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. Background 1. Mr Telemete was one of a group of Samoan people who had gathered together to celebrate a Samoan function at a school in Macquarie Fields. This was a social function with people bringing their food and drink. Mr Autagavaia also attended. The function ended at about midnight. Near the high school is a hotel where Mr Neville, Mr Mead and Mr Pettit were together drinking and smoking some marijuana. (For convenience, I will refer occasionally to these men as "the Australians". Mr Telemete and Mr Autagavia are also Australians, though of Samoan origin, but to distinguish them, I will occasionally use the term "the Samoans".) They were in their late thirties and early forties. They left the hotel around the same time as the people who had been at the function left the school hall. As they walked past the hall an extremely drunk young man named Mossi Aigaga tried to provoke the men into a fight but they ignored him. Mossi was acting on his own and his behaviour was regarded with embarrassment by the Samoan people in the vicinity. Mr Telemete tried to calm him down. The group which included Mr Telemete were walking more or less in the same direction as the Australians on the other side of the road. Mossi tried unsuccessfully to provoke Mr Telemete into a fight and there were exchanges between him and the Australians. 2. At one point, when the Australians were on one side of the road and the Samoans on the other, they exchanged posturing words. There is no real dispute that, after this, Mr Telemete, soon followed by Mr Autagavaia, crossed the road and a fight took place which, one way or another, involved all five men. One of the difficulties in this case is that their intoxication made Mr Mead and Mr Pettit somewhat unreliable witnesses. Before dealing with their accounts and that of an eye witness, Ms Turner, it is useful to deal with what the police found when they arrived shortly after the fight ended and then with the autopsy findings. This provides an objective context in which to deal with this evidence. At the scene 1. At about 2:00am, following a call over the police radio, Constables Martin and Crossingham saw Mr Neville and Mr Mead lying up against a wooden fence on the western side of Eucalyptus Drive. Mr Mead was sitting up with his back leaning against the wooden fence, his head was bowed with his chin touching his chest and his arms by his side. Constable Crossingham took hold of his left shoulder, shook him and asked what happened but he did not respond. He was still conscious and he felt a faint pulse. Mr Neville also had his back up against the fence with his head facing down to the left as far as it could go, behind Mr Mead's shoulder, with his torso behind Mr Mead's back. It seemed to the officers that he had previously been sitting next to Mr Mead but had slumped down behind him. Constable Crossingham found that Mr Mead had a weak pulse. Mr Neville was unconscious and not breathing, with no pulse detectable (though this might have been difficult to do because of his somewhat fatty neck). He pulled Mr Neville by the legs so that he was lying flat on the ground and Constable Martin began performing CPR, essentially rhythmically pressing down on his chest firmly on the sternum area to try to keep the heart beating. After about 10 minutes or so this was continued by an ambulance officer who had arrived in the meantime. Whilst he was performing CPR, Constable Martin noticed Mr Mead sitting up more, move around and groan but he did not say anything. An ambulance officer also attended to Mr Mead. The only objects of significance found at the scene by police were some pieces of timber lattice on the ground which plainly had broken from the fence. It is worth noting that this timber was light and, even if Mr Neville was struck with it (of which there were no matching injuries), it was most unlikely to cause any significant injury. Mr Telemete's T-shirt was found at the scene as well as a Mr Autagavaia's cap. 2. At the time the paramedics arrived, Mr Mead was still sitting against the fence, his arms were crossed and he was rocking backwards and forwards. As mentioned, one of the paramedics took over CPR from the police officer. She had previously performed this procedure over fifty times. It is necessary to use moderate to heavy pressure – "enough pressure to actually crack the ribs to actually stimulate the heart while pressing on it" adding "it moves the bones so that you can actually get to the heart because the heart is encapsulated by the ribs". Asked how frequently ribs were fractured by this procedure, she answered, "If you are doing CPR correctly you will break ribs". As it happened, there was never any sign of life. Despite continuing CPR at the time of handover at the hospital, Mr Neville did not recover consciousness and very shortly after was certified as dead. Post mortem 1. The starting point for considering the nature of the assaults on Mr Neville, must be the results of the post-mortem examination, since they provide an objective basis for assessing the extent of the violence. The autopsy was conducted by Dr Istvan Szentmariay, a forensic pathologist employed by the Department of Forensic Medicine. Dealing first with the head and neck, there were four closely associated relatively small lacerations to the back of the right ear with associated bruising, caused by blunt force. (A laceration is not, as the term is generally understood, a curt of some kind, but the splitting of the skin.) These may have resulted from one blow. The upper nose was bruised. There was soft tissue bleeding underneath the skin (not seen externally) but outside of the scalp on both sides. There had been bleeding immediately underneath the skin with an associated extensive bruise of the right strap muscle, deep in the muscle layers of the neck, measuring up to twelve centimetres. On the underside of the skin over the left cheek there was an eight by three centimetre bruise between the jaw bone and the skin and a small bruise on the upper lip. The thyroid cartilage was normal but the hyoid bone had been recently fractured showing a small amount of bleeding. This bone is deep down in the neck so considerable force is necessary to, as it were, reach the bone to fracture it. As with the deep bruising in the neck, which was in the same area, this also was on the right side. These injuries to the neck occurred in a relatively confined area from the top of the ear roughly to the middle level of the neck. Such injuries could have been caused by stomping or kicking but jumping was unlikely as the greater forces would have caused more injuries. A punch is remotely possible. It is not possible to say how many blows were likely to have caused these injuries except that there was more than one. Pointing to the fact that there were injuries on both sides of the head, Dr Szentmariay thought it likely that the deceased's head was hit on one side, whether with a foot or otherwise, and the injury to the other side was caused, for example, by the head hitting the ground. 