R v Polutele - [2011] VSC 381

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 63 of 2010

THE QUEEN

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…

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 Polutele

Details

AGLC: R v Polutele [2011] VSC 381
Case: [2011] VSC 381
Decision Date: 16 August 2011

CaseChat Overview and Summary

The appellant, Polutele, was convicted for manslaughter by unlawful and dangerous act and sentenced to imprisonment for assault on an individual outside a hotel. The victim was rendered unconscious by a punch from Polutele and subsequently kicked or stamped on the head by a co-offender. The co-offender entered a guilty plea. The High Court of Australia was tasked with determining the appropriate sentence for Polutele. The legal issues revolved around the relative culpability of the offenders, the need for general deterrence, and the principles guiding sentencing for manslaughter by unlawful and dangerous act, particularly when the offender acted in concert with others.

The court recognised the principle that the primary purpose of sentencing is to deter the offender from reoffending and others from committing similar crimes. The court also considered the relative culpability of Polutele, noting his youth and the fact that he acted in concert with others. The court found that while Polutele's culpability was significant, the co-offender's actions were more severe. The court held that the sentence should reflect the offender's culpability and the need for general deterrence. In doing so, the court recognised that the sentence should also consider the offender's age and the fact that he acted in concert with others.

The court concluded that the original sentence was too lenient, given the severity of the crime and the need for general deterrence. The court allowed the appeal and ordered a new sentencing hearing. The court emphasised that the new sentence should reflect the offender's culpability, the need for general deterrence, and the principles guiding sentencing for manslaughter by unlawful and dangerous act. The court did not provide specific guidance on the appropriate sentence but left it to the sentencing court to determine a suitable punishment based on the principles outlined in the judgment.

Orders