R v Polutele
[2011] VSC 381
•16 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 63 of 2010
| THE QUEEN |
| v |
| JACOB POLUTELE |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 27- 29 April; 2 - 6, 9 - 13, 16 - 20, 23 - 25 May 2011; 2 August 2011 | |
DATE OF SENTENCE: | 16 August 2011 | |
CASE MAY BE CITED AS: | R v Polutele | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 381 | |
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CRIMINAL LAW – Sentence - Manslaughter by unlawful and dangerous act– Acting in concert – Relatively youthful offender – Assault outside hotel – Need for general deterrence – Punch rendering victim unconscious - Co-offender kicked or stomped on unconscious victim’s head – Co-offender guilty plea – Relative culpability of offenders
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C Ryan SC | Office of Public Prosecutions |
| For the Accused | Mr S Langslow | Revill and Papa |
HER HONOUR:
Jacob Polutele, on 25 May 2011 a jury found you guilty of the manslaughter of Cain Aguiar who died on 14 July 2009. There was a plea hearing on 2 August 2011 and I must now sentence you for that offence which carries a maximum penalty of 20 years’ imprisonment.
Cain Aguiar was 25 years old. He was born in Canada and had been living with relatives in the Yarraville area for only a month. He had come to Australia from his home in Canada with a view to starting a new life here. He was an Australian citizen, through his mother, and also held American citizenship through his father.
Circumstances of offence
On the night of 9 July 2009 from about 6.30 pm, you had been drinking beer and playing poker at the Victoria Hotel on Hyde Street, Yarraville with a group of young men. You had shared a number of jugs of beer. The group, which included your friends Sioeli Seau and Fostar Akoteu, walked to the nearby Blarney Stone Irish Pub at about 11 pm. You had more to drink.
Cain Aguiar was at the Blarney Stone. There he had been talking to Katherine Nguyen, a young woman who had arranged to meet Fostar Akoteu at that hotel. Cain Aguiar had only met Ms Nguyen that evening by chance and did not know Fostar Akoteu or you beforehand.
Katherine Nguyen and Fostar Akoteu discussed Cain Aguiar. Fostar Akoteu became jealous and angry and told Ms Nguyen that he would assault Mr Aguiar. He later informed Sioeli Seau of his plan. Mr Seau promised his support. I am not, however, satisfied that you knew about Fostar Akoteu’s intention before you left the hotel.
At closing time, Cain Aguiar left the hotel. There were many people standing around outside the hotel in Anderson Street. Some of them later gave slightly differing accounts of the events which occurred there. I am however satisfied of the following facts.
Sioeli Seau started the assault on Cain Aguiar by hitting or trying to hit him. Fostar Akoteu then either hit Mr Aguiar’s head with a bottle or glass or threw one at him. You joined in the attack. You later told police that you became involved because your two friends could not get Cain Aguiar down. I am not satisfied that you struck him at that point, as you told police. There were, nevertheless, then three of you who appeared to be attacking the one man.
Courageously, first Mr Ray Thompson, the hotel security officer, and then a bystander, Mr Ricky Stanbury, placed themselves between the three of you and Cain Aguiar. They tried to shield him from your blows and to ward you off. They pushed him backwards down Anderson Street.
You and Mr Akoteu were heavy young men; you claimed that you weighed about 120 kg and were about 170cm tall. Mr Akoteu was a little shorter than you. Mr Aguiar weighed only 84 kg and was about 186 cm tall.
You moved away from the group and, getting past Mr Thompson and Mr Stanbury, you ran back from the side to strike Cain Aguiar very hard to the left side of his face. He fell striking his head on the kerb with what witnesses described as an audible sickening thud. You punched Mr Aguiar whilst his attention was focused on Fostar Akoteu who was still assaulting him from the front. You did nothing to alert him to your approach, so that he could try to defend himself. He did not give any indication of having seen you coming. In that cowardly way, you delivered a punch of such force that it rendered him unconscious, either before or after his head struck the kerb. He did not attempt to break his own fall.