2. Moving to the trunk, Dr Szentmariay also saw a number of recent rib fractures. On the right, these involved the back of the first two ribs and the sides of the third, fourth and fifth ribs with another fracture to the front of the fifth rib. The first, second and fourth ribs on the left were also fractured. Except for the fractures to the first and second ribs on the right, the other fractures may have been caused by forceful attempts to resuscitate the deceased. 3. There was also bruising to the back of the right upper arm and to the left lower leg and thigh and the right knee. There was mild (inconsequential) swelling but no significant injury to the brain. Significantly, there were no fractures to the facial bones or teeth, no fracture to the skull or injury to the spine or any fractures to any of the deceased's arms or legs. Routine toxicology showed a blood alcohol level of 0.177 grams per 100mL of blood. 4. Dr Szentmariay's opinion was that death resulted from multiple blunt force injuries. Though no specific mechanism could be identified, death was caused by obstruction either of the airways or the blood supply to the brain resulting from the application of substantial force to the neck. He did not think that there was evidence justifying the conclusion that asphyxiation or inability to breathe caused Mr Neville's death. In summary, Dr Szentmariay's view was that, there being no other injuries of any significance except the neck injuries, where there are structures relating to blood supply to the brain and availability of air, it is reasonable to infer that the injury to the neck directly or indirectly caused death. He agreed that one application of force could explain the deep injury that resulted in the fracture of the hyoid bone. Dr Szentmariay thought that snoring noises (mentioned by Mr Telemete) were inconsequential. 5. The defence called Dr Hilton, also a highly qualified forensic pathologist but, I think it fair to say, with a great deal more experience than Dr Szentmariay, having worked as a forensic pathologist for over forty years. It was not disputed that Dr Szentmariay's report and the photographs taken at the autopsy were sufficient to enable Dr Hilton to form his own opinion about the significance of the post mortem results and the diagnostic deductions that could be made from the physical manifestations. Dr Hilton was of the opinion that the physical injuries, whether considered individually or together, were not of sufficient severity to have caused death. He pointed, however, to several other factors: some congestion or tiny haemorrhages in the brain, the characteristics and distribution of which did not indicate that they were caused by any direct force to the head; and the body mass of the deceased which would pre-dispose him to dying from an obstructive problem in his upper airway if he were unconscious (for whatever reason). Dr Hilton thought that the likely cause of death was positional asphyxia precipitated by unconsciousness which, in turn, was contributed to by concussion, alcohol intoxication, his bodily habitus (ie, characteristics) and the position of his head when police arrived. In respect of the explanation given by Dr Szentmariay, in Dr Hilton's opinion, although death was caused by the prevention of the delivery of oxygenated blood to the brain, there was no demonstration of any constriction of the neck structures resulting from injuries which might impinge (with a slight reservation which he dismissed) upon the blood supply to the brain. Hence, the most likely pathway or the most likely terminal factor leading to death was positional asphyxia. 6. Dr Hilton dismissed (as did Dr Szentmariay) the likelihood of the injuries being caused by someone jumping on the deceased's head. He thought that the deep bruising in the neck and the fracture of the hyoid bone resulted from two applications of force, with the lacerations to the ear demonstrating at least a third. Although it may be that the injury behind the ears was caused by someone stamping on that area, the injury to the hyoid bone, because of its depth and position, was much more likely to have been caused by a kick or perhaps a punch because of the penetration necessary. The fact that there was no laceration over the jaw or jawbone would also suggest a kick rather than a stomp. The fractures to the back of first two ribs on the right resulted from an additional application of force. Dr Hilton thought, overall, dealing with the injuries to the head, neck and those ribs, four blows of one kind or another would adequately explain them. Dr Szentmariay's response to Dr Hilton's view about the likely cause of death was that he found it difficult to imagine a bodily position that could cause asphyxia, bearing in mind the anatomy of the relevant structures. When this evidence was put to Dr Hilton, he said that it had been known to kill a number of people in police cells; it was rare in a healthy adult who was compos mentis but, when the person was drunk and unconscious, it is a real risk. He added that he had been involved in many deaths in custody, some of them in exactly similar circumstances. 7. It was submitted by the prosecutor that I should infer from the verdict that the jury rejected the opinion of Dr Hilton. I do not agree. Acceptance of that evidence would not have required acquittal unless the jury thought it reasonably possible that an ordinary person might not have realized that leaving Mr Neville in a state of compromised unconsciousness carried with it a substantial risk of serious injury. In my view it is likely, and certainly open, that the jury rejected this possibility, especially given the difficulties of attempting to resolve the difference of opinion between the pathologists. It would have been entirely reasonable for the jury to approach the question by testing whether, if Dr Hilton was correct about the cause of death, the chain of causation might have been broken. If not, then it was not necessary to determine which opinion about the cause of death was correct. 