R v Latu

[2021] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

R v Latu [2021] QCA 202

PARTIES:

R
v
LATU, Webbstar
(applicant)

FILE NO/S:

CA No 240 of 2020
SC No 1701 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 9 October 2020 (Boddice J)

DELIVERED ON:

24 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2021

JUDGES:

Sofronoff P and McMurdo JA and Mazza AJA

ORDER:

Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – where the applicant and seven other offenders were involved in the unlawful killing of two people – where the applicant pleaded guilty to two counts of manslaughter and received concurrent sentences of 12 years’ imprisonment – where a co-offender was found guilty of two counts of manslaughter and two counts of torture after a trial – where the co-offender received terms of 13 years’ imprisonment and six years’ imprisonment for the manslaughters and the tortures – where the sentencing judge described that co-offender’s involvement as ‘significantly more’ than the applicant’s – whether there is a disparity in the sentences which gives rise to a justifiable sense of grievance

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited

COUNSEL:

S L Kissick for the applicant
D Nardone for the respondent

SOLICITORS:

MacDonald Law for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with the reasons of McMurdo JA and with the order proposed by his Honour.

2. McMURDO JA:  The applicant was charged, together with seven other persons, with the murders of a man and woman on 24 January 2016.  Four of those seven were convicted of the murders.  Another was convicted, after a trial, of manslaughter.  The three other accused, including the present applicant, were convicted of manslaughter on their pleas of guilty to that offence

3. The applicant was sentenced to concurrent terms of 12 years’ imprisonment, with the necessary declaration that these were serious violent offences.

4. Of the three offenders who pleaded guilty to manslaughter one was Ms Mareiti, who was sentenced to nine years’ imprisonment, and for whom there were circumstances particular to her case which warranted the discount of an otherwise appropriate sentence.  Another who pleaded guilty to manslaughter was Mr Mariri, who was sentenced to 13 years’ imprisonment for each manslaughter offence, and concurrent terms of six years’ imprisonment for the torture of each victim.

5. The applicant seeks leave to appeal against his sentence, on the ground that there is an impermissible disparity between his sentences and those imposed on Mr Mariri.  His application for leave to appeal, as filed, was made upon the ground that the sentence was manifestly excessive, having regard to the applicant’s pleas of guilty, his personal circumstances, his co-operation with police, his level of involvement in the killings “and parity”.  However, at the hearing, his counsel confined his argument to the suggested disparity.

   The offences

6. All of the relevant events occurred on the day on which the victims were killed.  Their decomposing bodies were found, 18 days later, in a large metal toolbox that had been submerged in a lagoon in Scrubby Creek at Kingston.  The victims died by drowning, or by asphyxia when they were trapped inside the toolbox.

7. All of the eight accused and their victims were drug dealers and/or drug users.  One of the accused, Mr Daniels (who was subsequently convicted of murder), became aware that the male victim, Mr Breton, had a photograph of Daniels on his mobile phone, attached to a SMS message asking Breton “is this him”, to which Breton had replied “yes”.  On that evidence, Daniels believed (mistakenly) that Breton and others, including the other victim, Ms Triscaru, intended to kill him.

8. In response to this perceived threat, Daniels caused the victims to be lured to a unit in Kingston, where they were assaulted, bound and forced into the toolbox.  Three of the four who were convicted of murder were also convicted of the torture of the victims, as was Mariri.  In sentencing Mariri, Boddice J described the torture offences as “sustained and brutal”.  Boddice J said that “Breton’s screams of pain did not cause anyone to desist [and that] instead you [Mariri] directed that the doors and windows [of the unit] be closed, so that his cries would not be heard by outsiders.”

9. The applicant was in a relationship with Mareiti.  The two of them went to the unit at about 4.15 pm on the day, in order to obtain drugs.  When they arrived, the victims were already there and were restrained by zip ties.  It was evident that they had been assaulted.  The applicant and Mareiti were taken by Daniels to the garage of the unit and shown the photograph of Daniels on Breton’s phone, and Daniels told them that this is why the victims were at the unit.  Mareiti was told to go out to buy cleaning products and alcohol.  The applicant stayed at the unit and became involved in the offending, first by helping to carry the (empty) toolbox into the unit.  He then assisted Mareiti in cleaning the unit.  The applicant heard the victims being ordered to get into the toolbox, and whilst at the unit, he and Mareiti became aware that the victims were inside it.  They could hear the victims screaming from within the box and kicking it.  The victims were still doing so, as the applicant helped lift the toolbox, onto the back of a utility truck which was outside the unit.

