R v Piliu - [2009] VSC 632

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1504 of 2009

THE QUEEN

ITA PILIU

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	2, 11 December 2009
DATE OF SENTENCE:	17 December 2009
CASE MAY BE CITED AS:	R v Piliu
MEDIUM NEUTRAL CITATION:	[2009] VSC 632

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Manslaughter.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC	OPP
For the Accused	Mr A.D. Trood	Victoria Legal Aid

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HER HONOUR:

Ita Piliu, you have pleaded guilty to one count of manslaughter of Pulonga He Hau Taimovai at Nyah West on 7 November 2008. You were arraigned and pleaded guilty to that offence in September of 2009 and your plea was heard on 2 December 2009 at Bendigo and then adjourned, at the request of your counsel, to Melbourne on 11 December 2009, at which stage it was completed.
You are aged 59, having been born on 4 July 1950 and you are a fruit picker by occupation.
Prior to being remanded in custody you resided with your wife in Chirnside Avenue, Werribee, with your two children.
You have only one prior court appearance and that was in the County Court at Melbourne on 26 November 1999, when you were convicted of two counts of incest and two counts of committing an indecent act with or in the presence of a child under 16. You were sentenced to nine months' imprisonment on Count 1, six months on Counts 2 and 3 and four months' imprisonment on Count 4. All of these sentences, with the exception of one month of Count 4, were directed to be served cumulatively upon each other, resulting in an effective sentence of two years' imprisonment, with a non-parole period of nine months.
The circumstances relating to this offence were, that you and the deceased man were both working as fruit pickers in Nyah West. You were engaged as pickers at a nearby almond farm and you and a number of other men of Tongan extraction, including the deceased, were residing at a rented property and you used a van to go from the rented property to the almond picking premises.
The deceased man was 42 years of age. He was born in Tonga and had lived in Australia for 14 years at the time of his death.
On Friday 7 November 2008 there appeared to have been some problems in respect of picking, due, as I understood it, to some rain, so some of the members of the household were able to do some picking and others were not. By about 3 p.m. on that afternoon, you and the deceased were drinking with a number of other fellow pickers at your house in Nyah West. Those present included Kepueli Piliu, your cousin, and Tevita Taumoebenu. The drinking, as I indicated, seemed to commence at about 3 p.m. that afternoon, although there were significant differences in time estimates in the statements of the witnesses.
There were also different descriptions of the amount of alcohol consumed, but it does not appear to be in dispute that there was a substantial quantity of alcohol consumed.
It is not possible to ascertain with any certainty how much alcohol you had consumed yourself on that day as there was no testing done by the police, despite the opportunity to do so, and there were no recorded observations as to your state of intoxication, even though you presented yourself to the police very shortly after this incident occurred.
There are, however, a number of indicators in the evidence as to the consumption of large quantities of alcohol, which include the fact that the deceased man's postmortem results demonstrated that he had a blood alcohol reading of .30. There was also the statement of Mohetau Faasee, at page 12 of the depositions, wherein he stated in paragraphs 7 and 8 "about two boxes of VB beer", meaning slabs of beer, "and a cask of wine" being purchased that day. He also referred to the fact that two hours later there were only about five cans and a cask of wine left. There are references to the consumption of vodka, without any indications as to who exactly was consuming the vodka. There is also the statement of Leading Senior Constable Hall on page 84 at paragraph 13, where he observed one of the persons who had been residing at the premises in a state of considerable intoxication on his arrival at the police station, that being Kepueli Piliu, your cousin.
The Crown do not dispute that alcohol was involved to a large degree and that the consumption of alcohol included your consumption of alcohol.
By about 7 p.m. the alcohol had started to become in short supply and you and your cousin, Kepueli Piliu, tried to obtain the keys to the van, which were kept at the premises, so that you could drive into town and buy more alcohol. The deceased man, who was in charge of the keys to the van, refused this request, saying that everyone had had enough to drink for the day. An argument commenced between the three of you and you walked around the back of the van, which was parked near the front of the shed, where everyone had been drinking. Tevita Taumobenu heard you offering to fight the deceased man. A physical fight did break out, but that was between the deceased man and Kepueli Piliu, and that consisted of little more than pushing and shoving, and appeared to go for just a few minutes.
You were observed, during this time, to move quickly along the driver's side of the van and reach into the pocket of your jacket, pulling out a large black handled knife. By the time you reached the deceased and your cousin, who were fighting, the fighting had stopped and the men had separated. You walked straight up to the deceased and stabbed him once, to the left upper chest, near the armpit. Nothing was said at the time that you did this. You withdrew the knife and the deceased man fell to the ground. You were then restrained by Tevita Taumobenu and Kepueli Piliu. The knife fell to the ground, it was picked up by Taumobenu and placed into the van. Taumobenu and another man put the deceased into the van, on the floor, on his back.
