R v Tofilau
[2004] VSC 13
•22 January 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1440 of 2002
| THE QUEEN |
| v |
| LEMALUOFUIFATU ALIPAPA TOFILAU |
---
JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22-26, 29-30 September, 1-3, 6-10, 13-16 October 2003, 19 January 2004 | |
DATE OF SENTENCE: | 22 January 2004 | |
CASE MAY BE CITED AS: | R v Tofilau | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 13 | |
---
Murder – sentence.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr I. Hayden | Victoria Legal Aid |
HIS HONOUR:
Alipapa Tofilau, you have been found guilty by a jury of the murder of Belinda Romeo at Prahran on Sunday 20 June 1999.
During the weeks prior to the day in question you had enjoyed a friendship and sexual relationship with Ms Romeo. Indeed it is your evidence that you stayed at her flat on the preceding Monday, Tuesday, Wednesday, Thursday and Friday nights.
Whether this be the fact or not I accept that the relationship had been a relatively close one for a period of time, but from Ms Romeo's point of view had become one that she desired to bring to an end. I also note that it was not a relationship which either party appears to have treated as involving an exclusive commitment.
On the Saturday morning of 19 June you travelled from Ms Romeo's flat in Prahran to Box Hill in order to play rugby. After the game you celebrated winning by drinking first at Box Hill and then at the Northcote Rugby Club.
During the course of the evening you made phone calls to the deceased and it is your evidence that it was agreed you would see her at the Bridge Club Hotel.
In any event, when you arrived at the Bridge Club towards midnight the deceased was already present with a girlfriend. The deceased had spent that afternoon with another man at her flat but had left him sleeping while she went out for some hours.
During the course of the evening at the hotel the deceased and another young woman, with whom you were also at that time conducting an active sexual relationship, jointly approached, confronted, and then turned away from you. You continued socialising with other acquaintances.
The deceased left the Bridge Club some time later and went home to the other man who was still at her flat. You stayed at the Bridge Club until it closed at approximately 7.00 am You then went on to a souvlaki shop in Bridge Road and then travelled via Carlton and Footscray to St Albans.
At St Albans you drank with two other men in a garage at a friend's house. You had purchased Bourbon and Coke for this purpose.
In the late afternoon you were given a lift to the corner of Punt and Commercial Roads, Prahran. You then rang Ms Romeo from a phone box outside a milk bar and obtained access to her flat.
Shortly thereafter you killed her by strangling her violently with her scarf. I am satisfied you did so in a state of substantial anger. You were, as you told covert police at one point, “really angry”.
It is not clear from the evidence precisely what triggered this attack, but I am satisfied on the balance of probabilities that underlying the attack was firstly some expression of rejection of you by Ms Romeo, and secondly a refusal on your part to accept her attitude towards you.
The photographic and medical evidence demonstrates that the strangulation which you then inflicted was undoubtedly violent.
After you had strangled Ms Romeo you changed her clothes and took the scarf used as a murder weapon and hid it in an abandoned car nearby. You then went on with your life as if nothing had happened.
You denied all knowledge of your victim's death to investigating police, and it was not until circumstances in which it appeared to be to your potential advantage to do so that you made confessional statements to persons whom you believed were involved in organised crime.
Ms Romeo was born on 22 July 1974 and at the date of her death was only 24 years of age. She had suffered some intellectual impairment prior to birth when her mother contracted rubella, but she had lived an independent and gregarious life. Both the circumstantial evidence and your statements to covert police confirm that she had no chance to defend herself when you attacked her.
At the time of Ms Romeo's death, it is clear that you had consumed alcohol at various places over the previous 24 hours and in addition had not slept for more than a day. It is likely that your emotional stability was to some extent affected by these matters. On the other hand, your actions after the killing demonstrate that you were in full control of yourself and witnesses who saw you both shortly before and shortly after the killing do not describe you as being apparently affected by alcohol. You yourself did not assert in evidence that you were materially affected by alcohol at the time in issue.
It is not open to me to find consistently with the verdict of the jury that Ms Romeo's death was a tragic accident. Moreover in any event I am satisfied on the basis of the circumstantial evidence and your admissions to covert police that the jury was entirely justified in concluding that you killed Ms Romeo both deliberately and intentionally.
