodes, stayed up playing drinking games together at the house until you all went to bed at around 6 am the next morning. As your brother was feeling unwell from excessive drinking, Ms Farrell brought him a bucket and 3 bottles of water, before retiring to her bedroom.

Whilst everyone else was asleep, your brother killed Ms Farrell in her room.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Kotiau

Details

AGLC: DPP v Kotiau [2020] VSC 245
Case: [2020] VSC 245
Decision Date: 7 May 2020

CaseChat Overview and Summary

The defendant, Kotiau, was charged with assisting an offender by helping to dispose of a body. The Director of Public Prosecutions brought the case before the County Court of Victoria. Kotiau pleaded guilty to the charge early, expressing genuine remorse and offering to testify against the principal offender if required. The court needed to decide on an appropriate sentence, considering factors such as Kotiau's early plea, his lack of a criminal history, his prospects for rehabilitation, and his young age.

The court assessed the seriousness of the offence, taking into account Kotiau's level of involvement and the gravity of assisting in the disposal of a body. It also considered the mitigating factors presented, including his early plea of guilty, his offer to provide evidence against the principal offender, and his genuine remorse. The court concluded that a non-custodial sentence was appropriate, given the circumstances and the principles of sentencing under the Sentencing Act 1991 (Vic).

After weighing all the factors, the court imposed a community correction order on Kotiau, recognising his early plea, remorse, and potential for rehabilitation. This decision aligns with the objectives of the Sentencing Act, emphasising punishment, deterrence, and rehabilitation. The court's decision reflects a balanced approach to sentencing, taking into account both the seriousness of the offence and the mitigating factors presented by the defendant.

The final orders of the court were that Kotiau be subject to a community correction order, which includes specific conditions aimed at ensuring his rehabilitation and reintegration into society. This outcome demonstrates the court's consideration of both punitive and rehabilitative aspects of sentencing, tailored to the individual circumstances of the offender.

Orders