Four of you, being Taumobenu, you, your cousin Kepueli Piliu and another man, drove towards Nyah, intending to take the deceased man to hospital. The hospital was closed and you all drove on to the Nyah police station. During that trip to the Nyah police station, Taumobenu told you that the knife was actually in the van and you asked him to get rid of the knife, but he refused to do so.
Upon arrival at the Nyah police station an ambulance was called and when it arrived the deceased man was examined and found to be dead. The knife was located in a van, with obvious bloodstains.
You were taken to Swan Hill police station for initial interview and then to the Homicide Squad offices. It would appear that during the time you were held in custody, before being interviewed, the major focus was on obtaining the services of a Tongan interpreter, which is an exceedingly difficult thing to do, as there are very few Tongan interpreters in Victoria. Despite having lived in Australia for 30 years, your English is very poor. No-one, be it the local police or the Homicide Squad officers, appeared to concentrate in any way upon your state of sobriety, as I indicated earlier.
You were finally interviewed, on 9 November 2008 at 11.15 a.m. In that interview, you denied any involvement at all in the stabbing of the deceased, or any knowledge of how it occurred. You gave a detailed account of your movements and observations that you made during the incident, which included the fact that you were inside when the stabbing occurred. You stated you had never seen the knife and you denied asking anyone to dispose of the knife.
On postmortem examination of the deceased it was found that there was one stab wound to the upper left chest and the wound was about 40 mm in length. The blade had penetrated the left lung and the left ventricle of the heart, causing serious damage. One of the major coronary arteries had also been severed, as a result of this one blow. As indicated earlier, the deceased had a blood alcohol concentration of .3.
The Crown has presented you and accepted the plea on the basis that in this case the manslaughter was caused by an unlawful and dangerous act, that is, the possession of the knife and the using of the knife to stab the deceased man on this day.
You were arrested on that day and have been in custody up to and including today.
There are no victim impact statements in relation to the death of Pulonga He Hau Taimovai.
You were originally charged with one count of murder and the matter was set down for a contested committal in September. On the first day of the committal an offer was made by you to plead guilty to one count of manslaughter. That was accepted by the Crown and the matter proceeded as a straight hand-up brief and you entered your plea of guilty at the Magistrates' Court. It is accordingly accepted that you entered a plea of guilty at an early stage.
You were born in Tonga and came to Australia in 1973, aged about 23. You completed your schooling in Tonga, achieving the equivalent of an intermediate level of education, at approximately 15.
You came to Australia looking for work opportunities, as there were limited opportunities in Tonga.
In 1990 you married your current wife, who is also Tongan. You knew her in Tonga, but you met her again whilst in Australia. You married and you have had two children. She is currently aged 58, not working at the moment, but has worked in the past, as a part-time primary school teacher. She does not drink alcohol and has never been in any trouble with the law. Your wife does not drive and she lives in the family home in Werribee.
You have a 19-year old son who is doing a TAFE course and he has been a regular visitor whilst you have been in custody. You also have a 14-year old daughter. She has not been to visit you in custody. It has been stated that, because you have a prior conviction for a sex offence, it would not be possible for a minor to come and visit you in prison. I admit I find that difficult to understand as she is the minor with whom you have been living, but, irrespective of that, your daughter would not be coming to visit you under any conditions.
It was initially put to me that you had support from your wife and children, but that your wife was not visiting you, due to you wishing her not to see you, in that particular position. After the adjournment counsel indicated to the court that in fact your wife does not support you at this stage. She is not willing to visit you and she is not willing to allow your daughter to visit you in prison. She indicated that she is in a state of indecision about whether you can remain any part of this family upon your release. Your son positively does support you and I accept that.
There was also evidence from a Tongan Minister, Feke Kamitoni. He is a Minister of the Uniting Church at the Balwyn Road, Canterbury, congregation. He knows you from your secondary school days in Tonga, but he also renewed your acquaintance in 1988, when you became part of the Tongan Christian Fellowship Group in Kew, which you attended for about two and a half to three years. You then left that group, but only to join another church, being a Tongan church in Sunshine, which is where your wife had attended over a number of years.
