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Supreme Court 21 September 2007

R v TAISENI, MOTUAPUAKA, LEOTA, TUIFUA

[2007] NSWSC 1090

Assault & violenceHomicide
SENTENCE JOINT CRIMINAL ENTERPRISE PLEAS OF GUILTY

Citation: R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090
Court: Supreme Court of New South Wales
Date: 21 September 2007
Judge(s): Latham J

Background

Four offenders pleaded guilty to the manslaughter of one man and to maliciously inflicting grievous bodily harm (GBH) upon a second man, both arising from a violent incident at the Bells Hotel in Woolloomooloo on 18 December 2004. The episode began when one offender, Leota, had a trivial dispute with the victim Meehan over use of a pool table. Rather than letting the matter rest, Leota recruited his three co-offenders and returned to the hotel after midnight to exact revenge.

During the attack, Motuapuaka and Leota threw hotel furniture at Meehan as he retreated behind the bar. A bar stool thrown by Motuapuaka struck Shane Miles, an innocent bystander standing behind the bar, forcefully in the head. Miles died as a result of that blow. Meehan suffered grievous bodily harm when Leota threw a chair at him.

The Crown had originally charged all four with murder. It accepted pleas to the lesser charge of manslaughter on the basis that none of the four intended to kill or inflict grievous bodily harm on Miles, and none acted with reckless indifference to human life. Their liability arose instead from participation in a joint criminal enterprise to harm Meehan, in the course of which an unlawful and dangerous act caused Miles's death.

  • What sentences were appropriate for each offender, given they were all party to a joint criminal enterprise but played different roles?
  • How should the court apply sentencing principles to a manslaughter conviction that sits at the lower end of the culpability spectrum (no intent to kill, no reckless indifference to human life)?
  • To what extent should pleas of guilty, subjective circumstances, and other individual factors differentiate the sentences imposed on each offender?
  • How should the GBH sentence and the manslaughter sentence be structured and sequenced for each offender, bearing in mind the two offences involved separate victims?

Decision

Latham J began by situating the offences within the well-established principle, drawn from R v Blacklidge, that manslaughter encompasses the widest possible range of culpable conduct and carries no fixed sentencing tariff. The starting point in every case, however, is that a human life has been taken unlawfully. Her Honour described the circumstances as arising from a "brutish, cowardly and uncivilised" response to a trivial slight, but acknowledged that the death was not intended and that the manslaughter fell toward the lower end of the spectrum of such offending.

The court considered each offender's role in the enterprise, personal circumstances, criminal history, and any mitigating factors, including the utilitarian value of the guilty pleas. Because Leota was identified as the direct cause of Meehan's GBH and as the instigator of the revenge attack, he received the longest manslaughter sentence. Motuapuaka, who directly swung the bar stool that killed Miles, also received a significant sentence. Taiseni and Tuifua, whose participation in the enterprise was assessed as less central, received lighter sentences.

The GBH and manslaughter sentences were structured as consecutive terms for each offender, reflecting the court's view that the two counts involved separate victims and distinct acts of violence. Two offenders, Taiseni and Leota, also had a heroin supply offence taken into account on a Form 1 (a procedural mechanism that incorporates an additional offence into the sentence for the principal offence without recording a separate conviction).

Orders Made

  • Taiseni: GBH (count 3): fixed term 2 years 5 months from 3 March 2005, expiring 2 August 2007. Manslaughter (count 2): non-parole period 2 years from 3 March 2006, expiring 2 March 2008; balance of term 1 year 2 months, expiring 2 May 2009. Form 1 offence taken into account.
  • Motuapuaka: GBH (count 3): fixed term 4 years from 3 March 2005, expiring 2 March 2009. Manslaughter (count 2): non-parole period 3 years from 3 March 2007, expiring 2 March 2010; balance of term 2 years 7 months, expiring 2 October 2012.
  • Leota: GBH (count 3): fixed term 4 years from 3 March 2005, expiring 2 March 2009. Manslaughter (count 2): non-parole period 3 years 6 months from 3 March 2007, expiring 2 September 2010; balance of term 2 years 10 months, expiring 2 July 2013. Form 1 offence taken into account.
  • Tuifua: GBH (count 3): fixed term 2 years 8 months from 3 March 2005, expiring 2 November 2007. Manslaughter (count 2): non-parole period 2 years 2 months from 3 March 2006, expiring 2 May 2008; balance of term 1 year 5 months, expiring 2 October 2009.

Key Takeaways

  • Manslaughter by unlawful and dangerous act, arising from a joint criminal enterprise, does not require proof that any offender intended to kill or cause grievous bodily harm to the person who died. Liability extends to all participants who contemplated that the enterprise might involve an act carrying an appreciable risk of serious injury.
  • A conviction for manslaughter always begins with recognition that a human life has been taken unlawfully. As confirmed in R v Blacklidge, the range of culpability within the offence is so wide that no fixed sentencing tariff applies, and each case must be assessed on its particular facts.
  • Where co-offenders share liability through a joint criminal enterprise but played different roles, individual sentences may vary significantly. The instigator of the violence and the person who directly caused each victim's injury attracted heavier penalties than those playing a more peripheral role.
  • Consecutive sentences were imposed for the GBH and manslaughter counts because the offences involved separate victims, even though they arose from a single episode of group violence.
  • The Form 1 procedure operated here to incorporate additional offending (heroin supply) into the principal sentence for two offenders, without requiring the court to impose separate sentences for those matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (definition of murder and manslaughter)

Cases:
- R v Blacklidge, NSWCCA, 12 December 1995 (broad statement of sentencing principles for manslaughter)
- R v Dodd (1991) 57 A Crim R 349
- R v Hill (1981) 3 A Crim R 397