R v Bourbaud - [2011] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 120 of 2010

THE QUEEN

KENNY MAX BOURBAUD

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2011 (Plea)
DATE OF SENTENCE:	10 August 2011
CASE MAY BE CITED AS:	R v Bourbaud
MEDIUM NEUTRAL CITATION:	[2011] VSC 374

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CRIMINAL LAW – Sentencing – Manslaughter – Fight involving both victim and prisoner – Single stab wound to victim’s back causing death – Offer to plead guilty not accepted – Genuine remorse – Young offender – Onerous conditions while in custody – Opportunity for rehabilitation in Youth Unit.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Rose SC Ms A Fox	Office of Public Prosecutions
For the Accused	Mr W Stuart	Serratore Legal

HIS HONOUR:

Kenny Max Bourbaud, on 18 April 2011 a jury found you guilty of the manslaughter of the deceased, Uili (Willy) Tiotala. You had originally been charged with murder and you stood trial on that count. The jury found you not guilty of that charge, but guilty of the alternative of manslaughter.

On 26 July 2011, I heard submissions on behalf of the Director of Public Prosecutions and submissions from your counsel, Mr Stuart, as to the sentence that should be imposed upon you and it is now my responsibility to sentence you for the offence of manslaughter.

The incident which led to the death of Willy Tiotala occurred on 8 July 2009 in the vicinity of premises at 1 Mullett Street Hastings, where you resided with the witness Chris Mitchell.

You and Willy Tiotala had apparently known each other for some time before July 2009 when these incidents occurred, resulting in Tiotala’s death. You moved in to Mitchell’s flat at 1 Mullett Street about three or four months before the incident occurred.

On 8 July 2009, you had been at the flat all day and your girlfriend, Brooke Lowe, had arrived at about 3.30pm. During the time that she was there, the evidence suggested that Willy Tiotala had also visited you there. The events of the afternoon seem to include the following. First, Willy Tiotala visited the flat and you and he commenced to drink. At some stage after that, you and Tiotala left the flat to get more alcohol and returned with a slab of beer. Some time after that there was some form of argument between you and Willy Tiotala. At about 10.30pm your parents arrived with a friend of theirs, Scott Smith. It would appear that both your parents and Smith were significantly affected by alcohol, having been at hotels in the immediate area before arriving at your flat.

Willy Tiotala was present when your parents were there and, during that time, there was again some form of argument which resulted in Tiotala being told to leave the premises. He did so and went to his unit which was upstairs.

Some time later in the evening you and Scott Smith went outside and yelled…

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 Bourbaud

Details

AGLC: R v Bourbaud [2011] VSC 374
Case: [2011] VSC 374
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of R v Bourbaud involved a dispute concerning the appropriate sentence to be imposed on a young offender who had been convicted of manslaughter following a fatal stabbing. The offender had been involved in a physical altercation with the victim, resulting in a single stab wound to the victim's back that led to the victim's death. The case was heard and determined in the Supreme Court of Victoria.

The central legal issues the court had to decide were the appropriate sentence to be imposed on the offender and the specific conditions of the sentence, including the period of imprisonment and the period before the offender would be eligible for parole. The court also considered the offender's offer to plead guilty, which was not accepted, as well as the genuine remorse shown by the offender and the potential for rehabilitation within the Youth Unit.

The court acknowledged the offender's genuine remorse and the challenging conditions experienced while in custody, which provided an opportunity for rehabilitation. However, the court also emphasised the gravity of the offence and the need to balance the principles of punishment, deterrence, and rehabilitation. The court determined that a nine-year sentence was appropriate, with a non-parole period of six years. The court considered the offender's age and potential for rehabilitation but ultimately found that the sentence needed to reflect the seriousness of the offence.

The court imposed a nine-year sentence of imprisonment for the offence of manslaughter, with a non-parole period of six years. The court directed that the offender would not be eligible to apply for parole until the six-year non-parole period had been served.

Orders

Orders of the court

On the count of manslaughter, you will be imprisoned for a period of nine years. I direct that you serve a period of six years before being eligible to apply for parole.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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