DPP v Tupou [2020] VSC 377

3 At about 4 pm on that day, his sister tried to contact him, but she was unable to do so and she went out to search for him. She found him in the vicinity of the Geelong Ring Road near the Corio exit. He was in his car. He indicated that he had run out of petrol and had thrown away his mobile phone.

4 His sister became worried about him and thought that he was experiencing a mental breakdown from which he had suffered in the past. She managed to take him to the Swanston Centre at about 9 pm where he was admitted as a voluntary patient at about 1.30 am on Monday 28 October 2019.

5 At about lunchtime that day, Mr Williams contacted his sister, asking her to bring him some clothes and cigarettes. She did so and when the two of them went outside the Swanston Centre, he told her he felt really good and he had not meant to worry her. He told her that he had had a good night's sleep.

6 At 5.40 pm that afternoon, Mr Williams's sister gave a packet of cigarettes to the nurse and left. She was contacted again at about 8 pm from the Swanston Centre telling her that Mr Williams had gone out at about 6.20 pm for a cigarette and had not returned. She went to the Swanston Centre and then went to the Geelong Police Station and filed a missing person's report.

7 On the evening of 28 October, you, Setefano Tupou, your then-girlfriend, Phoebe Broederlow, had celebrated a high school graduation. The two of you met after that and decided to go down to the Eastern Beach at Geelong. You are captured on CCTV arriving at a petrol station in Hillside at about 10.24 pm and then departing at about 10.30 pm. The two of you then proceeded to travel to Geelong.

8 About 11.30 pm, your car was driven into the car park at the Eastern Beach, at Geelong. You were parked facing the beach. You were sitting in the car with the sunroof open, the driver's side and front passenger window open, and the driver's side door open.

9 A few minutes later, Mr Williams walked along the footpath. He went to a safety sign and started to punch it. The sign was about 15 or 20 metres away from where you were parked. The two of you started laughing at him and he heard you and then he screamed at you. He approached the two of you in the car and you then told him to, 'Fuck off'. Williams then punched the car window and kicked the driver's side door.

10 You, who by that time was sitting in the driver's seat, reversed the car and, with Mr Williams standing on the right-hand side of the car, you put the car into drive and drove at him intentionally and directly.

11 You struck him with the front of the car, causing him to fall backwards onto the road where he sustained a wound to the rear of his head. You then drove a short distance, you stopped and waited for Mr Williams to move and when he did not, you returned and found him lying on his back.

12 Mr Williams was having difficulty breathing and you pulled him onto the grass from the roadway. Ms Broederlow then called 000 requesting an ambulance. An ambulance attended at 12.02 am. Two paramedics found Mr Williams lying on the road, half on the gutter and half on the grass, with you and Ms Broederlow standing nearby.

13 You had taken off your T-shirt and you were using it to apply pressure to the deceased's head wound. One of the paramedics observed Mr Williams to be wearing one shoe with the other one approximately one or two metres away. They also saw a black baseball cap about five metres away.

14 Mr Williams was unconscious and non-responsive when the paramedics attended to him. The MICA Unit arrived and commenced providing treatment. Mr Williams was assessed as critical and he was conveyed to the Geelong Hospital arriving at 2.23 am. Because of the severe nature of his head injury, he was transported via ambulance to the Royal Melbourne Hospital arriving at about 4.20 am.

15 A full police investigation commenced which included an examination of the car that you had been driving and on 31 December 2019, a qualified mechanic found no faults or failures were able to be identified in relation to the operation of the vehicle.

16 A record of interview was conducted with you and you stated that,

When I hit him, I didn't hit him 'cause I was trying to get away from him. I hit him - I hit him with a car. ... I didn't - I didn't mean to, you know, I didn't think this was going to come out of it but I did hit him with intent.

I was expecting him just to get, you know, like a nudge, and at the end of the day, he'd get up and - just get up and go away.

Honestly it was just, I don't know how to explain it. I'm like you know, I'm not good at explaining things but just you know he was hitting the car and screaming at me and my Mrs and like she was shaking and she's screaming as well she's shook up and I don't know it just happened man like I can't explain it but I did that ...at that point I was scared for me but at the same time I was feeling protective towards my Mrs. I was thinking of her more.

Because it was scary man. The way he came up to the car it just I don't know he looked scary.

20 Mr Williams was pronounced dead on 30 October 2019 at the Royal Melbourne Hospital Parkville. A post-mortem examination was conducted on 1 November 2019 by Dr Matthew Lynch. Dr Lynch established that the cause of death was a head injury. The prosecution submitted that there were also significant injuries to his legs which were consistent with him being hit by a car.