8. My task, however, is a rather different one, which requires the objective circumstances of Mr Neville's death to be determined if I am able to do so. I have formed the view that Dr Hilton's evidence about the cause of death should be accepted. The injuries demonstrated at autopsy were, it is agreed by the pathologists, not sufficient to cause death and involved no vital organs or significant (in terms of lethality) damage to other structures; in sum, they amounted to lacerations, deep bruising, broken hyoid bone and broken ribs at the top of the neck. Essentially, Dr Szentmariay's conclusion worked back from the fact of death to the identified injuries so that, once positional asphyxiation was excluded, it followed that those injuries (individually insufficient) operated together by a mechanism which could not be identified to cause death. Dr Hilton's opinion essentially ascribed the cause of death to the mechanical consequences of Mr Neville's partially upright position when he was unconscious or insufficiently conscious to move, together, as I understood him, with his difficulty in seeing how the injuries could have led to death. At the same time, Mr Neville's compromised consciousness resulted from the violence inflicted in the head region so that, although the pathologists differ as to the mechanism of death, they agree about the significance of those injuries. It should be interpolated at this stage that, in the result, the different posited mechanisms do not seem to me to substantially affect the gravity of the offending. 9. As to the extent of violence, the rib fractures to the upper ribs plainly required considerable force (most likely kicking), as did the neck injury. The other fractures may well have resulted from the CPR procedure; certainly I could not conclude that they were caused either by Mr Telemete or Mr Autagavaia. The other injuries were consistent in my view with the use of no more than moderate force. Ms Turner 1. A key witness in the prosecution case was Ms Turner, who resided in a house from the kitchen window of which she saw part of the fight. Between her house and the crime scene is a small yard, a relatively narrow road, a small park and then Eucalyptus Drive, on the far side of which the fight took place. The distance was not measured but a view was conducted which provided a good understanding of the distance and the nature of possible impediments to a clear view. It was something over 100m. The park contained a number of trees and shrubs which, to some extent, would have limited her view, although they were significantly smaller at the time of the incident than they would have been at the view. For whatever reason (I think the slope of the ground), Ms Turner could not see the ground on either side of Eucalyptus Drive. 2. Ms Turner said she heard yelling and saw three men standing in Eucalyptus Drive. She said that she saw one man push the man in the centre down and kick him once and then saw the other man on her left kick him as well. The man who pushed the victim over kicked once, whilst the other kicked the man on the ground with (she thought) great ferocity at least seven times. She never saw the man who fell get up; nor did she see anyone sitting up against the fence. It transpired that she (because her vision was obscured) could not actually see the man on the ground and had inferred, from where she saw him fall that he was being kicked, she said she "imagined it was in the head area". She said both men were wearing hoodies first up but then down. In her first statement to police, taken shortly after the events, she gave a rather different account. She told the police in substance she saw two men standing, one of whom pushed the other over and then kicked him, and then she noticed a third male wearing a hooded jacket run over and kick the man on the ground. (In her evidence she said that her reference to running over was wrong but she didn't notice it when she signed her statement. She said she had noticed a number of other mistakes in the statement.) She thought that the man was being kicked in the head area but, of course, this was an assumption. Although she saw kicks she did not see any stomping. She heard (what she thought were) palings being ripped off the fence but did not say that she had seen what had happened to them. After the kicks she saw the two attackers leave the area and, further up the road, meet four other males. She was certain only two men were involved in the attack. She said that she moved from her kitchen window to her back veranda from time to time but it is not clear when this happened. She believed that the assault occurred on the park side of Eucalyptus Drive because there was a light there but it might have led her to mistake the position because the light was in fact on the opposite side of the road, where the fight took place. 3. It is notorious that eye witness accounts in circumstances like this are often confused and one must be careful not to construct artificial coherence. I would, moreover, be inclined to regard a witness' first statement made shortly after to be more reliable than later accounts. 4. It seems to me that Ms Turner had not seen Mr Telemete cross the road or the beginning of the fight. Nor had she seen Mr Telemete without his T-shirt. Since the interaction which led to Mr Telemete losing his T-shirt most likely occurred before Mr Neville was on the ground being attacked it seems likely that it was Mr Autagavaia and not Mr Telemete who Ms Turner saw repeatedly kicking because her attention was focussed on that event and the man involved was wearing a hoodie (so that she might not have noticed the other man whose upper body was bare). The sequence of events described in her statement is somewhat difficult to understand. The Australians numbered three and the Samoans two, which reflects the numbers she mentioned. Both the Samoans said that Mr Telemete went over first and Mr Autagavia followed. I gathered from Mr Pettit's evidence, though this was not clear, that he was on the other side of the road when his friends were attacked and ran over to help. Perhaps it was he who had been seen running across the road by Ms Turner, although he clearly had not attacked either Mr Neville or Mr Mead. Other witnesses 1. Mr Pettit said he had met Mr Mead and Mr Neville at the tavern and left with them, though he did not have a clear recollection of doing so. He had been drinking and smoked some marijuana but wasn't "overly intoxicated". After Mossi had approached them, he left the other