R v Latuhoi - [2024] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0218

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NIKOLA LATUHOI	Accused

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2023
DATE OF SENTENCE:	15 March 2024
DATE OF PUBLICATION:	25 March 2024
CASE MAY BE CITED AS:	DPP v Latuhoi
MEDIUM NEUTRAL CITATION:	[2024] VSC 136

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CRIMINAL LAW — Sentence — Manslaughter — Unlawful and dangerous act — Drive‑by shooting — Shots fired into crowd at night — Unknown shooter — Accused was driver of car — Serious example of manslaughter — Late guilty plea — Opportunity to withdraw — High moral culpability — Unwilling to identify shooter — No diagnosable intellectual impairment or mental illness — No drug or alcohol use disorder — No meaningful remorse — Guarded rehabilitation prospects — General deterrence, denunciation and just punishment important — R v Verdins (2007) 16 VR 269 — Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	E Ramsay P Pathmaraj	Office of Public Prosecutions
For the Accused	D Gurvich KC V Vuu	Radovic Lawyers

HIS HONOUR:

Introduction

Nikola Latuhoi, on 20 July 2023, you pleaded guilty to killing Ikenasio Tuivasa just before midnight on 27 February 2021.

At that time, a group of people had gathered in a carpark at the front of the All‑Star Lounge bar in Ravenhall. Shortly before midnight, a Toyota Hilux [‘the Hilux’] pulled up outside the venue. An unknown person sitting in the passenger seat of the Hilux discharged four or five shots into the group of people. One of the bullets hit Mr Tuivasa in the skull, fatally wounding him. Another bullet hit a different man, Reza Amir, in the leg.

You were the driver of the Hilux at the time. You were charged with murder and attempted murder. You pleaded not guilty to both of these charges at the time of your committal hearing. You subsequently agreed to plead guilty to one charge of manslaughter, clearing the indictment.

The maximum penalty for the offence of manslaughter committed at the time of your offending is 25 years’ imprisonment. The maximum penalty for this offence increased from 20 years’ imprisonment to 25 years’ imprisonment on 4 June 2020.

Background
The deceased — Ikenasio Tuivasa

Mr Tuivasa was 35 years old at the time of his death. He was born in Samoa, but migrated to Australia in 2013. He had no prior criminal history.

At the time of his death, Mr Tuivasa was in a long‑term relationship with his partner, MP. They had five children together, all of whom are currently under 14 years of age. The evidence placed before the court indicates that Mr Tuivasa was a family man, spending most of his time caring for his partner, his children and his elderly parents. On occasions, he would venture out with his younger brothers and friends. It was on such an occasion that he was killed.

You did not know Mr Tuivasa, and…

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 Latuhoi

Details

AGLC: R v Latuhoi [2024] VSC 136
Case: [2024] VSC 136
Decision Date: 15 March 2024

CaseChat Overview and Summary

The case of R v Latuhoi dealt with the sentencing of the defendant for manslaughter following a drive-by shooting where shots were fired into a crowd at night. The accused was the driver of the car from which the shots were fired, although the actual shooter remains unidentified. The Supreme Court of Victoria was tasked with determining the appropriate sentence for the defendant, who pleaded guilty to manslaughter at a late stage in the proceedings. The court had to consider a range of factors, including the seriousness of the offence, the level of moral culpability, the prospects for rehabilitation, and the need for general deterrence and denunciation.

The central legal issues before the court were the degree of moral culpability attributable to the defendant, the potential for his rehabilitation, and the appropriate sentence that would balance the principles of general deterrence, denunciation, and just punishment. The court also needed to weigh the defendant's late guilty plea, his refusal to identify the shooter, and the absence of any intellectual, mental, or substance use disorders. The prosecution argued for a sentence that reflected the gravity of the crime, while the defence sought to mitigate the sentence by emphasising the defendant's limited role and the circumstances surrounding his plea.

In delivering the judgment, the court found that the defendant bore a high level of moral culpability for his actions, despite not being the actual shooter. The court noted that the defendant had ample opportunity to withdraw from the situation but chose not to do so. The court found that there was no evidence of any meaningful remorse on the part of the defendant, and his prospects for rehabilitation were guarded at best. The court emphasised the importance of general deterrence and denunciation in this case, ensuring that the sentence served to uphold the law and protect the community. In accordance with the principles set out in R v Verdins, the court ultimately determined that a sentence of imprisonment was necessary to achieve these objectives.

The final orders of the court were that the defendant be sentenced to a period of imprisonment, with specific details of the sentence left to be determined by the sentencing judge in light of the detailed findings and considerations outlined in the judgment. The court's reasoning underscored the importance of addressing both the specific circumstances of the case and the broader societal need to maintain the rule of law and deter similar conduct in the future.

Orders