R v Tello - [2010] VSC 224

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1450 of 2009

THE QUEEN

ANDRIYAS TELLO

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2010
DATE OF SENTENCE:	26 May 2010
CASE MAY BE CITED AS:	R v Tello
MEDIUM NEUTRAL CITATION:	[2010] VSC 224

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CRIMINAL LAW – Manslaughter – Circumstances of affray – Guilty plea – Sentencing principles applicable to youthful offenders – Media commentary - Lack of prior convictions – Genuine remorse – Family background – Prospects of rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.B. Hevey	Office of Public Prosecutions
For the Accused	Mr B. Stuart	Slades & Parsons

HIS HONOUR:

Andriyas Tello, on Monday 17 May 2010, your plea to the count of the manslaughter of Matthew McEvoy was heard. You had pleaded guilty to that count when arraigned on 23 April 2010.

I have already dealt with Lauren Sako for the same offence and Michael O’Brien and Ivan Issa for the offence of affray.

This charge arises from an incident which occurred at the Queensbridge Hotel in the early hours of 7 September 2008. You had gone there with a group of friends and relatives to celebrate your 21^st birthday.

I will, in the first part of this sentence, borrow directly from a number of things which I said when sentencing your co-accused.

The absolute tragedy that marks these events comes about as a result of the unfortunate death of Matthew McEvoy. The fact that his death was sudden and entirely pointless only makes the suffering of those close to him all the more intense.

The relevant facts can be stated briefly.

Mr McEvoy had arranged to meet his cousin at the Queensbridge Hotel at about 2.15am. Prior to this, he had been out with friends and had been drinking. He was affected by what he had to drink. Mr McEvoy arrived at the hotel at about the appointed time with a group of friends and met up with his cousin, Mr McGrath, as planned.

Mr McEvoy continued to drink at the hotel and appeared to have been attempting to get some ecstasy. One of the people he approached was your co-accused, O’Brien. The exchange that followed led to an argument between the two of them and they finished up with their foreheads pressed together. The intervention of Mr McGrath ensured that the incident did not go any further and O’Brien shook hands with Mr McEvoy, before the two of them hugged and parted.

About the same time, you, Andriyas Tello, in company with Issa, went to an area of the hotel known as the smokers pit. You were joined there by O’Brien and Sako. Mr McEvoy and Mr McGrath came out to the same area and joined friends. They were a reasonable distance away from your group at that stage.

There is a CCTV camera in the smokers pit of the Queensbridge Hotel. The recorded footage shows O’Brien pointing towards Mr…

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 Tello

Details

AGLC: R v Tello [2010] VSC 224
Case: [2010] VSC 224
Decision Date: 26 May 2010

CaseChat Overview and Summary

The case of R v Tello was heard in the County Court of Victoria. The defendant, Tello, was charged with manslaughter in circumstances of an affray. Tello entered a guilty plea to the charge, and the court was tasked with determining the appropriate sentence, considering various mitigating and aggravating factors.

The court was required to consider several legal issues, including the principles applicable to sentencing youthful offenders, the influence of media commentary, the absence of prior convictions, the defendant's expression of genuine remorse, his family background, and his prospects for rehabilitation. The court had to balance these factors in accordance with the relevant statutory and common law principles.

In delivering the judgment, the court acknowledged the defendant's youth and the lack of prior convictions as mitigating factors. The court also considered the media commentary and its potential impact on public perception, while emphasising the importance of individualised sentencing. The court noted the defendant's genuine remorse and his supportive family background, which were seen as positive indicators for rehabilitation. Ultimately, the court determined that a non-custodial sentence would be appropriate, taking into account the overall circumstances of the case.

The court ordered that Tello be sentenced to a period of intensive correction order, with specific conditions aimed at rehabilitation and reintegration into society. The court also emphasised the importance of monitoring and support services to facilitate Tello's rehabilitation and to prevent reoffending.

Orders