two, crossing the road to the other side, "just doing my own thing you know". The first thing he noticed was the two men on the ground "getting jumped on" by more than three Islanders. One of them was "jumping in the air as hard as he could and then landing on his head". This happened at least three times and he ran over to help and was then hit "everywhere", including in the head. He could not recall whether he was attacked by one or more persons. He backed away but, seeing his friend still being jumped on, he ran back towards them and was then hit to the ground. At this point he was not able to see what was happening to the other men. He was being "stomped on", got up and ran off, being chased, he thought. In cross-examination he said that two men were jumping on his friends and there were at least five others present, as I understand his evidence, of whom three attacked him. In the statement made to police, he only talked about going over to assist his friends once. He said he had some bleeding from his ear but when he went to a doctor the following day he did not worry about it. The doctor prescribed Valium. Mr Pettit said he was bi-polar and was affected mentally rather badly shortly after the incident and conceded that his condition may have affected the reliability of his recollection, although his evidence was completely accurate. 2. Mr Pettit's evidence cannot, in my view, be relied on except in broad outline. Although I would accept that he believed his account to be accurate, it was inconsistent in a number of respects with that of Ms Turner, though I think it plain that she did not see the entire episode. Nor is the medical evidence consistent with Mr Pettit's recollection of the violence. 3. It is necessary also to mention, though briefly, the evidence of Mr Mead. He recalled going to the tavern, meeting Mr Neville and Mr Pettit there and drinking with them. He was "fairly well" intoxicated. He was "pretty sure" that neither he nor Mr Neville punched an Islander male at the start. He recalled "a big fella with a white shirt on" punching Mr Neville in the head and Mr Neville dropping to the ground as a result. (Given that Mr Autagavaia was significantly bigger than Mr Telemete, this suggests that he was the first to strike Mr Neville or, at least, the one whose punch dropped him to the ground.) Mr Mead said that Mr Neville was then "kicked by a few people … pretty viciously" and "wasn't moving". They were about four or five metres apart at that point, Mr Mead yelled out, "Hey he's had enough, enough" and then he was hit in the right ear from behind by "something solid, not like a fist" and fell to the ground. He said that it was at this time that Mr Pettit ran across the road and he was also hit, got up and ran off. Mr Mead said that he could not himself get up at that point. He was then hit on the hand with an object which he could not identify and then, "getting put up against copper logs", a reference to the treated logs around the park area across the road. It was then, he said, he lost consciousness and woke up in hospital a couple of days later. He said that he read about the incident in local papers, although he was certain that Mr Neville was "kicked viciously". In his first statement Mr Mead stated he recalled being hit from behind but he said nothing about any hitting or kicking involving Mr Neville. He agreed that, at that time, he had no memory of it. At a later time he heard media reports about the incident. When being asked by Mr Steele, counsel for Mr Telemete, about his first statement to agree that he recalled nothing further at that time he said – A: Can I answer that question, you wanted to establish what my memory was at different points of time? Q: Yes --- A: This all seems very surreal, this is like a nightmare. It is hard for me to distinguish fact from feelings. Feelings are not fact, I understand that, but you want me to be one hundred per cent sure on things when I was intoxicated, prescription medication, illegal drugs, how can I be a hundred per cent sure at any point of time with this stuff, without the incident of Darren being hit and kicked like an animal. I am a hundred per cent sure on that, even though my memory is clouded and I had the injury. I'd never seen anyone – it still traumatises me the way this man was kicked. I don't know how anyone could do that, but it was done. Do with it what youse will. 1. The ambulance notes record that Mr Mead was not capable of talking to the ambulance officers. He was admitted to hospital on the night of the fight but could not remember what had happened. He was certainly injured in the fight and suffered some bleeding to his brain, which was quickly resolved without medical intervention and had no long term physical consequences. At the time of the first statement he was still suffering from his injuries and headaches and was also on some medication, mood stabilisers and an anti-depressant. (He had long standing issues for which these medications were prescribed.) However, he had been prescribed morphine for pain. He made a second statement to police on 5 February 2015 when he believed he had recalled other things. Mr Mead's evidence reflects a deal of reconstruction and confabulation, with the consequence that I am unable to distinguish, in relation to important facts, which parts are reliable. This conclusion is reinforced by my own impression of Mr Mead as a witness. 2. So far as the Crown case was concerned, the last eye-witness was Mr Autagavaia, who, as I have already mentioned, pleaded guilty to the manslaughter of Mr Neville, causing grievous bodily harm to Mr Mead and assaulting Mr Pettit causing actual bodily harm. He was sentenced on 22 July 2014 to a term (discounted by 25 per cent for the plea) of 7 years 6 months imprisonment with a non-parole period of 4 years 6 months. His plea proceeded on the agreed basis, in substance, that Mr Telemete was the primary offender who inflicted the most serious violence. 