New South Wales Supreme Court CITATION : R v TAISENI, MOTUAPUAKA, LEOTA, TUIFUA [2007] NSWSC 1090 HEARING DATE(S) : 26 July 2007, 13 August 2007, 11 September, 2007 JUDGMENT DATE : 21 September 2007 JUDGMENT OF : Latham J DECISION : Etuate TAISENI on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, sentenced to a fixed term of 2 years and 5 months, to date from 3 March 2005, expiring 2 August 2007. On the charge of manslaughter, being count 2 on the indictment - sentenced to a non parole period of 2 years, to date from 3 March 2006, expiring 2 March 2008, the balance of the term being 1 year and 2 months, expiring 2 May 2009. I have taken into account the offence on the Form One in sentencing for this offence ; Taniela MOTUAPUAKA, on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, sentenced to a fixed term of 4 years to date from 3 March 2005, expiring 2 March 2009. On the charge of manslaughter, being count 2 on the indictment, sentenced to a non parole period of 3 years, to date from 3 March 2007, expiring 2 March 2010, the balance of the term being 2 years and 7 months, expiring 2 October 2012 ; Joseph LEOTA on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, sentenced to a fixed term of 4 years to date from 3 March 2005, expiring 2 March 2009. On the charge of manslaughter, being count 2 on the indictment sentenced to a non parole period of 3 years and 6 months, to date from 3 March 2007, expiring 2 September 2010, the balance of the term being 2 years and 10 months, expiring 2 July 2013. I have taken into account the offence on the Form One in sentencing for this offence ; Aminiasi TUIFUA - on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment - sentenced to a fixed term of 2 years and 8 months, to date from 3 March 2005, expiring 2 November 2007. On the charge of manslaughter, being count 2 on the indictment, sentenced to a non parole period of 2 years and 2 months, to date from 3 March 2006, expiring 2 May 2008, the balance of the term being 1 year and 5 months, expiring 2 October 2009 CATCHWORDS : Sentence - Manslaughter by Unlawful and Dangerous act - Maliciously Inflict Grievous Bodily Harm - Joint Criminal Enterprise - Pleas of Guilty - Revenge attack for earlier minor assault upon one offender in public bar of an hotel - Victim of Manslaughter offence struck by bar stool thrown at another - Sentencing considerations where offences of varying objective gravity encompassed by Manslaughter. CASES CITED : R v Blacklidge NSWCCA 12 December 1995 Regina - Crown Etuate TAISENI PARTIES : Taniela Taufa MOTUAPUAKA Joseph LEOTA Aminiasi TUIFUA FILE NUMBER(S) : SC 2006/2611; 2006/2610; 2006/2609; 2006/2608 Regina - PE Barrett Etuate TAISENI - J Stratton SC COUNSEL : Taniela Taufa MOTUAPUAKA - C Simpson Joseph LEOTA - A Canceri Aminiasi TUIFUA - Dr B Glennon Regina - S Kavanagh - Solicitor of Public Prosecutions TAISENI - J Krjcik MOTUAPUAKA - Voros Lawyers LEOTA - CPC Lawyers TUIFUA - DH Cohen SOLICITORS : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION LATHAM J 21 SEPTEMBER 2007 2006/2611 REGINA v ETUATE TAISENI 2006/2610 REGINA v TANIELA TAUFA MOTUAPUAKA 2006/2609 REGINA v JOSEPH LEOTA 2006/2608 REGINA v AMINIASI TUIFUA SENTENCE 1 On 26 July 2007, the prisoners Etuate Taiseni, Taniela Taufa Motuapuaka, Joseph Leota, and Aminiasi Tuifua each pleaded guilty to the manslaughter of Shane Miles and guilty to maliciously inflicting grievous bodily harm, in company, upon Gerard Meehan. Both offences occurred at the Bells Hotel in Woolloomooloo on 18 December 2004. The indictment presented against the four prisoners charged each of them with the murder of Shane Joseph Miles. However, the Crown accepted, in full discharge of the indictment, the guilty pleas offered in respect of the manslaughter charge that appeared as an alternative count. 2 The basis of the acceptance of the plea to manslaughter is that each of the four prisoners is liable for the death of Shane Miles, which was caused by impact between the victim's head and a bar stool, while the prisoners were participating in a joint criminal enterprise to inflict harm upon Gerard Meehan. All four prisoners contemplated as a possible incident of carrying out the joint criminal enterprise that one of them would commit an unlawful and dangerous act, objectively carrying with it an appreciable risk of serious injury to a person, although the prisoners did not contemplate that such an act would be done with the intention to kill or inflict grievous bodily harm. 3 The basis of the plea to the charge in relation to Gerard Meehan was that each of the four prisoners are responsible for the infliction of grievous bodily harm upon that person whilst in the company of each other, on the basis that there was a joint criminal enterprise between them to inflict harm upon Gerard Meehan. The prisoner Leota directly caused grievous bodily harm to Mr Meehan by throwing a chair at him, whilst the remaining prisoners were present and participating in the joint criminal enterprise. Each of the four prisoners contemplated that one of them might do an act causing an appreciable risk of serious injury. 