R v Samu Matagia Telemete [2015] NSWSC 909

Supreme Court New South Wales

Medium Neutral Citation: R v Samu Matagia Telemete [2015] NSWSC 909 Hearing dates: 1 May 2015 Date of orders: 09 July 2015 Decision date: 09 July 2015 Jurisdiction: Common Law Before: Adams J Decision: Samu Matagia Telemete is sentenced to an overall term of 7 years and 6 months, comprising a non-parole period of 4 years and 6 months commencing on 17 January 2013 and expiring on 16 July 2017 and a balance of term of 3 years commencing on 17 July 2017 and expiring on 16 July 2020. The earliest date upon which the offender may be released on parole is 16 July 2017. Catchwords: CRIMINAL LAW – Sentencing – Manslaughter Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 Cases Cited: R v Previtera (1997) 94 A Crim R 76 R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 Category: Sentence Parties: The Queen (Crown) Samu Matagia Telemete (Offender) Representation: Counsel: Mr M Hobart (Crown) Mr N Steel (Offender)

Solicitors: Director of Public Prosecutions (Crown) Smirilios Criminal Lawyers (Offender) File Number(s): 2013/15747 Publication restriction: None

Judgment Introduction 1. In the early hours of 2 September 2012, Mr Telemete and his friend Mr Autagavaia were involved in a fight with Mr Darren Neville, who died as a result. Mr Neville's friends, Mr Steven Mead and Mr Allan Pettit were also involved and suffered some injuries. Mr Telemete was charged with the murder of Mr Neville, causing grievous bodily harm to Mr Mead and actual bodily harm to Mr Pettit. Mr Autagavaia was charged with the same offences, but the prosecution accepted a plea of guilty to manslaughter in lieu of the murder charge; he also pleaded guilty to the other charges. Mr Telemete pleaded not guilty to all three. 2. On 20 February 2015 the jury acquitted Mr Telemete of murder, convicting him instead of manslaughter and acquitted him of the other two charges. It is agreed that the proper approach to the conviction is that he was guilty of manslaughter by an unlawful and dangerous act. A subsidiary question is whether the blows suffered by Mr Neville to his head and neck, which were the most serious injuries, were inflicted by Mr Telemete or Mr Autagavaia. If inflicted by the latter, then the jury's verdict must have followed from a conclusion that he and Mr Telemete were engaged in a joint criminal enterprise one of the elements of which was to inflict injuries which an ordinary person would have appreciated would have been serious, those injuries ultimately causing Mr Neville's death. A complicating feature is that there was conflicting expert evidence as to the mechanism of death. I will deal with this aspect in due course.