Re Jacob Polutele

[2011] VSC 109

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

Not Restricted

CRIMINAL DIVISION

S CR 2010 63

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by JACOB POLUTELE

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2011
DATE OF JUDGMENT:	25 March 2011
CASE MAY BE CITED AS:	Re Jacob Polutele
MEDIUM NEUTRAL CITATION:	[2011] VSC 109

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CRIMINAL LAW – Application for Bail – Accused charged with manslaughter – Unacceptable risk of failing to appear to answer bail – Bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Langslow	Reville Papa Lawyers
For the Respondent	Mr C Ryan SC	Office of Public Prosecutions

HER HONOUR:

1. Jacob Polutele has been charged with the serious offence of the manslaughter of Cain Aguiar who died on 14 July 2009.  He now seeks bail pending the recommencement of his trial on 27 April 2011. The Prosecution resists the application on the grounds that there is an unacceptable risk of him failing to answer his bail and of offending if he is released on bail.

1. Mr Polutele’s trial commenced on 21 February 2011 and ended on 17 March 2011 without verdict when the prosecution case was all but finished.  A new trial will commence on 27 April 2011.  Mr Polutele has been in custody since his arrest on 14 July 2009, a period of some 20 months.  He was born on 21 August 1986 and is now 24 years old.

1. Mr Aguiar died of head injuries received during an assault outside the Blarney Stone Hotel in Yarraville late on the night of 9 July 2009.  He had been knocked out as a result of a punch allegedly delivered by Mr Polutele and his head had been kicked or stomped upon by Fostar Akoteu.  Mr Akoteu has pleaded guilty to Mr Aguiar’s manslaughter and is serving a ten year sentence of imprisonment.

1. In my opinion, the prosecution case that it was Mr Polutele who delivered the punch which resulted in Mr Aguiar becoming unconscious is strong.  The issue for the jury is as to whether or not it was Mr Polutele who struck Mr Aguiar.  Mr Polutele pleaded guilty to one count of assault before the jury.  He made that plea on the basis of his contention that he had punched Mr Aguiar earlier on during the fight which ended in him being stomped upon or kicked as he lay unconscious on the roadway.  Mr Polutele claims to have walked away before Mr Aguiar fell unconscious to the ground after being struck by someone else.

1. The prosecution relies upon LEAP reports of Victoria Police and other records in support of its arguments that there would be an unacceptable risk both of Mr Polutele failing to appear and of him committing a further offence whilst on bail. 

1. The records show that on 5 December 2007, Mr Polutele who was then 21 was convicted of failing to answer bail and of recklessly causing serious injury.  The incident giving rise to the charges had occurred after he had attended a club for Pacific Islanders in Queen Street Melbourne.  He and others had been involved in a violent dispute with the six victims - two of whom were knocked unconscious and one of whom lost teeth on 26 February 2006.  Mr Polutele received a CBO by way of sentence.  He breached that order and incurred a sentence of 2 months’ imprisonment suspended for two years on 17 September 2008 for the offences of failing to answer bail and of recklessly causing serious injury.  He was still serving that suspended sentence on 9 July 2009 when Mr Aguiar was assaulted by him and other men.

1. Whilst there is undoubtedly some similarity between the circumstances of the 2006 and 2009 offending, I am not satisfied that there would be an unacceptable risk of Mr Polutele offending if he were released on bail, pending his trial on 27 April 2011.

1. I am however persuaded that there would be an unacceptable risk of him failing to answer his bail, given his history, the seriousness of the charge he faces and the opportunity he has had to assess the strength of the prosecution case by seeing all its witnesses give evidence so recently. 

1. Mr Langslow submits that the court can be comforted about the prospect of him appearing to answer bail by him living at home with his parents as he is said to have always done.  I note that this did not assist him to get to the court to answer bail on the previous occasion.  Mr Polutele claimed to have been confused about his obligations in the past.  I am not persuaded that this explains his previous failure to appear.  The fact that he is said to have completed courses relating to anger management and the like whilst on remand is positive in terms of his development, but does not again persuade me to a contrary view.

1. Mr Langslow did mention that there was a relative prepared to offer some kind of surety on the security of her Sydney house, but went on to say that she owned it jointly with four others and that he was not sure as to the details of any proposed arrangement by which the surety could be provided or the amount involved.  As Mr Ryan pointed out, I can only take the possibility of Mr Polutele providing a surety into account when determining whether the provision of a surety might provide him with an incentive to answer his bail or not to re-offend.  I cannot take any inability to provide a surety into account against him and do not do so.  But the uncertainty about any arrangements for providing a surety means that I do not regard it as giving him such an incentive.

1. Mr Langslow emphasised that Mr Polutele’s family is religious and supportive of him.  This should reassure the Court that he would appreciate the significance and seriousness of the trial and attend to have the matter dealt with.  I have taken those matters into account but I note that they have not prevented his previous failure to appear.

1. Mr Langslow also mentioned some difficulties he faces in communicating with his client during the trial because of him being located upstairs in this building.  I have also taken those matters into account in determining the application.

1. Mr Ryan noted that s 4(3) of the Bail Act 1977 lists factors to which the Court may have regard, which include the attitude of the victims of the crime.  I have taken into account that Mr Aguiar’s family members live near Mr Polutele’s family home and use the same supermarket and that they fear meeting him there or in the area.  They would be opposed to the application.

1. In all the circumstances, bearing in mind particularly Mr Polutele’s history with regard to answering bail previously in the context of a less serious crime than manslaughter, his opportunity to assess the strength of the case against him and the fact that the new trial will start in just over a month, I conclude that there is an unacceptable risk of him failing to appear to answer bail if it were granted. Section 4(2)(d) of the Bail Act 1977 requires me to refuse bail in those circumstances.

1. I refuse the application.