4 The maximum penalty for the crime of manslaughter is 25 years imprisonment. The maximum penalty for the crime of maliciously inflicting grievous bodily harm in company is 10 years imprisonment. The prisoners Taiseni and Leota ask that a further offence of supply heroin be taken into account when sentencing each of them for the offence of manslaughter. That offence came to light when the police intercepted the prisoners' mobile phone communications and heard each of them discussing the sale of that drug. 5 Before proceeding with these remarks, it is important to place the particular type of manslaughter for which the prisoners stand to be sentenced in its proper context. As the former Chief Justice of this State, the present Chief Justice of Australia, noted in R v Blacklidge NSWCCA 12 December 1995 :- The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900, s18 ). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, ….. , involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.) 6 The manslaughter offence for which the prisoners face sentence does not involve an intention to kill or to inflict grievous bodily harm upon Mr Miles, or reckless indifference to his life. The circumstances giving rise to the tragic death of Mr Miles are centred upon a trivial and pathetic dispute between the prisoner Leota and Mr Meehan regarding the use of the pool table in the Bells Hotel in the late hours of 17 December 2004. In what can only be described as a brutish, cowardly and uncivilised response to his rebuff by Mr Meehan and his friends, Mr Leota called for re-enforcements and returned to the hotel shortly after midnight with his co-offenders, in order to have his revenge upon Mr Meehan. The prisoners Motuapuaka and Leota pursued Mr Meehan, using the hotel furniture as weapons, raising a bar stool and a chair and throwing them at Mr Meehan as he sought shelter behind the bar. Mr Miles, who was behind the bar, was the innocent victim in this display of senseless violence. He was struck forcefully with the bar stool when the prisoner Motuapuaka swung the bar stool at Mr Meehan. 7 Whilst the starting point in this sentencing exercise is the unlawful taking of a human life, and one that was precious to the victim's extended family with whom he worked, played and lived, the sentence to be imposed at law is constrained by the basis upon which the plea has been entered. The law demands that the prisoners be sentenced for an offence that is, objectively speaking, at the lower end of the available range, the upper limit of which is the maximum penalty. That maximum penalty encompasses the very broad range of manslaughter offences to which the Chief Justice refers in Blacklidge, including manslaughter offences that would otherwise be characterised as murder, but for the presence of a mental illness in the offender, or provocation, or excessive self-defence. 8 The Court is acutely conscious that this explanation offers nothing in the way of consolation to Mr Miles' family. The victim impact statement speaks eloquently of the far-reaching effects upon his family and upon their business in the aftermath of his death. No one could fail to be moved by the fact that the family faced the heartbreaking decision of terminating Mr Miles' life support in the days before Christmas 2004, when Mr Miles was but 47 years of age. It is understandable that the family's grief and loss have driven them to seek a penalty commensurate with the lifelong loss of a son, brother, uncle, friend and colleague. But the Court cannot sentence solely on the basis of the consequences of the prisoners' conduct. It must also sentence on the basis of the criminality inherent in the prisoners' conduct, as that conduct has been defined by the plea, that is, the doing of an unlawful and dangerous act, absent an intention to kill or inflict serious harm upon Mr Miles. 