R v AM - [2021] VSC 397

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0054

THE QUEEN	Crown
v
AM	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 & 23 June 2021
DATE OF SENTENCE:	2 July 2021
CASE MAY BE CITED AS:	R v AM
MEDIUM NEUTRAL CITATION:	[2021] VSC 397

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CRIMINAL LAW – Sentence – Robbery – Of two young people waiting at a bus stop – Crime committed in company with another offender – Third offender joined in attack upon victims, killing one and seriously injuring the other – Accused originally charged with murder and other crimes – Long period on remand – Criminal history for similar offending – Early offer to plead guilty - Lack of remorse – Accused sentenced as child – Sentencing considerations – Released on a youth supervision order with conviction for 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions
For AM	Mr T Marsh	Victoria Legal Aid

HIS HONOUR:

Introduction

AM, you have pleaded guilty to a charge of robbery, and admitted prior convictions. Your robbery was of a young man named Nathanial Hakiwai (‘ Nathanial ’) and took place in the middle of the day at a bus stop on a busy suburban street in the north-west of Melbourne. Your co-offender is Chol Kur (‘Kur’) who also pleaded guilty to a charge of robbery. While you and Kur were in the process of carrying out your crime, a friend of yours, Joshua Horton (‘Horton’), carried out attacks using a knife upon the younger brother of Nathanial , Maaka, and then upon Nathanial himself. Maaka was killed and Nathanial was seriously injured. You are not responsible for those crimes.

The maximum penalty for the crime of robbery is imprisonment for 15 years.

Background

Nathanial was aged 18 at the time of the events. His younger brother Maaka was 17, having celebrated his birthday only ten days before his death. They are the two sons of Stirling and Karli Hakiwai. Mr Hakiwai was from New Zealand of Maori background. He moved to Australia in 1999, meeting his eventual wife shortly after his arrival. They have four children together, the younger two being sisters for Nathanial and Maaka named Leilani and Kiripaeahi (Kiri-Pye-Ahee).

For some years, the family lived on the Gold Coast while Mr Hakiwai worked in various locations on a fly-in fly-out basis. In May 2019, however, he secured new employment in Melbourne. He relocated here in June 2019, and was joined in turn by Maaka and then Nathanial . It was planned that his wife Karli and the two younger children would move to Melbourne to join Stirling and the boys at the conclusion of the 2019 school year. Tragically, because of the criminal actions of Horton, that never occurred.

At the time of these events, Stirling, Nathanial and Maaka were living together at a house in Main…

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 R v AM

Details

AGLC: R v AM [2021] VSC 397
Case: [2021] VSC 397
Decision Date: 2 July 2021

CaseChat Overview and Summary

The accused, AM, was charged with a range of offences arising from an incident in which two young people were attacked while waiting at a bus stop. The attack was perpetrated by a group of three people, one of whom stabbed one of the victims to death, while the others assaulted the second victim. The accused was originally charged with murder, armed robbery, and assault occasioning actual bodily harm. The matter was heard in the Supreme Court of Queensland. The accused pleaded guilty to manslaughter, armed robbery, and assault occasioning actual bodily harm.

The legal issues before the court were the appropriate sentence to impose on the accused, taking into account the nature of the offence and the accused's criminal history. The court considered the accused's age at the time of the offence, the fact that the accused had shown a willingness to plead guilty early in the proceedings, and the accused's criminal history, which included similar offending. The court also considered the accused's lack of remorse and the impact of the offence on the victims and their families.

In sentencing the accused, the court noted that the accused was a child at the time of the offence and that the accused had shown some willingness to take responsibility for their actions by pleading guilty early in the proceedings. However, the court also noted the severity of the offence and the accused's criminal history, which included similar offending. The court ultimately sentenced the accused to a youth supervision order with a conviction for 9 months, reflecting the need for both punishment and rehabilitation.

The court made clear that the sentence was not intended to be lenient, but rather to provide the accused with an opportunity to turn their life around and avoid further offending. The court also noted that the sentence reflected the seriousness of the offence and the impact it had on the victims and their families.

Orders