10. The applicant and Mareiti were told to travel in convoy with other vehicles, and they did so, with the applicant driving Breton’s car which followed the utility.  However, they then lost track of the other vehicles, after which they were telephoned and told to drive to Cleveland, where they met Daniels, before they were driven back to the unit.  They did not go to the lagoon where the toolbox was taken by two of those who were convicted of murder.

11. At his sentencing hearing, the applicant agreed to a summary of facts in which his participation was described as follows:

    “When Latu assisted by cleaning up the unit at Juers St and by lifting the toolbox onto the [utility] and by driving Breton’s [car] away from Juers St, he knew that the killing of Breton and Triscaru was a probable consequence of joining in the unlawful purpose of detaining Breton and Triscaru in the manner and the circumstances they were detained.”

    (Emphasis added.)

12. On the day following the offences, each of the offenders went to stay at an apartment in Brisbane, which had been booked by Daniels who wanted to ensure that they all remained silent.  Media reports on 10 February 2016 caused the offenders to flee from there, and eventually, the applicant was arrested in December 2016.  He was then interviewed by police and made admissions which were consistent with the facts as I have described them, although he did not name any of the participants, apart from Mareiti, because he feared that there would be repercussions for his family.

13. The applicant was charged with the murder of the two deceased, and an indictment was presented in November 2018.  There was a Basha inquiry, in March 2020, in which Mareiti was cross-examined (she having pleaded and been sentenced by then).  On 2 October 2020, the applicant pleaded guilty to offences of manslaughter and he was sentenced about a week later.  A total of 1703 days of pre-sentence custody was declared as time served.

    The sentencing reasons

14. The judge noted that the applicant was aged 31 at the time of the offences, and 36 when sentenced.  He had a criminal history involving convictions for offences dating back to when he was aged 18, for less serious offences of violence and property matters.  He had never been sent to prison.  He had twice been sentenced to terms of imprisonment for 12 months, but those terms were ordered to be served by way of an intensive correction order.

15. The sentencing judge, (again Boddice J) said that the applicant was to be given credit for having pleaded guilty, although it could not be said that these were early pleas.  His Honour accepted that his pleas of guilty evidenced “a level of remorse”, and he noted that the applicant had made some admissions when first spoken to by police.

16. The judge referred to the applicant’s personal circumstances.  He said that the applicant had been a hard worker for most of his adult life, had been married and was the father of two children.  However, at the time of these events, the applicant’s life “was in something of disarray”: his marriage had failed, he had moved away from his family support network and he had become a user of drugs.  The judge added that the extensive time spent in custody had made the applicant reflect on his behaviour, and that he had taken steps to try and reconnect with his family.  His Honour noted that a practical consequence of these convictions was that the applicant would be likely to be deported upon his eventual release, with a significant impact on his relationship with his family.

17. The judge said that he had had regard to sentences which he had imposed on others who were involved in these offences.  In particular, his Honour said:

    “I accept that in the case of Mariri, his involvement was significantly more than yours in relation to matters, and, therefore, your sentence ought not to be in the magnitude that was considered for his involvement. As against that, there were factors in his favour, including age and other matters that were taken into account in affixing the sentence that was ultimately imposed on that offender.

    I have also had regard to the sentence that was imposed on Mareiti and the particular circumstances in which that sentence was imposed. There is substance, in my view, in the contention that there is a certain level of similarity in the criminal conduct of Mareiti and yourself, in terms of the fact that neither of you were involved in the torture of either of these victims. Both of you were involved more in the process towards the end of that awful ordeal. Mareiti, of course, also had her own personal circumstances which were taken into account when affixing her sentence.”

