R v Pota - [2007] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 207 of 2006

THE QUEEN
	v
TONGA POTA

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JUDGES:	MAXWELL P, BUCHANAN JA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 August 2007
DATE OF JUDGMENT:	17 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 198

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CRIMINAL LAW – Sentencing – Assault resulting in death of victim – Appellant acquitted of manslaughter and intentionally causing serious injury, and convicted of recklessly causing serious injury – Sentenced to 6 years’ imprisonment with non-parole period of 4 years – Whether appellant sentenced on basis consistent with jury verdicts – Relevance of death of victim – Whether excessive weight given to appellant’s three previous convictions for violence – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Patrick Dwyer & Associates

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Kaye AJA. I agree that the appeal should be dismissed, for the reasons which his Honour gives.

BUCHANAN JA:

For the reasons stated by Kaye AJA, I consider that the appeal should be dismissed.

KAYE AJA:

At about 11.00pm on 17 June 2004, the appellant participated in a violent incident at the Holmesglen Railway Station. In the course of that incident he struck Bruce Barnett, causing him to fall to the ground. Subsequently, as a consequence of head injuries sustained from that fall, Barnett died. The appellant was charged on presentment with the manslaughter of Barnett (Count 1), alternatively, intentionally causing serious injury to Barnett (Count 2), alternatively recklessly causing serious injury to Barnett (Count 3). At his trial, he was acquitted on the first two counts, and convicted by the jury on the third count. After hearing a plea on behalf of the appellant, the trial judge sentenced him to a term of imprisonment of six years, with a minimum non-parole period of four years. The appellant, by leave, appeals against that sentence.

During the evening on which the incident occurred, the appellant had been drinking alcohol with a number of his friends in the car park near the Holmesglen Railway Station. There they came to the attention of the police, who spoke to them. The appellant and his colleagues then left the car park. They walked on the roadway alongside the railway line past the station. Two persons were standing on the platform waiting for a train. One was Mr Barnett, and the other was Mr Tat Keung Kwan. Mr Barnett had also been drinking heavily, and was subsequently found to

have a blood alcohol content of .275%. Mr Barnett was disabled, and walked with the aid of a walking stick.

As the appellant and his friends walked along the roadway, they were making some noise. Barnett told them to “shut up”. A verbal exchange commenced between him and the appellant and his friends. As a result, three members…

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.

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Details

AGLC: R v Pota [2007] VSCA 198
Case: [2007] VSCA 198
Decision Date: 17 September 2007

CaseChat Overview and Summary

In the matter of R v Pota, the appellant, who was acquitted of manslaughter and intentionally causing serious injury, but convicted of recklessly causing serious injury, appealed against his sentence. The appellant was sentenced to six years' imprisonment with a non-parole period of four years. The case was heard in the Court of Appeal, which was tasked with determining whether the sentence was consistent with the jury verdicts and if any errors were made in the sentencing process.

The primary legal issue before the court was whether the trial judge had erred in imposing a sentence that was inconsistent with the jury's verdicts. The court also considered whether the trial judge had given excessive weight to the appellant's previous convictions for violence and if the sentence was manifestly excessive. The appellant argued that the death of the victim should not have been considered as a factor in the sentencing, given the acquittal on manslaughter charges.

The Court of Appeal found that the trial judge had not erred in considering the death of the victim in the sentencing process, as the offence of recklessly causing serious injury could result in death. The court also determined that the trial judge had not given excessive weight to the appellant's previous convictions for violence, as they were relevant in assessing the appellant's risk of reoffending. The court held that the sentence was not manifestly excessive, taking into account the appellant's criminal history and the circumstances of the offence.

The appeal was dismissed, and the original sentence was upheld. The Court of Appeal found that the trial judge had properly considered the relevant factors in determining the sentence and that the sentence was consistent with the jury verdicts. The court held that there was no error in the sentencing process, and the appellant's appeal was unsuccessful.

Orders