9 The events of 17 and 18 December 2004 and the actions of each of the prisoners are set out in a statement of agreed facts. I do not propose to repeat them in full. I have already indicated in short form how the offences were committed. However, it is relevant to note the following aspects of the facts, in so far as it is necessary to determine whether any one of the prisoners is more culpable than another. 10 As I have related, the prisoner Leota attended the Bells Hotel in the evening of 17 December 2004 with a friend, and later fell into an argument with a number of customers of the hotel, including Mr Meehan. The prisoner Leota provoked the ensuing fight by hitting a member of Mr Meehan's group. It was only then that Mr Meehan joined in, punching Leota. As a result, the prisoner was escorted out of the hotel by the victim's brother, Danny Miles shortly after 11 p.m. As he was leaving, Leota said to Mr Meehan "I'll get you back for this". 11 Some five minutes later, Shane Miles went outside the hotel and spoke to Leota. Leota was heard to say to Mr Miles "I've got a fat lip and he took a cheap shot. I want him outside." Leota then made a call on his mobile phone saying "Bring the boys down the Bells Hotel and clean this joint out". Shortly afterwards Leota was heard to say "I'm not just going to let someone cut me up for nothing". A bartender at the hotel told Leota to go home but Leota replied "no, this isn't over" and "I'm gonna call my boys, this isn't over, Shane". At this time Leota was seen trying to make a call on his mobile phone. 12 From about 11:22 p.m. Leota made a series of phone calls to the prisoners Taiseni and Motuapuaka. These two offenders travelled with the prisoner Tuifua from the Villawood area to Woolloomooloo where they met the prisoner Leota. 13 At about 12:44 a.m. the four prisoners entered the Bells Hotel from Cowper Wharf Road. Mr Meehan was standing near the bar. The sight of four physically large Islander males entering the hotel caused one of Mr Meehan's group to run behind the bar and tell Danny Miles to call the police. One of the prisoners approached Mr Meehan and asked him to go outside to talk. Mr Meehan refused. Mr Meehan then moved quickly towards the bar and was chased by Tuifua, Taiseni and Motuapuaka. As Mr Meehan approached the bar, Tuifua grabbed hold of his red T-shirt, causing the T-shirt to tear. 14 Motuapuaka then picked up a wooden bar stool and raised it above his head. As Mr Meehan was going behind the bar, Shane Miles approached Mr Meehan from inside the bar area and attempted to stop him. Motuapuaka then swung the bar stool with considerable force towards Mr Meehan, glancing off the shoulder of a barmaid before striking the head of Shane Miles. Mr Miles' skull was extensively fractured and he suffered brain damage as a result of the blow. 15 Mr Meehan continued to move further behind the bar, past Shane Miles who lay on the floor. Motuapuaka followed Mr Meehan on the opposite side of the bar, then stood near the corner of the bar and threw objects over the bar at Mr Meehan, including glasses and bottles from nearby tables. 16 Leota meanwhile moved to the other end of the bar and threw a chair over the bar at Mr Meehan. Mr Meehan was struck in the face and fell to the ground. Leota then went behind the bar to where Mr Meehan was lying and kicked Mr Meehan to the head. The injuries sustained by Mr Meehan as a result of this assault are the subject of the maliciously inflict grievous bodily harm count. Mr Meehan's upper lip required suturing and his teeth and jaw required ongoing medical and surgical attention. 17 Whilst this was happening, Taiseni and Tuifua were standing near to Motuapuaka. Tuifua left the hotel, shortly before Motuapuaka threw yet another chair towards Mr Meehan. Taiseni then moved towards Motuapuaka, placing a hand on his shoulder, indicating that they should leave. At that point the three remaining offenders left the hotel. When police arrived a few minutes later, they were no longer at the scene. 18 Notwithstanding that the prisoners became aware in the days and weeks after these events that Shane Miles had been fatally injured and the police were seeking the offenders by way of broadcasting the CCTV footage from the hotel on the evening news, the prisoners regularly spoke to each other and to other persons, minimising their respective role in these events and discussing the false accounts that they would offer to the police if questioned. To some extent, this false bravado continued following their arrest, and in the case of Motuapuaka, in the answers that he gave to police in his record of interview. 