    Mariri’s sentence

18. Ms Mareiti was sentenced in December 2019.  Mr Mariri was sentenced in July 2020.  It is necessary to discuss only his Honour’s reasons in sentencing Mariri.

19. Mariri’s participation, as detailed by the judge, included conduct when, after one of the victims had tried to escape from the toolbox and had been put back inside it, Mariri and others sat on top of the box to prevent any further escape.  Mariri was present when rubbish and personal items were removed from the unit and placed inside the box with the victims.  As the toolbox was taken from the unit and placed into the back of the utility, Mariri distracted other residents of the unit complex who were hearing noises made by the victims.  Mariri also directed others to help clean the unit.

20. Mariri was aged 24 years at the time of the offences, and 29 when sentenced.  Like the applicant, he was born in New Zealand and held only a temporary visa.  Mariri had a criminal history in Queensland, having been before courts on seven occasions in relation to 23 offences, predominantly offences involving property with no significant offences of violence.

21. The judge said that Mariri had “a significant addiction to drugs”, but that he had taken steps towards rehabilitation whilst in custody.  A letter of support indicated to his Honour “a significant change in attitude and approach” in that time.  The judge compared Mariri’s case with Mareiti’s case, saying that Mareiti had very little practical involvement in any encouragement of others, and that his involvement was significantly greater than hers.

    Another co-offender: Mr Walker

22. After the applicant’s sentence was imposed, Boddice J sentenced another co-offender, Walker, for two counts of manslaughter.  In his case also, terms of 12 years’ imprisonment were imposed.  He was convicted after a trial.  Walker became aware that the victims were being held and beaten, and he did not report this to police when his partner implored him to do so.  Later on in the day, he returned to the unit and remained there until the toolbox was removed, before leaving and driving the co-offender Daniels away from the unit.  His participation was less than that of the applicant, but Walker was convicted only after a trial.  Walker had what the judge described as a “largely irrelevant” criminal history.  Counsel for the respondent submits that there was no disparity between the present sentence and that ordered in Walker’s case, which is rightly accepted by the applicant’s counsel.

    Consideration

23. As noted already, the only ground which is argued is that there was an unacceptable disparity between this sentence and the sentence for Mariri.  His Honour said, when sentencing the applicant, that Mariri’s involvement was significantly more than that of the applicant, warranting a sentence of a lesser magnitude in the applicant’s case.  The question is whether his Honour erred in concluding that the difference should be one year of imprisonment.

24. Undoubtedly, Mariri’s participation in the unlawful killings was more extensive than that of the applicant.  There was also the circumstance that Mariri was a party to the torture of the victims.  Mariri received substantial sentences for those offences, but they were made concurrent with his terms for the manslaughter offences.  The torture offences made Mariri’s overall criminality yet more serious.

25. Mariri was younger, and his criminal history was not as extensive as that of the applicant.  That having been said, Mariri was aged 24, and not (say) 18 or 19, and the applicant’s criminal history had not resulted in him going to prison at any time.

26. The reason why the Court interferes with a sentence on this ground “is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done”.[1]  The Court will not “intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”[2]  Any disparity must be “marked”.[3]

    [1]Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ.

    [2]Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ; Green v The Queen (2011) 244 CLR 462 at 474-475 [31] per French CJ, Crennan and Kiefel JJ.

    [3]Green v The Queen (2011) 244 CLR 462 at [32].

27. If there was a disparity, having regard to the differences in the offending of the applicant and Mariri, I would see no significant difference between their personal circumstances which could explain that disparity.  The difference in their levels of participation was significant and it did warrant a lower sentence in the applicant’s case.  The assessment of the extent of that difference involved a qualitative and discretionary judgment by the primary judge to which this court must have regard.[4]  It was open to the sentencing judge to impose a lower sentence than the 12 years which was ordered in this case, in order to reflect the different levels of criminality.  However, in my view, it is not demonstrated that his Honour was obliged to do so.

    [4]Green v The Queen (2011) 244 CLR 462 at [32].

28. The proposed ground of appeal fails.  I would order that the application for leave to appeal against sentence be refused.

29. MAZZA AJA:  I agree with McMurdo JA.