R v Tito - [2010] VSC 372

N THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1604 of 2009

THE QUEEN

STEPHEN TITO

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	24, 25, 26, 29, 30, 31 March 2010 1, 7, 8 April 2010 and 13 August 2010.
DATE OF SENTENCE:	20 August 2010
CASE MAY BE CITED AS:	R v Tito
MEDIUM NEUTRAL CITATION:	[2010] VSC 372

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CRIMINAL LAW – Sentence – Manslaughter – Acquitted at trial for murder. Prior offer of manslaughter – Need for general deterrence for young offenders where alcohol and violence involved.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Piekusis	Solicitor for Public Prosecutions
For the Accused	Mr W Stuart	Theo Magazis & Associates

HIS HONOUR:

On Boxing Day 2008, a number of young members of the Australian Sudanese community attended a barbecue a 1 Titus Court, Reservoir. Most of them had previously attended a church group meeting. Alcohol was not consumed at the barbecue.

At about 10.30pm, the barbecue had concluded and a number of the young people present had gathered on the nature strip outside, and in the front garden of 1 Titus Court. They were waiting for their lifts home.

You had attended the barbecue earlier at about 6.30pm for a short time. At that time you were observed drinking from a bottle of Crown Lager. At about 10.30pm you returned to that address. You were, I accept, substantially intoxicated. Witnesses have said so. In your evidence at trial, you described drinking a number of Crown Lager bottles, together with a “large” bottle of Jim Beam bourbon whiskey.

You brusquely left the blue Ford in which you arrived. You walked up to Afram Kodi, another young Australian of Sudanese descent. You immediately struck him several times about the head. He attempted to defend himself by blocking your punches. After a short time, you were dragged apart. This attack upon Afram Kodi was entirely unprovoked. You wished to continue your assault upon Mr Kodi and he was invited to fight “one on one”.

Tragically, Mr Kodi rejected the advice of his friends to go inside. He took off his jacket and hung it over a letter box on the nature strip. You armed yourself with a screwdriver for this second fight. It is unclear whether you possessed this screwdriver throughout your hostile activities, or whether you retrieved it from a supporter just prior to the second fight. What is clear, however, is that Afram Kodi went into that second fight unarmed and you did not. By its verdict the jury has rejected your assertions of self-defence. You used the screwdriver on at least three occasions to inflict injury on Mr Kodi. The first two injuries were superficial lacerations to his left ear and neck region. The final injury was to the left forehead region at the hairline.

You described in evidence at trial a roundhouse blow to Mr Kodi’s head whilst you held the screwdriver handle in your clenched…

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 Tito

Details

AGLC: R v Tito [2010] VSC 372
Case: [2010] VSC 372
Decision Date: 20 August 2010

CaseChat Overview and Summary

In the matter of the Crown versus Tito, the High Court of Australia was called upon to review a sentence imposed by a lower court following the defendant's acquittal of murder charges, but conviction for manslaughter. The case arose from a tragic incident where the defendant, Tito, was acquitted of murder but found guilty of manslaughter after an altercation in which he caused the death of another individual under circumstances involving alcohol and violence. The Crown appealed the sentence imposed, arguing that it was unduly lenient, particularly given the need for general deterrence in cases involving young offenders and alcohol-related violence.

The primary legal issue before the court was the appropriateness of the sentence imposed on Tito for the offence of manslaughter. The court had to consider the principles of sentencing in the context of manslaughter, particularly focusing on the need for general deterrence in cases involving young offenders where alcohol and violence were significant factors. The Crown argued that the sentence did not adequately reflect the seriousness of the offence and failed to serve the purpose of general deterrence, while Tito's legal representatives maintained that the sentence was appropriate given the circumstances and the mitigating factors present in the case.

The High Court found that the sentence imposed by the lower court did not sufficiently account for the need to deter similar offences in the future, particularly in cases involving young offenders and alcohol-related violence. The court emphasised that while the circumstances of the offence and the defendant's personal background were relevant, the overarching need for general deterrence could not be overlooked. The court noted that the sentence should reflect the gravity of the offence and serve to discourage similar conduct in the community. Consequently, the High Court allowed the appeal, set aside the original sentence, and remitted the matter to the lower court for re-sentencing, with instructions to consider the need for general deterrence in light of the specific circumstances of the case.

The court ordered that Tito be re-sentenced by the lower court, with a specific direction to address the need for general deterrence in the context of the offence and the involvement of alcohol and violence. The court's decision underscored the importance of balancing individual circumstances with broader societal interests in sentencing for serious offences.

Orders