Once he was on the ground, lying defenceless with his head on the gutter, Mr Akoteu kicked or stomped on his head. Mr Akoteu also taunted him, saying, ‘welcome to Australia bitch’ or words to that effect.
After delivering your punch, you did not stay to attend to Mr Aguiar and walked away to the Yarraville station further down Anderson Street. You later told police that you had left to ’get out of trouble’. You were undergoing a suspended sentence at the time. I will return to that sentence shortly.
Fostar Akoteu stayed walking around in Anderson Street in an agitated and excited manner indicating his general intention to fight anyone. He then followed you to the station where Stephen Zappia picked up the two of you and Sioeli Seau. Stephen Zappia took you in his van to Crown Casino. On the way, you asked Mr Zappia, ‘Do you like that Steve, one hit, KO?’
Mr Aguiar suffered serious head injuries. On arrival at the Royal Melbourne Hospital, he had cerebral fluid draining from one of his ears, bilateral temporal, subdural and subarachnoid haemorrhage, a fractured left cheekbone and a fractured skull from the right top side of the head into the base of the skull. His brain was bruised, with swelling and bleeding and areas of death. The bleeding led to a craniotomy operation. Mr Aguiar’s condition deteriorated and he died within about 48 hours, on 14 July 2009. On that day, his parents, who had rushed to Australia from Canada, were forced to make the agonising decision to withdraw the treatment maintaining the life of their son.
You were interviewed by police on the day after Mr Aguiar died. You told them that you punched him to the ground twice at an early stage of the assault. You later maintained throughout that you did not deliver the blow which rendered him unconscious. It is clear from the jury’s verdict, however, that it concluded that it was you who punched Mr Aguiar, knocking him out before Fostar Akoteu moved in to kick or stomp on his head.
Acting in concert
I am not satisfied that you knew about Fostar Akoteu’s intention to beat Mr Aguiar up, but I find that you did reach an understanding or agreement (even if it was on the spur of the moment) to join with him and Sieoli Seau in assaulting your victim outside the hotel.
The prosecution case was that you acted in concert with Fostar Akoteu to commit the crime of manslaughter. The jury’s finding of guilt means that you are responsible for the unlawful and dangerous act or acts of assault which resulted in his death, whether they were performed by you or Mr Akoteu. The forensic pathologist, Professor Stephen Cordner, gave evidence in your trial. I note in this regard his evidence that your blow and its consequences and Fostar Akoteu’s stomping or kicking action were each possible causes of Mr Aguiar’s skull fracture.
As senior counsel for the prosecution pointed out, you had no motive to attack Mr Aguiar outside the Blarney Stone Hotel. You simply joined in to assist your friends in their alcohol fuelled unprovoked assault on an innocent man.
Victim impact statements
Members of Cain Aguiar’s family have expressed their grief in powerful and poignant witness impact statements. They have described the lasting devastating effects on the whole family of the loss of their beloved son, grandson, brother, cousin and nephew. They have paid tribute to Mr Aguiar as a fine, intelligent, talented, vibrant young man with everything to live for whose absence and tragic death haunts them daily. He was far from his Canadian home when he was killed. There is additional pain for those who were caring for him here and for his immediate family as a result. Finally, his parents were forced to make the terrible decision to turn off the equipment which was keeping him alive because he was so badly injured in the assault.
I have read the statements from Cain Aguiar’s mother, Issy Aguiar, his grandmother, Beverley Juriansz, his aunts, Simone Chong and Kathleen Nolan, and his uncle Clyde Juriansz. Ms Aguiar and Mr Juriansz read their moving accounts aloud during the plea hearing. Nothing can compensate them for their great loss. I take what they have said into account when sentencing you.
Prior criminal history
It is significant that you committed this offence whilst undergoing a sentence of two months’ imprisonment, suspended for 12 months, imposed by the Sunshine Magistrates’ Court on 17 September 2008. That sentence was for offences of recklessly causing serious injury, failure to answer bail and breach of a community based order. The community based order had been made in the Melbourne Magistrates’ Court on 5 December 2007 for the original offences of recklessly causing serious injury and failing to answer bail.
