Tito v The Queen

[2011] VSCA 303

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2010 0292

STEPHEN TITO	Appellant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and TATE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2011
DATE OF JUDGMENT	12 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 303
JUDGMENT APPEALED FROM	R v Tito [2010] VSC 372 (T Forrest J)

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CRIMINAL LAW – Sentence – Manslaughter – Youthful appellant killed another with screwdriver in fight while drunk – Sentenced to 10 years’ imprisonment with non-parole period of six years and three months – Whether sentencing judge only moderated non-parole period in light of appellant’s youth and good prospects of rehabilitation and not head sentence – Manifest excess – R v Mills [1998] 4 VR 235, DPP v Lawrence (2004) 10 VR 125 – Appeal allowed – Appellant resentenced to eight years and six months’ imprisonment with non-parole period of five years.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Theo Magazis & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Tate JA that the appeal should be allowed for the reasons stated by her Honour and the appellant re-sentenced as her Honour proposes.

TATE JA:

1. On Boxing Day 2008, the appellant, Stephen Tito, while intoxicated, killed his friend, Afram Kodi, in a fight.  He was aged 20 at the time of the offence.  He had armed himself with a screwdriver.

1. The appellant was charged with murder.  On 8 April 2010, he was found guilty by a jury of unlawful and dangerous act manslaughter as an alternative to murder.  He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
(Alternative to Count 1)	Unlawful and Dangerous Act Manslaughter	20 years [s 5 Crimes Act 1958]	10 years	Base Sentence
Total Effective Sentence:		10 years
Non-Parole Period:		6 years 3 months
Pre-sentence Detention Declared:		602 days
6AAA Statement:		N/A
Other orders: Forensic Sample Order [s 464ZF(2) Crimes Act] Disposal Order [s 77(1) Confiscations Act 1997]

1. Weinberg JA granted an application for leave to appeal against sentence on the following grounds:

(1)       The sentencing judge erred by failing to accord the appellant’s youth and rehabilitation their due weight and, in particular, by:

(a)       subjugating both to considerations of general deterrence and denunciation;

(b)      unduly limiting the synthesis of both to the fixing of the

appellant’s non-parole period.

(2)       In all the circumstances, the total effective sentence and non-parole period are manifestly excessive.

The circumstances of the fight

1. On Boxing Day 2008, a number of young members of the Australian Sudanese community attended an alcohol-free barbecue at 1 Titus Court, Reservoir.  Most of them had previously attended a church group meeting.  The appellant attended the barbecue briefly at about 6:30pm, but left shortly after he arrived.

1. At approximately 10:30pm, the barbecue had concluded and a number of the young people present had gathered on the nature strip outside the front of…