19 Significantly, the account given by Motuapuaka in his record of interview suggested that they had gone back into the hotel in order to get Leota's wallet which he claimed he had dropped in the hotel. When asked what he was trying to do when he picked up the bar stool, Motuapuaka said that they were just trying to stop Mr Meehan "because he was the one that got the wallet". This was an explanation taken up by Taiseni in the course of giving evidence on the sentencing proceedings. However Leota acknowledged in cross-examination that the fight with Mr Meehan was unconnected with the loss of his wallet. The prisoners Motuapuaka and Tuifua did not give evidence on sentence. Even if Taiseni and Motuapuaka were told of Leota's loss of a wallet, I do not accept that it played any part in the decision to enter the hotel and seek out Mr Meehan for punishment. 20 Objectively, the manslaughter offence is a serious example of manslaughter by unlawful and dangerous act. Not content to confine themselves to the use of their fists, which given their physical size would have been potentially dangerous in any event, the prisoners Motuapuaka and Leota took to throwing around heavy items of furniture in a public bar that was still occupied by a number of law-abiding patrons, and staff of the hotel. 21 Similarly, the objective gravity of the grievous bodily harm offence is towards the upper end of the range, given that it was a sustained, callous and planned assault. The sort of mindless mob violence implicit in both offences is deplorable. Each offence deserves a penalty that reflects general deterrence in a significant respect. 22 It should be obvious from the summary of the events inside the hotel that Leota played the principle role in the commission of both offences. He sent out the rallying call, and led the charge, all because another man got the better of him in a fight that he started. He was directly responsible for striking Mr Meehan and kicking him whilst he was on the ground. Motuapuaka was directly responsible for wielding the stool that struck Mr Miles and would have continued to throw furniture at Mr Meehan, in spite of the fact that Mr Miles and Mr Meehan both lay on the floor behind the bar, had Taiseni not intervened. It is difficult to separate these two prisoners in terms of their culpability. 23 Taiseni and Tuifua stand in a somewhat different category. Neither of these prisoners were seen to engage directly in physical violence and Taiseni played some part in ending the assault upon Mr Meehan by Motuapuaka. That said, their presence in the hotel was nonetheless designed to confront Mr Meehan in particular with the force of numbers. I do not take that into account by way of an aggravating circumstance, given that the offence against Mr Meehan includes the element of "in company" and the manslaughter offence is based on a joint criminal enterprise. However, it is relevant in terms of explaining the role played by them. It must be said that in the context of the assaults upon Mr Miles and Mr Meehan, the culpability of Taiseni and Tuifua is well below that of their co-offenders. 24 I turned to the subjective circumstances of the prisoner Motuapuaka. He is presently 26 years of age. He was born and spent his childhood in Tonga, where he was brought up by foster parents. At the age of 13 he moved to Sydney to live with the family of his foster parents' daughter and to continue his education. He obtained his HSC at Fairfield High School where he excelled in sport and continued to play rugby league for Cabramatta, Manly and a private league based in Canberra. He trained as a security guard and worked between rugby league fixtures as a security guard instructor. He is said to be a regular churchgoer and has undertaken charitable work. He has also undertaken professional audio engineering work for commercial companies. He married in 2002 and has two children, aged two and four years. 25 In 2002 and 2003 he was using cocaine and amphetamines to assist him in training. He denied having any problem with the consumption of alcohol. Motuapuaka gave an account to a consultant psychiatrist for the purposes of a report dated 16 August 2007 that on the night of the offence he had ingested two lines of amphetamines, two lines of cocaine and taken one or two ecstasy tablets. He also gave an account to that psychiatrist of the events inside the hotel which is inconsistent with the CCTV footage and which was not, in any event, able to be tested by cross-examination. 