3. Mr Autagavia plainly did not wish to give evidence. He denied any recollection of any interaction with the three victims. The approach of the prosecutor was to take him to what he had said during his interview with police and part of his evidence in his sentence proceedings. This did not help him to recall what had happened, although he said he had told the police the truth. Of course, in what he said to police and to the sentencing judge, he had an interest in downplaying his own involvement and exaggerating that of Mr Telemete. Most of his denials of recollection were lies. I did not regard him as a reliable or truthful witness and do not propose to analyse his evidence in detail. In substance, he said he crossed the road when he saw Mr Telemete was fighting with two men. The third (obviously, Mr Pettit) was sitting across the road. He saw Mr Telemete start punching one of the two men and he and the other with whom Mr Telemete was fighting fell backwards into the fence but he could not recall whether they were still on their feet or had fallen to the ground. He said he was not hitting hard. He said that some of the lattice work on top of the fence had fallen out of the fence and Mr Telemete hit one or other of the men, he thought both, on the ground with a piece of wood, holding it with two hands above his head and then bringing it down on them. He told the police that one or both of the men on the ground made snoring noises. Mr Autagavaia said that he fell down at one point because he got hit but got up and started to fight the third man. He said he thought Mr Telemete came over and helped him but he did not know whether he hit the man. During his sentence proceedings Mr Autagavaia had agreed with the Crown Prosecutor that Mr Telemete stomped on Mr Neville's chest. At the trial he said that he did not remember whether he saw this. 4. On those matters in which Mr Autagavaia is in significant dispute with Mr Telemete, in particular as to whether Mr Telemete struck one or other of the victims with a piece of lattice and stomped on Mr Neville's chest, I prefer the latter's evidence. Certainly, Mr Autagavaia's assertions about these matters cannot be accepted beyond reasonable doubt. Other evidence 1. Evidence was also called from a number of other Samoans who had been at the function and, when it was finished went to the home of Mr Autagavaia's wife, Malia Nickel, where they gathered in the garage which was set up with games and sound equipment and gave evidence of what they heard Mr Autagavia and Mr Telemete say when they returned after the fight. There are a number of difficulties with accepting this evidence at face value: the witnesses' recollections were first recorded in statements made to police some months after the event and after there had been a deal of media publicity about the incident; all except one had been drinking, self assessment of the effects of which are notoriously unreliable; and what was said does not seem to have been directed to the particular witness but was part of an overheard conversation. The one sober witness was a sixteen year old who had not gone to the function, and met the others when they returned to the garage. He had not been drinking. He recalled Mr Telemete speaking on the telephone about "how he had just come in from a fight and he had hit someone with a piece of wood". He agreed that after the events there was a fair bit of talk in the local community about Samoan men being involved in the fight and also many reports broadcast in the media but he denied seeing the reports or hearing people talking about what had happened. His statement was made on 9 January 2013. I am not satisfied that this evidence or that of the other witnesses along the same lines is sufficiently reliable to act on. Furthermore, even if Mr Telemete said what has been attributed to him, it is not possible to know whether he was speaking of Mr Mead or Mr Neville. 2. The prosecution also relied on intercepted telephone conversations involving Mr Telemete. During the conversations he said, amongst other things, that the deceased was killed by the use of hands, at another point saying, "He fell down and stomped over him" (from the context, I think a reference to Mr Autagavaia). He also said "there were plenty of us on the road, but we were the only ones who punched him on the other road". During a conversation with Mr Autagavaia about attending on the police, Mr Telemete said, "Don't think that I am trying to run away. No brother, I will never run away, leaving you alone, because I know it was me who was wrong that night". However, in a conversation with another person, speaking of Mr Autagavaia, Mr Telemete said, "He is protecting his own back, he knows, he knows, if he was to tell the whole story, he's coming down with me because he was the one that started it and he was involved in it … but he wants to put all the blame on me". Mr Telemete 1. Mr Telemete gave evidence, speaking English without any assistance of an interpreter. He was at the function, which finished sometime after midnight. He had been drinking most of the evening but he described himself as "affected but … still in control". He and about six others who had left the function with him were going back to Mr Autagavaia's house for some more socialising. As they moved off, Mossi attempted to provoke a fight but Mr Telemete ignored him and also tried to provoke the Australians who were walking on the other side of the road. Mr Telemete said that he yelled out to him to leave them alone and "piss off". However, Mossi continued to run backwards and forwards and act aggressively. Mr Telemete attempted to get him to stop but he ran away. There were exchanges with the Australians, with each side respectively yelling "Claymore" and "Mac Fields" (references to the suburbs where apparently they lived). Mossi had left the road but, Mr Telemete said, one of the Australians shouted out to him, "What do you want dickhead?" Mr Telemete said that he yelled out, "I'm just looking for my mate". One of the men yelled, "You're in Mac Fields, this is not Claymore", Mr Telemete said, "What about Mac Fields?" This exchange continued (as I understand it) for a short time when one of the men, shouted out, "Come on then, come over here". He said that he responded, "Piss off, stop, piss off". But they kept yelling, "Come on, come on". Mr Telemete said that he then crossed the road to try to settle things down. He said one of the men (I take it Mr Pettit) had run across the road (that is away from the other two) but it looked as though he was coming back behind him. His evidence continued – Q: …The other two guys, one had his back against the fence and one was on my left hand side. I've gone over there, "Mate, I don't want any trouble, I'm just looking for my mate so just go home. I got no dramas against you guys". Next thing I know the bloke that's on my left hand side has hit me from the side. And when he hit me the guy that's in front of me with his back to the fence I've grabbed on to him to try and stay up but I ended up falling to the ground anyway and I dragged him to the ground with me. I quickly