After your arrest a meeting was held of the Ministers involved with the Tongan community, approximately 20 in number, and it was determined that the Ministers would encourage people to visit you and to visit your family to pray and attend, to provide support to you in prison. He gave evidence that the Ministers who had been visiting you are Mr Holani, from the Uniting Ministry in Geelong, and Mr Ekatorama. You have had their current support and it is clear that you will have their ongoing support in terms of whilst you are in prison and when you are ultimately released from prison. They also intend to continue to support your family.
You were employed for a lengthy time by a company called ARC Steel as a machine operator, your main occupation being cutting steel for that company.
You were involved in an industrial accident in about 1990/1991, where you badly injured your knee when you fell. That fall occurred in conjunction with you lifting some steel and your injury required a full knee reconstruction. You returned after a period of time on light duties, but ultimately you were placed on a disability pension for a number of years and you were on that pension for a number of years, prior to November of 2007.
The opportunity then came to do some casual fruit picking and you, with some other Tongan people, would go fruit picking, staying away for a fortnight or so at a time, sometimes longer, sometimes shorter, depending upon the amount of work in the area, to do your fruit picking, and when that would cease you would return home to your family. You would sometimes return home on weekends, other times you would stay there. You sent money home to your family to assist in their support.
You had found it difficult to find any other form of employment after you had been placed on a disability pension as a result of your industrial accident. It would appear that the premises in which you resided during your picking time were premises located some distance out of town and the only house on the property. Unfortunately, consumption of alcohol became a significant feature of the lifestyle of a number of men living together in that situation.
That is really all of the information that has been presented to me about your life, apart from some material relating to the offence for which you received a previous custodial sentence. Once again, the details supplied to me were exceedingly limited. The victim of those offences was apparently your wife's daughter from a previous relationship. She had been living in Tonga and when she was about 13 or 14, she came to live at your home. The incest related to two counts of digital penetration and the indecent acts were touching on the outside of the young girl's vagina and touching on the breast, at a time when you would have been in a position of trust. Your counsel was unable to tell me what happened to the girl after that, except that she did not continue to live in the household. It is believed she currently resides in Australia, but I have no knowledge of whether she went to Tonga and then returned to Australia, or what in fact occurred.
With the very limited information that has been provided to me, I note that there are things in your favour. Firstly, your plea of guilty and the early stage at which it was made; secondly, that this was clearly a spontaneous unplanned killing; thirdly, that there had been no animosity previously between yourself and the deceased man and you were described as friends.
Further, there is your age, in that you have reached the age of 58 without being a person with a significant violent history. Your prior criminal offence, whilst an appalling offence, is not one of a like kind, demonstrating a propensity of violence towards others.
I am prepared to accept that you were significantly affected by alcohol on this day which does not, of course, excuse your actions in any way. It might, however, explain to a degree why a person without a background of violence, such as you, has committed an inexplicable violent offence, in relation to an argument over virtually nothing, particularly with a man who was described as a friend.
What must be remembered, however, is that a man lost his life. Even though there were no victim impact statements, this is a man who will be grieved somewhere in this world. Every human being and every life is worthwhile and must be valued, not only by the courts and the community, but by the persons involved in the crime that takes their life.
There is certainly a part to be played in respect of general and specific deterrence. I do believe that you have reasonably good prospects of rehabilitation in the future, with your lack of prior convictions, your support from your son and from the church with whom you are involved. It gives me some hope that you may be able to control the consumption of alcohol, which appeared to be a major factor leading to your commission of this offence. You would benefit from obtaining assistance for that problem, whilst you are incarcerated.
In balancing all of those factors, as I must, together with the other relevant considerations, I have determined that the appropriate sentence in respect of the one count of manslaughter is that you are to be imprisoned for a period of 9 years.
I direct that you are to serve a minimum of 6 years and six months before becoming eligible for parole.
Pursuant to s.6AAA I indicate that but for your plea of guilty the sentence imposed would have been one of 11 years with a minimum of eight years.
I declare that the amount of time spent in pre-sentence detention is 405 days not including today and I make the other ancillary orders that were sought which are retention and disposal.

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CERTIFICATE

I certify that this and the 8 preceding pages are a true copy of the reasons for the
Sentence of King J of the Supreme Court of Victoria delivered on 17 December 2009.
DATED this 17th day of December 2009.

Associate to Justice King