DPP v Maulio, Tuvale & Poluleuligaga - [2006] VSC 188

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1534 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

KITIANO MAULIO

and

TALA JUNIOR TUVALE

and

SILEI AGNES POLULEULIGAGA

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 22 May 2006
DATE OF SENTENCE:	23 May 2006
CASE MAY BE CITED AS:	DPP v Maulio, Tuvale & Poluleuligaga
MEDIUM NEUTRAL CITATION:	[2006] VSC 188

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Criminal Law – Sentencing – Affray – Intentionally causing injury – Recklessly causing serious injury - Pleas of guilty – Young offenders - 5 ½ years delay – Short affray – Minor role in affray and consequences - Adjournment without conviction – Community based order - Sentencing Act 1991, ss. 37, 38. 38, 75 and 109.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T Gyorffy QC with Mr P A D’Arcy	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For Kitiano Maulio For Tala Junior Tuvale For Silei Poluleuligaga	Mr Mark Rochford Mr Dermott Dann Mr David Drake	Robert Stary and Associates Chris McLennan and Co Simon English Solicitors

HIS HONOUR:

Kitiano Maulio, Tala Junior Tuvale and Silei Agnes Poluleuligaga, you have each been presented on a charge that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. You have each pleaded guilty to this charge.

The maximum penalty prescribed for the commission of this offence is 5 years imprisonment.

Mr Tuvale, you have been presented on a further charge that at Broadmeadows on 18 November 2000 you without lawful excuse intentionally caused injury to Mohmoud El-Haouli. You have pleaded guilty to this charge.

The maximum penalty prescribed for the commission of this offence is 10 years imprisonment.

Mr Maulio, you have been presented on a further charge that at Broadmeadows on 18 November 2000 you without lawful excuse recklessly caused serious injury to Murat Shomshe. You have pleaded guilty to this charge.

The maximum penalty prescribed for the commission of this offence is 15 years imprisonment.

I will now describe the circumstances in which each of you committed the respective offences. First I will describe the circumstances of the affray in general. Then I will move to your individual roles in that offence, which were limited, and the circumstances of the further offences with which you, Mr Tuvale and Mr Maulio, have been charged.

First, the general circumstances of the affray. At about 11.30pm on 18 November 2000 a fight occurred between two groups of youths on Pearcedale Road, Broadmeadows between the Safeway supermarket and a building known as Youth Central. At the time there were many people in the area. A cultural festival was underway in the car park and streets around the supermarket. The two groups are referred to in the depositions as the “Islanders”, which is the group to which you all belonged, and the “Turks” which is the group to which Mr El-Haouli and Mr Shomshe belonged. A third group of youths was involved in events that took…

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.

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Details

Case: [2006] VSC 188
Decision Date: 23 May 2006

CaseChat Overview and Summary

The defendants, Maulio, Tuvale and Poluleuligaga, were before the court in relation to their involvement in an affray that resulted in the serious injury of another person. They had pleaded guilty to their charges, which included intentionally causing injury and recklessly causing serious injury. The defendants were young offenders and had experienced a delay of 5 ½ years before their case was heard. The court was tasked with determining an appropriate sentence that would reflect the seriousness of the offence, the delay in sentencing, the defendants' minor role in the affray, and the consequences of their actions.

The primary legal issues for the court to consider were the appropriate penalty for the defendants' involvement in the affray and the need to balance the punishment with the principles of rehabilitation and deterrence. The court had to take into account the defendants' age, their minor role in the affray, the delay in sentencing, and the consequences of their actions. The court also had to consider the relevant provisions of the Sentencing Act 1991, including sections 37, 38, 38, 75 and 109, which provide guidelines for sentencing young offenders and those who have pleaded guilty.

The court determined that the appropriate sentence for the defendants would be an adjournment without conviction, coupled with a community-based order. This decision was based on the defendants' minor role in the affray, the delay in sentencing, and the potential for rehabilitation. The court held that the defendants' age and the consequences of their actions warranted a sentence that focused on rehabilitation and deterrence, rather than punishment alone. The court found that a community-based order would provide the defendants with an opportunity to address the underlying issues that led to their criminal behaviour, while also holding them accountable for their actions.

In conclusion, the court sentenced the defendants to an adjournment without conviction, along with a community-based order. This decision was based on the defendants' minor role in the affray, the delay in sentencing, and the potential for rehabilitation. The court held that this sentence would adequately address the seriousness of the offence while also promoting rehabilitation and deterrence.

Orders