tried to get to my feet and the bloke that hit me first has come in and tried to kick me. I've caught his leg and I pushed him back and started wrestling with the bloke that was on the ground with me. He was trying to hold me to the ground. I wrestled him off me. I got back to my feet and the bloke that hit me first he's rushing at me with punches and just throwing punches at me so I just started swinging. Q. So when you say you started swinging, who have you started swinging at? --- A. The bloke, the bloke that's coming at me. I just started swinging haymakers. Q. When you say haymakers, what do you mean by that? --- A. Just (indicated) like a freestyle swimmer would do in the swimming pool. Q. Overhead sort of punches, is that right? --- A. Yeah. Q. When you went over to these men, did you go over there because you wanted a fight? --- A. No, no. 1. Mr Telemete did not know who punched him. He was swinging the haymakers to the person who was standing up, who had originally punched him. The other person was still on the ground and every time he tried to get up, Mr Telemete said he pushed him back to the ground with his hand. He continued – A. The bloke kept coming at me. He's grabbed the back of my shirt. He started hooking me and kneeing me at the same time. I've punched him to the fence to try and pin him up against the fence to limit all his punches. Next thing the bloke's grabbed my shirt and he's pulled it over my head and just started going to town on me. While my shirt's over the head, my head, I've then reached up to the lattice to try and stop him from throwing all these punches at me. He's pushed me off and the lattice broke away. … Q. What did you do with the lattice? --- A. I just threw it to the ground straightaway and just started swinging again. Q. Had you been pushed back at this stage? --- A. What was that? Q. When he pushed you off had you been pushed back at that stage? --- A. Yeah, yeah. Q. Did you hit any of the men with the lattice at any stage? --- A. No, no. Q. When you started swinging again what happened? --- A. The bloke that was on the ground was coming at me. He's up by that time. He starts coming at me with fist punches, just started throwing punches at me. I've just had, like, how would you say it, hunched over and just started swinging haymakers, head down. One of my punches must have connected because one of the blokes dropped and I have turned to the guy that I had pinned against the fence, I've tackled him to the ground. And I tackled him to the ground, got back to my feet and kicked him twice in the legs [to deter the bloke from getting up and chasing me]. And when I turned, I turned around and seen Terry running over. Terry's run over and kicked the bloke I've just tackled. And, yeah, starting kicking him. He said that, when Terry started kicking the man, he was just hunched over trying to get his breath. He did not know how many times Terry kicked the man but was in the upper body region on the right side. He was asked what he did when he saw Terry kicking – Q. You say you saw Terry doing some kicks. What happened then? A. I have just walked – started walking away trying to catch my breath. Next thing I know I turned around again and Terry's fighting some – the bloke that's gone across the road. I've started yelling out to him to let – "That's enough, let's go home". They kept going. Kept yelling out, "That's enough, let's go home". He wouldn't listen. I just started walking off. Then Terry finally come over asked me if I was all right. He denied hitting the "third person" (ie, Mr Pettit). Mr Telemete said the left side of his face was sore and he had "a couple of bumps on the forehead". One or both of them were making snoring noises. Mr Telemete did not think at that time they were seriously hurt. He thought they would get up and walk home. He did not really think they had been knocked out but this was not something he thought about. He said he was "just out of breath, just too tired". He then walked away with Mr Autagavaia, going to the house of his mother-in-law. 1. In cross examination Mr Telemete said that he crossed the road because the men were "carrying on, calling me over". He said that he went to try and calm things down and denied emphatically that he wished to confront them – Confront them for what? What do I get out of it? I got no dramas against them. What did I do? They've done nothing to me. He denied being in an annoyed frame of mind or that he had started the fight. He said that he did not see Mr Autagavaia kicking any person other than the one on the ground. He thought that Mr Neville was the one who he tackled to the ground. He denied hitting Mr Mead with the wood or kicking him and did not see Mr Autagavaia doing anything to him. He had no explanation as to how he got injured. He did not know how many of the roundhouse blows connected, he said he just had his head down swinging. Objective circumstances 1. The starting point must be the findings implicit in the verdicts of the jury acquitting Mr Telemete of Mr Neville's murder and convicting instead of his manslaughter. It follows that Mr Telemete must be sentenced on the basis that he did not intend to kill Mr Neville or to cause him grievous bodily harm. The verdict should be understood as concluding that Mr Neville's death resulted from unlawful acts which an ordinary sober person in Mr Telemete's position would have realized risked inflicting serious injury. Since the significant blows (in respect of the cause of death) were those inflicted when Mr Neville was on the ground and hence not a threat, no question of self-defence can arise and what had earlier transpired did not need to be decided. Nor did it matter who of Mr Telemete and Mr Autagavaia inflicted those blows, providing the jury was satisfied (as it plainly was) either that Mr Telemete himself inflicted them or was complicit in Mr Autagavaia's striking Mr Neville in a way that a reasonable person would realize would expose Mr Neville to the risk of serious injury of some kind. Nevertheless, these facts are part of the objective circumstances of the offence and thus relevant to the question of sentence. It follows that the Court must decide them, bearing in mind that findings adverse to an offender cannot be made unless they are proved beyond reasonable doubt. 