26 It appears that since his incarceration on 3 March 2005 he has been treated from time to time with antipsychotic medication because of ongoing depression. Motuapuaka has a criminal history of minor assaults and traffic offences recorded in local courts. I accept that he is genuinely remorseful for these offences. His prospects of rehabilitation are reasonable, although it is a matter of some concern that his occupation as a security guard suggests a taste for physical confrontation. 27 Motuapuaka offered a plea to manslaughter in April of this year at his arraignment. However that plea was not accepted until the date fixed for trial. In those circumstances it seems appropriate to allow for a discount of 20% in recognition of the utilitarian value of the plea and the timing of that offer. 28 The prisoner Leota is presently 29 years of age. He was also born in Tonga and was residing with his wife in Woolloomooloo, whom he married in 2000, at the time of the offences. A psychologist's report of 1 August 2007 records a history of poly-substance abuse, predominantly alcohol. He claims that he had been drinking spirits since the early afternoon of 17 December 2004, although he did not drink alcohol in the hotel. He ingested cocaine after leaving the hotel on the first occasion. 29 The prisoner commenced his education in Tonga, continued it in primary school in Auckland, New Zealand until about year 4 and then completed his primary education at Granville public school. He obtained his HSC at Granville Boys High School. 30 Mr Leota's early life was marked by dislocation from his family, living with cousins, uncles and a grandmother to whom he was emotionally close. When he finally rejoined his parents in Australia in 1987, he was not happy in that environment and returned to New Zealand looking for his grandmother who has since died. 31 He has worked in various unskilled occupations, including labourer, packer, demolisher and is currently enrolled in a TAFE apprenticeship course in metal fabrication and welding. He works in the metal shop in the prison. The references and certificates of achievement since he was taken into custody on 3 March 2005 indicate that he is making positive progress within the present system. His criminal history is largely irrelevant, given that it consists almost entirely of driving offences at a summary level. I accept that he is genuinely remorseful for these offences. 32 The prisoner Leota offered a plea to manslaughter on the day the matter was fixed for trial. In those circumstances, and taking into account the likely six-week duration of the trial, it is appropriate to allow a discount of 10% for the utilitarian value of that plea. His prospects of rehabilitation are moderate if he does not refrain from substance abuse. Otherwise, there is no reason to think he will commit such serious offences in the future. 33 The prisoner Taiseni was born into a Mormon community in Tonga. He is presently 30 years of age. His father is a bishop. He came to Australia with his brothers and one sister at the age of 15 without any skills in the English language. He was at Granville Boys High School for two years before leaving after year 10 and was without employment for the following two years. Shortly prior to his arrest he was working in a factory. He has at various times been a trainee butcher, a bricklayer and a labourer. Mr Taiseni played rugby union at third and fourth grade level for Parramatta. He married in 2000 and has two sons, aged six and five. His criminal history has a number of entries for assault and possess prohibited weapon and a number of driving offences at a summary level. 34 Mr Taiseni gave an account of drinking half a case of beer by himself on the night of the offences. The evidence establishes that this prisoner was in the hotel for approximately 2 minutes, during which time he did not strike anyone, throw anything or swing any punches at any one. 35 The offer of a plea of guilty at arraignment was not accepted by the Crown. For the same reasons as apply in the case of Motuapuaka, this prisoner is entitled to a discount of 20% for the utilitarian value of his plea. I accept that this prisoner is also genuinely remorseful for the consequences of the offences. He has good prospects of rehabilitation. 