Your prior offence of recklessly causing serious injury was committed on 25 February 2006. The circumstances were not dissimilar to those in relation to which I am sentencing you today. You were 19 years old. You were intoxicated. You had left a city nightclub in Queen Street at about 5.15am. One of your companions was arguing with three men and taunting them. You punched one of those men in the face, causing him to fall unconscious on to the road.
Personal circumstances
You are now 24 years old. You were born in Sydney on 21 August 1986 and your family later moved to Melbourne. You are of Tongan origin. You had a caring and supportive family environment as the third of five. The clinical psychologist, Mr Healey, reports that your parents are not subject to substance abuse and your father works on construction sites erecting temporary fencing. Your mother supported you in Court throughout your trial, as did other family members from time to time. One of your brothers and your two sisters are employed and your 17 year old younger brother is still studying.
You left Footscray City Secondary College part way through year 10. You completed that year’s studies in Sydney after your parents persuaded you to go back to school. You then left school without completing your year 11 studies. Work as a labourer followed. You worked in a meatworks and gave your share of your earnings to your family. You have told Mr Healey that the effects of alcohol meant that you didn’t turn up to work on time and that you were unemployed for 6 months before you were remanded in custody for this offence.
Your elder sister, Marianne Polutele, and Reverend Iki Katoanga from the Church of Tonga gave evidence on your behalf in the plea. Reverend Katoanga says that you are an honest young man with integrity, willing to help others by doing voluntary work. You have been a regular attendee at the Church of Tonga services which are held on Sunday afternoons. He was not aware of your abuse of alcohol or drugs and it would appear that you have not tried to get the help he says would be available to you from the Church. Your sister, Marianne Polutele, spoke of you as an honest, generous and caring brother. She said you are, however, a follower and able to be manipulated.
Mr Healey found you had no major signs of cerebral dysfunction and were of average intellectual capacity. He reported that you did show some classical symptoms of alcoholism including ‘conflict with others while drinking’.
You have no health problems, apart from those associated with substance abuse which started with cannabis and alcohol at 15 and progressed to amphetamines and ecstasy. Alcohol and drug use has led to you to lose interest in your previous pastimes of playing sport. You have formed no meaningful relationship with a member of the opposite sex.
Mr Healey did not diagnose any relevant mental illness or condition with a causal connection with your offending. He concluded that:
Specific testing revealed average intellectual capacity and, whilst powers for delayed recall were reasonably sound, initial acquisition was reduced. The alcoholism screening test revealed some classical symptoms, and personality testing was indicative of vulnerability to substance abuse and a hypomanic trend.
You agreed with Mr Healey that abuse of alcohol is your major substance abuse issue to be addressed when you return home to live in the community. You may have been drinking on the night of the assault, but that that is no excuse for your offending.
The fact that you recognise your problems with alcohol in particular and are willing to confront them with the support of your family is a positive sign in relation to your prospects of rehabilitation. As counsel pointed out, you also have now had time to reflect on your past behaviour and to mature somewhat whilst in custody.
Sentencing considerations
You are responsible for the death of an innocent young man. You became involved in the assault upon him for no other reason than to assist your friends in their unprovoked attack. It is said on your behalf that this should be understood as a case of misguided loyalty, but I do not consider that a mitigating factor in your favour. You and your two friends brutally attacked an innocent young man who posed no threat to you or to them.
At nearly 25 years old, you are still relatively young and your rehabilitation is important.[1] But, as Whelan J said when sentencing Fostar Akoteu, drug and alcohol fuelled violence by young men is a serious social problem and the community expects a stern response to it.[2] You and other young men must be deterred from such behaviour and general deterrence is a significant sentencing consideration.[3]
[1]See R v Mills [1984] 4 VR 235;.
[2]DPP v Akoteu [2010] VSC 364 [30].
[3]R v Ung [2002] VSCA 101.
As far as your prospects of rehabilitation are concerned, as counsel said, it is significant that you have recognised your problems relating to alcohol and substance abuse and are prepared to address them. He pointed out that your offending has occurred when you were intoxicated. You have undertaken courses in prison relating to drug and alcohol abuse and anger management and the like.