2. It was submitted by the prosecutor that I should find that Mr Telemete had inflicted most of the injuries to Mr Neville, pointing to the apparent acceptance by him in his conversation with Mr Autagavaia that he accepted primary responsibility for what had occurred. I do not think that this inference can fairly be drawn from what Mr Telemete said. It is no more, to my mind, than an acceptance that, as between himself and Mr Autagavaia, he was the first to cross the road and Mr Autagavaia only became involved because Mr Telemete had done so. 3. It will be obvious from the evidence summarised above that the eye witness accounts of the physical confrontation involving the Samoans and the Australians do not present a coherent picture. The only independent witness is Ms Turner, but it seems she saw neither the beginning nor the end of the fight, nor did she see Mr Mead or Mr Pettit. Furthermore, her view of the scene was incomplete and from a significant distance. The evidence of Mr Mead and Mr Pettit, though I think it was honest enough, cannot be accepted at face value. Both were very intoxicated, both made assertions that were demonstrably mistaken and otherwise rather exaggerated. Indeed, it is doubtful that Mr Mead has anything more than a vague general memory of what happened. None of this is surprising: it is widely understood that witnesses in these circumstances can only rarely give reliable and comprehensive accounts, even where they are observers as distinct from participants. I have already explained why Mr Autagavaia's evidence is unpersuasive and why only limited weight can be given to the evidence of what Mr Telemete and Mr Autagavaia said when they returned to the house, especially as to potentially important issues. 4. Mr Telemete's evidence was to the effect that he was attacked first by (as I understand it) Mr Mead, that he responded by punching him and the violent confrontation then developed as he described. So far as the offence involving Mr Mead (as distinct from that involving Mr Neville) is concerned, it is clear that the issue of self-defence was raised. The jury's verdict acquitting Mr Telemete of intentionally causing Mr Mead grievous bodily harm does not mean that the jury accepted that he might have acted in self-defence. Their verdict may be entirely explained by the medical evidence, which justified the conclusion that, although Mr Mead was injured in a potentially very serious way, in the result it did not amount to grievous bodily harm. It was therefore not necessary to decide the issue of self-defence. However, who started the violence is relevant to the question of sentence and thus needs to be considered in the context of sentencing Mr Telemete for the manslaughter of Mr Neville: it is part of the series of events that ended in Mr Neville's death. It is sufficient for me to say that I do not accept beyond reasonable doubt that Mr Mead's recollection about this issue is reliable. In my view, it is reasonably possible that Mr Telemete's account about his fight with the person I take to be Mr Mead is true, giving as much weight as I am able to the evidence of Mr Mead to the opposite effect. 5. As I have mentioned, I am persuaded by the evidence of Dr Hilton that Mr Neville's death was caused by positional asphyxiation when, at the time unconscious or, perhaps, semi-conscious, he was sat up against the fence by Mr Mead attempting to make him more comfortable. His dangerous state of consciousness resulted from the violence inflicted on him by Mr Telemete or Mr Autagavaia. 6. The prosecutor has submitted that the Court would find that Mr Telemete hit Mr Neville with lattice taken from the fence after he had knocked him out, using the wood to further attack him when he was unconscious and submits that this amounts to an aggravating feature of gratuitous violence (vide s 21A (f) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). First, the evidence does not support the submission that Mr Telemete knocked Mr Neville unconscious. Secondly, apart from the fact that pieces of the broken lattice were found on the ground at the scene, the only evidence that it was used to strike anyone comes from Mr Autagavaia (who was not a truthful witness) and the conversations in the garage which, as mentioned, are ambiguous. There were no injuries to Mr Neville indicating any significant blow with a hard object, let alone a piece of timber and its use is not supported by the evidence of Ms Turner. 7. At the end of the day, it is not possible to be sure about how the violence actually started or who struck the first blow. Although Mr Telemete approached the two Australians (Mr Pettit being on the other side of the road at the time, as I understand it), which is capable of being seen as an aggressive act, it cannot be concluded beyond reasonable doubt that he was not attempting to placate them, especially since he was outnumbered, Mr Autagavaia not being there at that time. I accept Mr Telemete's evidence, in substance, that there was something of a melee involving him, Mr Mead and Mr Neville and, later, Mr Autagavaia. When Mr Neville was brought to the ground by Mr Telemete, significant violence was inflicted on him when he was helpless. Given Ms Turner's description of events, and my view of Mr Telemete and Mr Autagavaia as witnesses, I think it to be probable that Mr Autagavaia was the one Ms Turner saw kicking Mr Neville many times and also caused the lacerations (possibly caused by stomping, although it must be born in mind that these injuries were not serious and the force, accordingly, quite limited). The deep bruising to the neck and the fracture of the hyoid bone, as well as the fractures of the upper back ribs, were caused by his kicks and were inflicted with considerable force. It follows from the jury's verdict that Mr Telemete was present during these assaults. He admitted kicking Mr Neville's legs (of which there was evidence demonstrated at autopsy). It will be recalled that Ms Turner saw one of the assailants (whom I take to be Mr Telemete) kick once. In light of the considerations affecting Ms Turner's evidence which have been mentioned, I am unable to be satisfied that this was a kick to Mr Neville's head; it may be that this was when Mr Telemete kicked Mr Neville's leg. Whilst I accept as reasonably possible Mr Telemete's evidence about his own assaults on Mr Neville, it is implicit in the jury's verdict (as well as being my own opinion) that he was aware of Mr Autagavaia's continuing forceful assaults to Mr Neville's upper body. 8. The jury concluded that the Samoans had tacitly agreed to the continued infliction of violence which an ordinary sober person would have appreciated could cause serious injury of some kind, that happened in this case to have been the state of compromised consciousness