In forming the above conclusions as to the circumstances of the offence, I have had regard to the principles stated by the High Court in R v Cheung[1] and R v Olbrich[2]. In the latter case, the High Court adopted what was said by the majority of the Victorian Court of Appeal in R v Storey:
"A Judge when sentencing may not take facts into account in a way adverse to the interests of the offender unless those facts have been established beyond reasonable doubt, but if there are circumstances which the Judge proposes to take into account in favour of the offender, it is enough if these circumstances are proved on the balance of probabilities." [3]
[1](2001) 209 CLR 1
[2](1999) 199 CLR 270
[3][1998] 1 VR 359 at 369
The following mitigating circumstances can be identified in respect of your crime as in some way explaining your behaviour or lessening your moral culpability.
First, there is no evidence that you went to Ms Romeo's flat with the premeditated purpose of killing or causing really serious injury to Ms Romeo.
Second, I accept on the balance of probabilities that at the time of the killing you were motivated by anger at the breakdown of your relationship with Ms Romeo and although such a reaction cannot in any way be condoned, it is probable this circumstance triggered an irrational and violent emotional response.
Third, I accept on the balance of probabilities that you were to some extent affected by consumption of alcohol and lack of sleep over the preceding 24 hours and this may have rendered you more prone to an irrational and violent reaction.
As against these matters, it must be said that this case is one of a strong and fit young male using brutality and violence towards a woman of lesser physical strength in circumstances where the woman became a defenceless victim.
The victim impact statements in the present case spell out the consequential suffering which you have caused to Ms Romeo's family as a result of her death. The role of victim impact statements was described by Vincent J in R v Beckett as follows:
"They constitute a reminder of what might be described as the human impact of the crime. They draw to the attention of the Judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it."[4]
[4][1998] VSC 219 (unreported, 20 August 1998)
Although she had moved away from home Ms Romeo enjoyed a close and loving relationship with her family and in turn her death has caused them great emotional pain. The victim impact statements are most moving and impressive documents which amplify the personal suffering you have inflicted upon them.
You have shown no remorse for the murder of Ms Romeo. You are of course not to be penalised for contesting your trial, but the sworn evidence that you gave at the trial demonstrated a total lack of acceptance of responsibility for your actions. Not only did you deny any responsibility for the killing, but you asserted on oath that you were a good, honest and religious man. I reject each of these assertions.
Prior to your arrest, you expressed some regret at the death of Ms Romeo to covert police operatives who you believed to be members of a criminal gang, but such expressions demonstrated no real acceptance of responsibility for what you have done. In essence, you stated to both covert operative Pat and covert operative Mark that you felt sorry after you had killed Ms Romeo. You have however since the murder engaged in a continuing strategy of self preservation. Moreover you still continue to deny responsibility for murder to the court and show no apparent insight into the consequences of your actions.
In relation to the question of remorse, I note what was said by Buchanan AJ in R v. Asad:
"It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender in his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related".[5]
[5][2003] VSCA 3
In my view it must be brought home to you that you cannot escape responsibility for criminal behaviour of the utmost violence.
I turn now to your personal circumstances. You are aged 32, having been born on 26 February 1971 in Samoa. You are the youngest of 13 surviving children and attended a church school until Year 10. In 1989 you came to Australia and lived in turn with the families of two of your cousins. You have maintained a continuing relationship with your extended family, both directly through social contact with your cousins' families and indirectly by way of sending money back to your mother in Samoa. In addition, you returned to Samoa for your father's funeral.
You have worked in a series of unskilled jobs since leaving school and, after some initial difficulty, you have maintained ongoing employment. At the time of your arrest you were working two jobs, and I accept that you have applied yourself to earning a living in a steady and consistent manner.
In turn you have forwarded money to your family in Samoa on an ongoing basis. You have obtained permanent resident status in Australia. In the mid-1990s you fathered a child in a relationship with a woman called Tina, but no ongoing contact has been maintained between you and this child or its mother. You have no prior convictions.
