R v Makike - [2003] VSC 340

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1442 of 2003

THE QUEEN

TEREPAI MAKIKE

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 AUGUST 2003
DATE OF SENTENCE:	26 AUGUST 2003
CASE MAY BE CITED AS:	R v MAKIKE
MEDIUM NEUTRAL CITATION:	[2003] VSC 340

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Sentence – Manslaughter – Father killed son after two or three blows struck to the head and neck region – Rupture to artery resulting in traumatic subarachnoid haemorrhage - Victim had a blood alcohol concentration of 0.16 per cent – Injury one to which persons with elevated blood alcohol concentration seem especially vulnerable – Offender affected by alcohol – Attempt to exercise parental authority - Immediate and continuing remorse – Exceptional circumstances – Absence of any prior convictions - Sentenced to a total of 3 years' imprisonment wholly suspended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	Office of Public Prosecutions
For the Accused	Mr P. D'Arcy	Victoria Legal Aid

HIS HONOUR:

Terepai Makike, you have pleaded guilty to one charge of manslaughter. The victim was your son, Beniamina. On 17 May 2002 he celebrated his 18th birthday. Three weeks later, in the early hours of Sunday 9 June 2002, he was dead. His death was premature and unnecessary. It is therefore tragic. It is your part in that tragedy which brings us here now.

In order to understand the role you played we must examine some of the background. The evidence is that you are a good and loving father. It was in part your concern for your son's welfare which, perhaps because he took a different view of it, led to an argument between you. The dispute arose during a party which began at about 4 p.m. on Saturday 8 June when both you and your son were affected by alcohol, and at a time when you were concerned about your son's perceived encouragement of another young relative to consume marijuana. You struck your son with your elbow in the region of the neck and head. Two or three blows were received. The medical evidence is that they were probably of at least moderate force.

You told Patai Urera that you hit Beniamina hard. As a result a vertical artery was ruptured and/or dissected. It is an injury to which individuals with elevated blood alcohol concentrations seem especially vulnerable. Beniamina's blood alcohol concentration was at the time 0.16 per cent. The injury to the artery resulted in a traumatic subarachnoid haemorrhage. He was probably dead within minutes thereafter. Yet in other circumstances the same blows of the same force may have resulted in nothing more than bruising.

The bare facts are enough to illustrate the starkness of the tragedy. Many other considerations must be taken into account when determining an appropriate sentence. You were born in the Cook Islands on 26 September 1965. You are therefore about to commence the 39th year of your life. After a blameless life in your…

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 Makike

Details

AGLC: R v Makike [2003] VSC 340
Case: [2003] VSC 340
Decision Date: 26 August 2003

CaseChat Overview and Summary

In the case of R v Makike, the respondent was convicted of manslaughter following the death of his son, who sustained fatal injuries from blows to the head and neck. The case was heard in the Supreme Court of Victoria. The incident occurred when the respondent, influenced by alcohol, attempted to exercise parental authority, resulting in the death of his son who also had a significant blood alcohol concentration. The central legal issues for the court to determine included the appropriate sentencing for manslaughter, the impact of alcohol on both the offender and the victim, and the respondent’s display of remorse and lack of prior criminal history.

The court considered the nature of the injuries sustained by the victim, which were exacerbated by his elevated blood alcohol concentration, making him particularly vulnerable to such trauma. The court also evaluated the respondent's state of mind and his immediate and continuing remorse for the act. The sentencing judge acknowledged the exceptional circumstances of the case, including the absence of any prior convictions and the respondent's genuine remorse. Given these factors, the court determined that the sentence should reflect both the gravity of the offence and the mitigating circumstances.

After thorough consideration, the court sentenced the respondent to a total of three years' imprisonment, wholly suspended. This decision was based on the unique and tragic circumstances of the case, the respondent's remorse, and his otherwise clean criminal record. The court concluded that a wholly suspended sentence was appropriate under the particular facts and circumstances presented.

Orders