R v Cuenco
[2006] VSC 7
•19 January 2006
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1522 of 2003
| THE QUEEN |
| v |
| CELSO CUENCO |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-23, 25-26, 29-31 August, 1-2, 5-9, 12 September 2005 and 18 January 2006 | |
DATE OF SENTENCE: | 19 January 2006 | |
CASE MAY BE CITED AS: | R v Celso Cuenco | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 7 | |
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Criminal Law – Sentencing – Manslaughter and Intentionally Causing Serious Injury – Stabbing of fellow postal workers – victims father and son – father died – son seriously injured – prisoner provoked into reacting excessively to attack by victims – Sentence of 7 years – non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gamble | Office of Public Prosecutions |
| For the Accused | Mr G. Georgiou | Victoria Legal Aid |
HIS HONOUR:
Celso Cuenco, more usually known as Nelson Cuenco, you have been found guilty by a jury of two offences committed at Dandenong on 13 November 2003. One was that of the manslaughter of Celso Mayor. The second was that of intentionally causing serious injury to Christopher Mayor. Celso Mayor was the father of Christopher Mayor. All three of you were working at the time at the Dandenong Mail Exchange. The two offences were committed in the car park of the Mail Exchange shortly after midnight in the early morning of 13 November 2003.
At that time, you barely knew Christopher Mayor. But you had come to know Celso Mayor quite well. Like you, he had been born and raised in the Philippines. For a time, while working together at the Mail Exchange, the two of you had been friends. However, for more than one reason, that position changed. For at least some months leading up to November 2003, relations between the two of you had soured. The level of acrimony was increasing.
At a work break around 9 p.m. on 12 November, you and he yet again traded insulting words. At midnight you finished your shift and walked from the Mail Exchange building to your 4WD in the car park. There you prepared to leave. You turned on the ignition, then walked to the back section of the 4WD to discard work clothes. In the back section was a fishing tackle box. In that box was a folding knife. Unfolded, it was nearly 30 cm long. You were near the back of your 4WD when the two Mayors attacked you. They were calling out. They were both wielding the belts from their trousers. They were clearly intent on assaulting you. You took up the knife from your fishing tackle box. It gave you a considerable advantage, but not in the initial assault, where the advantage was with the two Mayors. As you were set upon, the three of you moved away from the 4WD. You were struck to the head and body several times with the belt buckles. You managed to stab Christopher Mayor at that time. You then brandished the knife. At that critical time, all three of you should have then retreated. For a time, Christopher Mayor did retreat. Celso Mayor did not. He chose to wield his belt at you, apparently to try to get the knife from out of your hand. You could have retreated. You chose instead to take the advantage that the knife then gave you. You stabbed Celso Mayor to the chest. That first blow could easily have been seen to be in self-defence. But you followed up the first thrust with more. And not all of them were struck when Celso Mayor was standing.
After the first stab that you inflicted on him had weakened him, he went to his knees and then to the ground. While he was on the ground, he tried to use his boot to ward you off. You stabbed his foot through the leather of the boot. You stabbed him in the chest again while he was on the ground. All of the four stab wounds that he suffered to his chest penetrated to at least the length of the knife blade. The more stab wounds you inflicted, the less they could be seen to be justifiable. The final stab wound inflicted was, of course, the least justifiable of all. By then, you had clearly established your ascendancy over Celso Mayor. And you had done so in the presence of Christopher Mayor.
You could have chosen then to move away. Instead, you chose to turn your attention to Christopher Mayor. He tried to run from you. You stabbed him to the shoulder. He went to the ground. While he was on the ground, you stabbed him in the chest. The injuries that he suffered from a number of knife wounds were serious. Fortunately for him and for you, they were not life-threatening.
I find that you did not act in a premeditated way. I find that the words and actions of your victims as they attacked you were such as to provoke in you a loss of self control, such that you were not then able to sensibly measure the appropriate level of response to their attack. You acted in an excessively violent way after defending yourself against both victims. It was at that later stage, after their attack was repulsed, that you most clearly demonstrated your intention to cause at least serious injury to both victims. Although there were two clearly identifiable sets of actions against two victims, they were closely related, and substantial concurrency is appropriate.
I have read the four victim impact statements which have been lodged with the court. They were prepared by each of Celia Mayor, the wife of Celso Mayor, by Christopher Mayor, and by Christopher’s two younger brothers, Celso junior and Carlo. Those statements provide some inkling of the continuing enormous personal tragedy that the death of Celso senior has been for all of them. His death has been particularly traumatic for Celia and Christopher. There has been great pain left from the loss of a loving husband and father, through the loss of support, financial, emotional and advisory and in many other ways. They are left variously with anxiety, moodiness, paranoia, sleeplessness, nightmares, and loss of confidence. Those adverse consequences are accentuated by the need to continue to attend, for work purposes, the area where Celso senior was killed. The four are also beset with concerns as to the adverse effects on other members of the family not only from the death of Celso senior, but from the physical and psychological consequences of Christopher’s injuries.
I turn from their plight to a summary of your background. Much more detail is to be found in the report of Mr Joblin. His report is supplemented by a number of testimonials from many of your friends and acquaintances who have referred approvingly to their contact with you in various settings. The main setting is that of your church, where your talents as a guitarist have been well used. You were born in the Philippines in March 1962 into a poor family. You have several siblings, all apparently law-abiding. You were educated in Makati to the age of 18. You were engaged in youth development work for some 6 years, including in a managerial role. You came to Australia in 1986. That came about as a result of your having entered into a close relationship with an Australian man named Jim Allard, who died in 2001. That relationship continued for well over 20 years. In 1993, you married a woman from the Philippines, who bore you a son. She has later opted to live separately from you. She and your son now live in Sydney. You have contact with your son. Before Jim Allard’s death, you had begun a relationship with Sonya Cabo. That relationship has persisted. She remains very supportive of you and the two of you hope to marry. The testimonials tendered on the plea make it clear that you have many other supporters. In Australia, you have worked consistently in a variety of jobs for nearly twenty years. You suffer from asthma but not from any other major physical or mental health problems.
I take into account in your favour a number of matters. One is that you have no prior convictions or other unfavourable contact with the courts. When on bail, you complied with the conditions imposed. Another favourable consideration is that you have shown a high level of remorse. Mr Joblin describes you as extremely remorseful and has elaborated on why he has so found. Another is that you called for, and co-operated with, ambulance and police, immediately after offending. Another is that your prospects of rehabilitation appear to be very good. I note in that regard the number of prison courses that you have undertaken, as well as the numerous testimonials. Another is that you had been in a somewhat vulnerable psychological state as at the time of the offences for reasons linked to the state of your relationships.
I have signed the two orders submitted to me, as to disposal and body sample retention, there being good reasons and no objection. I declare that you have served by way of pre-sentence detention 434 days. I direct that that be entered in the court records. On the manslaughter count, I impose a sentence of imprisonment of 6 years. On the intentionally causing serious injury count, I impose a sentence of imprisonment of 4 years, concurrent as to 3 years on the manslaughter count. The head sentence is 7 years. I fix a non-parole period of 5 years.
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