You had been previously convicted for recklessly causing serious injury by knocking a man out and you were still serving a suspended sentence of imprisonment for that crime but that did not deter you from offending. Indeed, you seemed proud of having rendered Mr Aguiar unconscious with one punch. Once again, you had become involved in a serious assault for no better reason than to assist your companions. You later demonstrated your callous disregard for Cain Aguiar’s well being and for the law by boasting about your act to Stephen Zappia. There is a need for specific deterrence in your case.
You told police that you had struck Cain Aguiar twice, but afterwards maintained that you did not knock him out. You have said that you are very sorry for what happened to him and for his family and I take that into account. You were entitled to assert your innocence of the crime of manslaughter, but it follows that you do not get the benefit of showing any remorse in relation to that crime.
Fostar Akoteu was sentenced to 10 years’ imprisonment with a 7 year minimum term. He pleaded guilty to his part in the assault. He was 22 on 9 July 2009 and so were you. The learned sentencing judge stated that he would have sentenced Fostar Akoteu to 13 years imprisonment with an 11 year minimum term, but for his guilty plea.
Sioeli Seau pleaded guilty to having assaulted Mr Aguiar and was sentenced to 18 months’ imprisonment with a twelve month minimum term on the basis of him striking or attempting to strike Cain Aguiar. His offence is of quite a different character from yours. The maximum penalty for assault is five years’ imprisonment and the learned sentencing judge indicated that he would have imposed a two year term with a minimum of one year’s imprisonment but for the guilty plea made by 20 year old Mr Seau. Mr Seau was 19 when he offended.
Counsel argued on your behalf that your actions were not of the same level of criminality as those of Fostar Akoteu. Senior counsel for the prosecution responded that there was not a great difference in criminality, as both assaults involved injury to Cain Aguiar when he was not in a position to defend himself. You attacked when his attention was focussed on others and Fostar Akoteu attacked him when he was unconscious. I am satisfied that, coming in from the side, you deliberately punched a man who was not directly facing you or apparently aware of your approach.
You and Fostar Akoteu are each to be treated as having intended that Cain Aguiar should be subjected to an unlawful and dangerous act or acts of assault which did lead to his death, even though you did not have the necessary intent for the crime of murder. I must have regard to the need for parity in sentencing you.
I do, however, regard you as less culpable than Fostar Akoteu because of the nature of your participation in the crime. Fostar Akoteu assaulted a prone unconscious man and made vicious and repugnant racist taunts afterwards. Unlike you too, he had planned the assault motivated by jealousy. (I note that these were amongst the distinguishing factors which Whelan J considered made the circumstances of Fostar Akoteu’s offending more serious than those in the cases of DPPv Sako [4] and R v Tello[5] which had been referred to him.[6])
[4]DPP v Sako & Ors [2010] VSC 223.
[5]R v Tello [2010] VSC 224.
[6]DPP v Akoteu [2010] VSC 364 [32].
On the other hand, unlike Mr Akoteu, you offended ten months after you had been given a 12 month suspended sentence of two months’ imprisonment in relation to similar behaviour which had led to your conviction for recklessly causing serious injury.
Counsel on your behalf sought to explain and excuse your behaviour on the grounds of some natural human response to join in group actions out of a sense of loyalty. He cited the way young men behave on the football field and elsewhere. I do not regard this as a mitigating factor. Such behaviour is unacceptable. It represents exactly the sort of unthinking or misguided reaction which must be denounced and from which you and others must be deterred for the safety of the community. You acknowledged to police that Cain Aguiar was not a threat to your two friends and this was the second time when you, as a member of a group, had joined in an assault initiated by someone else.
Sentence
In all the circumstances, balancing as best I can all the matters to which I have referred, I conclude that you should be sentenced to 10 years’ imprisonment with a minimum non parole period of 7 years.
You have been detained for 763 days including today which should be reckoned under s 18(4) of the Sentencing Act 1991 as time served under the sentence I impose this day and noted in the records of the Court.
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