36 The prisoner Tuifua is 33 years of age. He was born in Tonga, the second eldest of nine children. The family enjoyed an average standard of living and were regular churchgoers. He completed the School Certificate in Tonga, and attempted to enter professional rugby between 1989 and 1997. He lived with his parents until 1997 when, at the age of 23, he came to Australia. He met his wife in Melbourne in 1998 where he was regularly employed and moved to Sydney in 2002. His employment has consisted of manual labour. His wife's employment has allowed the prisoner to stay at home and care for his four children. He hopes to obtain employment as a welder after his release from custody and has undertaken welding course in gaol, with some promise. 37 The prisoner did not commence consuming alcohol until 1995 when the realisation dawned that he would not have a professional football career. Whilst at times he acknowledged binge drinking, on the whole he only consumed alcohol on weekends. The prisoner had not consumed alcohol on the day of the offence and it was for that reason that he was asked to drive Motuapuaka and Leota to Woolloomooloo. The prisoner Taiseni was a close friend and he knew the other prisoners from church, social rugby games and family connections. Once inside the hotel, the prisoner simply felt constrained not to interfere with the demand for revenge, and now feels genuinely contrite for the consequences of that conduct and his failure to assist the victims. 38 He has no prior convictions. His prospects of rehabilitation are excellent. The prisoner offered to plead guilty on the day fixed for trial. A discount of 10% properly reflects the utilitarian value of those pleas. 39 In the case of each prisoner, I find special circumstances on the basis that the sentences I am about to impose represent the first time that each of them have entered custody. However, the period of time that each prisoner actually spends in custody must also reflect the objective gravity of the offences. There must be a degree of accumulation in order to express the totality of the criminality of these two offences, particularly given that each of them relates to a separate victim. 40 Accordingly, I propose to sentence as follows :- Taniela Motuapuaka, on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, you are convicted. You are sentenced to a fixed term of 4 years to date from 3 March 2005, expiring 2 March 2009. On the charge of manslaughter, being count 2 on the indictment, you are convicted. I sentence you to a non parole period of 3 years, to date from 3 March 2007, expiring 2 March 2010, the balance of the term being 2 years and 7 months, expiring 2 October 2012. You are eligible for release on 3 March 2010. Joseph Leota, on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, you are convicted. You are sentenced to a fixed term of 4 years to date from 3 March 2005, expiring 2 March 2009. On the charge of manslaughter, being count 2 on the indictment, you are convicted. I sentence you to a non parole period of 3 years and 6 months, to date from 3 March 2007, expiring 2 September 2010, the balance of the term being 2 years and 10 months, expiring 2 July 2013. I have taken into account the offence on the Form One in sentencing for this offence. You are eligible for release on 3 September 2010. Etuate Taiseni, on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, you are convicted. You are sentenced to a fixed term of 2 years and 5 months, to date from 3 March 2005, expiring 2 August 2007. On the charge of manslaughter, being count 2 on the indictment, you are convicted. I sentence you to a non parole period of 2 years, to date from 3 March 2006, expiring 2 March 2008, the balance of the term being 1 year and 2 months, expiring 2 May 2009. I have taken into account the offence on the Form One in sentencing for this offence. You are eligible for release on 3 March 2008. Aminiasi Tuifua, on the charge of maliciously inflicting grievous bodily harm whilst in company, being count 3 on the indictment, you are convicted. You are sentenced to a fixed term of 2 years and 8 months, to date from 3 March 2005, expiring 2 November 2007. On the charge of manslaughter, being count 2 on the indictment, you are convicted. I sentence you to a non parole period of 2 years and 2 months, to date from 3 March 2006, expiring 2 May 2008, the balance of the term being 1 year and 5 months, expiring 2 October 2009. You are eligible for release on 3 May 2008. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.