Tito v The Queen

Case [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…

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AGLC
Tito v The Queen [2011] VSCA 303
Case
[2011] VSCA 303
Decision Date

CaseChat Overview and Summary

In the matter of Tito v The Queen, the appellant, who had been convicted of manslaughter, appealed against his sentence. The appellant, while intoxicated, killed another individual with a screwdriver during a fight. The Supreme Court of Victoria was tasked with determining whether the original sentencing judge had appropriately moderated the non-parole period in light of the appellant’s youth and potential for rehabilitation. The appeal questioned whether the original sentence, which included a 10-year imprisonment term with a non-parole period of six years and three months, was manifestly excessive.

The legal issues before the court involved the principles of sentencing for manslaughter, particularly the role of the offender's age and prospects for rehabilitation in determining the severity of the sentence. The court examined whether the sentencing judge had erred by focusing solely on moderating the non-parole period rather than the overall head sentence, in accordance with precedents such as R v Mills and DPP v Lawrence. The appellant argued that the original sentence was manifestly excessive, and the court needed to decide whether the appeal should be allowed and a new sentence imposed.

The court found that the sentencing judge had only moderated the non-parole period without adequately considering the overall sentence in light of the appellant’s youth and rehabilitation prospects. The court held that the sentence was manifestly excessive, as the judge had not sufficiently taken into account the mitigating factors of the appellant’s age and potential for rehabilitation. Consequently, the appeal was allowed, and the appellant was resentenced to eight years and six months’ imprisonment with a non-parole period of five years.

Orders

Orders of the court

Appeal allowed. Appellant resentenced to eight years and six months’ imprisonment with non-parole period of five years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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