In addition, evidence was called on your behalf as to your relationship with your extended family, with members of your rugby club, and with members of the church with which you were actively involved up until the mid-1990s. I accept that to those whom you regard as being on your side you have been a reliable, honest, loyal and trustworthy individual. Indeed the evidence at the trial was that you understood and in turn demonstrated these very qualities to the covert police who established a relationship with you as a precursor to obtaining confessional statements.
It must be observed, however, that your capacity to act in a model way towards those whom you regard as worthy of your trust begs the question of your capacity to cope with rejection and frustration.
Both the witnesses called on your behalf describe you as naive. Mr Joblin, who has prepared two psychological reports with respect to your state of mind, reached the following conclusions. One, you do appear to be markedly naive in some respects. Two, your understanding of the course and outcome of your trial, however, demonstrates a reasonable intellect, and Mr Joblin is of the opinion that issues of personality factors are more important to the assessment of you and your offending than limited intellect. Three, you do not accept the decision of the jury. Four, there is, in Mr Joblin's words, an “extraordinary conflict” between your presentation, apparent non-aggressiveness and professed values on the one hand and your conduct in killing Ms Romeo on the other hand. Five, there is no evidence that you suffer from any identifiable diagnosable psychiatric abnormality or any social personality disorder.
Having regard to the evidence at your trial, the evidence called on your plea and the opinion of Mr Joblin, I am left with the conclusion that although you have for much of your life lived in a way which has been respectful and supportive to those with whom you have associated, you have it in you to step outside the codes of behaviour by which you normally conduct yourself and to resort to extreme violence in expression of your personal emotions.
Given your age, this cannot be seen as a symptom of immaturity but must rather be viewed as indicating a significant defect in your character. It may be that this defect is linked to the naivety identified by Mr Joblin and referred to by the other witnesses, but no satisfactory psychological explanation for this link has been advanced to the court.
Mr Tofilau, as a result of the murder of Ms Romeo you now confront the ruin of your life. As a result of the sentence I propose to impose you will lose the productive use of the balance of your young adulthood and you will lose the realistic opportunity to establish and nurture a family of your own during that period.
Having regard to all of the above matters I have reached the following conclusions. It is incumbent upon me to express the condemnation of the community with respect to your conduct, and to punish you to an extent and in a manner which is just in all the circumstances.
The court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence destroy such life. There must never be any doubt about the commitment of the community, and the court through which it speaks, to defend the importance of human life through the imposition of substantial penalties where an offender kills another member of the community with murderous intent and without lawful justification or excuse.
There are aspects of the circumstances which must be regarded as aggravating your offence. Chief amongst these is that you overpowered a defenceless young woman with brutality and violence to give vent to your own feelings. Male violence of this sort cannot be condoned by our community. It is not uncommon for men to feel anger towards women who reject or otherwise disappoint them. However, personal disappointment can never justify violence of any sort, let alone the brutal taking of another person's young life.
On the other hand there are some circumstances which can be identified as partly reducing your culpability. As I have said, there is no evidence that the murder was premeditated and I am satisfied that it is probable there was an emotional trigger for the killing, arising out of the collapse of your relationship with Ms Romeo, and that you were affected to some extent by the consumption of alcohol and lack of sleep.
Turning to your personal circumstances, I accept that prior to this offence you had no convictions and had demonstrated good character in your conduct in a series of social relationships, including those with your extended family, your rugby club and your employers.
On the other hand you have demonstrated no real remorse for your conduct and have resorted to simple denial in terms of your position before this court. There is a chilling callousness in your apparent indifference to the consequences of your actions and the court must attempt to bring home to you the enormity of what you have done, and the seriousness of the consequences of such conduct.
Mr Tofilau, having regard to the above matters, and to the considerations set out in s. 5 of the Sentencing Act 1991, I sentence you to a term of 19 years' imprisonment for the murder of Belinda Romeo. I fix a non parole period of 15 years. I declare pursuant to s. 18(4) of the Sentencing Act that you have already served a period of 675 days in custody.
Lastly I record, for the sake of completeness, that in fixing this sentence I have given no adverse weight to your involvement in purported criminal activities involving covert police prior to your arrest.
---
0
0
0