resulting ultimately in Mr Neville's death. The crucial point, therefore, is that Mr Telemete was criminally responsible, in the way I have described, for Mr Neville's compromised consciousness which ultimately led to his death. The jury did not accept, nor do I, that the ordinary sober person in Mr Telemete's position might have been unaware that Mr Autagavaia's assaults carried the risk of inflicting serious injury. However, the jury did not have to decide whether Mr Telemete actually realized this and I am doubtful that he did. In my view, it is probable that he acted as he did without thought of serious consequences, lashing out with Mr Auagavaia in the melee and continuing the attack even after Mr Mead and Mr Neville were incapacitated. It is likely that, when he left the scene, he did not believe that Mr Neville was seriously injured, although I think he gave it little or no thought. Subjective features 1. Mr Telemete gave evidence, which I accept was truthful during the sentence proceedings, in particular of his remorse for having caused Mr Neville's death. He is almost 31 years of age, was born in Samoa and came to Australia with his family when he was 18 years of age. He is the youngest of twelve children. At the time of the offence he was living with his parents and a sister. His father has suffered a stroke and, paralysed down one side, has been in a wheelchair or bed bound. Mr Telemete helped with such tasks as lifting him out of bed, bathing and feeding him. His earnings have been essential to enable the provision of adequate care and he feels very much the hardship that his incarceration will entail. He has always been in employment, initially in process or factory work and then driving heavy machinery in the construction industry and has supported his family. The pastor of the church in which he has been involved since his youth has written a testimonial which speaks highly of him and confirms his remorse. The employer for who he worked for some eight years as a plant operator also speaks highly of him. Aside from one trivial offence, Mr Telemete has no criminal record. It is not disputed that, except for the present offence, he is a man of good character. Whilst in prison on remand he has applied to undertake the SMART course, dealing with better decision making and a Drug and Alcohol course. 2. I am satisfied that Mr Telemete should be sentenced on the basis that this offence is an aberration and inconsistent with his otherwise good character. I am satisfied that he is genuinely remorseful and that his prospects of rehabilitation are good. Victim Impact Statements 1. A victim impact statement made by Mr Neville's mother, Marie Neville was read to the Court. It is a moving statement of the deep grief caused not only to her but also Mr Neville's father and the other members of his family. He is terribly missed, leaving an absence which is a source of constant pain. The law does not, cannot, distinguish between the values of lives unlawfully taken; the harmful impact of Mr Neville's death is an aspect of the harm done to the community by the loss of one of its number. I have considered this matter in accordance with the decision in R v Previtera (1997) 94 A Crim R 76. The Court extends to Mr Neville's family its condolences on their loss, accepting that nothing it can do will place a counterweight on the other side of the scales of their grief and pain. Mr Autagavaia's sentence 1. I have mentioned the basis upon which Mr Autagavaia was sentenced. Because Mr Autagavaia was a co-offender with Mr Telemete in the manslaughter of Mr Neville, the law requires me to have regard to the sentence imposed on him in determining the sentence I impose on Mr Telemete but I am nevertheless required to come to my own view of the facts. As it happens, since Mr Telemete's conviction followed a trial but Mr Autagavaia's did not, I have had the considerable advantage over the latter's sentencing judge of having heard considerably more evidence than was adduced before his Honour. I have mentioned that the matter proceeded before him on the basis that Mr Telemete commenced the violence and had inflicted the injuries that caused death and, this being undisputed, his Honour did not need to consider whether this was, in fact, the case and sentenced Mr Autagavia on that basis. His Honour also concluded that Mr Neville was struck with timber (though he seems not to have been aware that it was only lattice). For the reasons already expressed, I am unable to accept any of these findings for the purpose of sentencing Mr Telemete. This is by no means to be critical of the judge who sentenced Mr Autagavaia: my conclusions simply reflect the substantially differing evidence before the Court in each case. Mr Autagavaia's subjective factors (which it is not necessary to detail) are not significantly dissimilar to those of Mr Telemete. 2. The sentence imposed on Mr Autagaia is, nevertheless, still relevant since in the result the objective and subjective features of his case as found by the sentencing judge (so far as the manslaughter of Mr Neville is concerned) do not materially differ from those applying to that of Mr Telemete. Conclusion 1. The appropriate starting point is a term of 10 years imprisonment. Mr Telemete had indicated in the Local Court that he was prepared to plead guilty to the offence of manslaughter but this plea was rejected by the Crown, which put him to trial on the charge of murder, of which Mr Telemete was acquitted. As conceded by the prosecutor, the appropriate discount should be applied to his sentence in accordance with R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, here 25 per cent. The question is then whether the usual ratio stipulated in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for calculation of the non-parole period should be varied by virtue of special circumstances. This is the first time Mr Telemete has been in prison; the period of incarceration must be relatively lengthy; and he will need extensive supervisory support when he is released to ensure that the steps towards rehabilitation that he will have undertaken in prison are effective in the outside world. In my view, these factors constitute special circumstances justifying a longer period on parole than would otherwise be the case. 2. The sentence must commence on the date he was taken into custody, namely 17 January 2013. 3. The offender 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. ********** 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. Decision last updated: 09 July 2015