21 I have read Dr Lynch's report in that regard. I am not satisfied that the injuries were significant but there is no doubt that he suffered injuries to the legs which were consistent with him being struck by the car and which must have caused him to fall.

22 Blood specimen samples were taken from Mr Williams. They have been analysed and he had in his system the presence of Midazolam, 0.1 mgs per litre, Lignocaine and Atropine, 0.2 mgs per litre, with no alcohol in his system. Briefly, they are the facts of the case.

23 I received victim impact statements from Daniel Williams, Mr Williams' brother, Jessica Williams, his sister, Summer Foster-Owens, his former partner, and Brodie Williams and Riley Williams, his children.

24 There is no doubt that Mr Williams was much loved by his family and he will be greatly missed. This is another example of the wide-ranging consequences of unnecessary and, I think in this case, unintended death of a family member.

25 The family would wish that I have the power to restore their brother, ex-partner and father to them. Of course, that is the one thing that cannot happen. I do my best without being in their position to understand their grief and suffering and I have taken the victim impact statements into account as the law directs.

26 The first matter which needs to be addressed in this case is where does that crime fit into the level of seriousness of the crime of manslaughter. Ms Garde-Wilson, who appeared on your behalf, submitted that I should regard this case within the lower range.

27 Mr Mark Rochford QC who, with Ms Foot, appeared for the prosecution, submitted that I should regard the offending as being in the mid-range. That submission was based principally on the proposition that you used and deliberately used a motor car as a weapon, and you admitted that you could have driven away. At the point that you were then driving the car, Mr Williams was not a threat to you.

28 I accept that you drove the car at Mr Williams, to stop him. I find that the car was being driven relatively slowly and you did strike him without any intent to cause him any serious injury. Rather to get him out of the way. You acted more for the purpose of deterring than you did to hurt him. You reacted to the situation you found yourself in, your response was instantaneous, however the consequences were tragic.

29 I was urged by the prosecution to compare this case with that of the case of The Queen v Donker.[1] I do not accept that there is any useful comparison between your case and that case. These events in their totality must have taken not much more than one or two minutes. Your conduct was brief, and reactionary, and I place it below the mid-range of seriousness. Because of other matters personal to you I do not need to engage in a more detailed analysis of the question of seriousness.

30 Setefano Tupou, you were born on 27 March 2001, and are now 19 years of age. You were 18 at the time of the offence. You are a young offender, you are of good character, you have no prior convictions and no other court appearances. You are a New Zealand citizen, your visa has been cancelled but even if that visa is reinstated, on appeal, after sentence the Minister will be obliged to cancel any visa that you have. I have taken those matters into account and in particular that you are going to have that particular difficulty hanging over your head during the period of your sentence.

31 I have taken into account your plea of guilty, your cooperation with the authorities and I am satisfied that you are genuinely remorseful. We commonly hear these days, of cases where incidents of this kind, those involved in it simply run away and leave the scene but you did none of that. You gave such assistance as you were able to give, and you were very frank in what you said to the police. In particular, that passage in which you describe that you had made the decision to drive the car at Mr Williams.

32 In relation to your personal background, you are of Tongan heritage and hold New Zealand citizenship having been born in that country. You came to Australia with your family when you were one year old. Your mother and father were both born in Tonga and they are both Australian citizens. Your mother operates a recruitment agency and your father has been on disability support since 1995 when he suffered a brain injury. You have three brothers and two sisters, who are also all Australian citizens, and are gainfully employed. Your sister Lillian aged 10, was adopted at birth by your family.

33 Up until recently you continued the relationship with Ms Broederlow. That relationship does not continue but you continue to be friends. You completed primary school at Deer Park North, and you commenced secondary education at Victoria University Secondary School. In year 10 you moved to Tarneit Senior College where you successfully completed VCE.

34 Much in this case will depend upon your psychological problems and I will come to that in detail in a moment. The other matter of some significance is the fact that you have a large amount of support within your local community. You are an active member of the Samoan Christian Church in Tarneit, where you attend every Friday night for youth night, and you attend on Sunday for a regular church service. You otherwise, as a matter of recreation, engage in sport, gaming, and are interested in mathematics. You have been on bail since 19 December 2019, and you have been in no trouble with the authorities and you have complied with the conditions.

35 On the plea, I received character references from the following:

• Makeleta Taunisila
• Tevita Kafoika
• Dr Pauline Manuatu
• Mele Tuakalau
• Stacey Farrugia
• Christine Moala
• Tui Luamanu
• Victoria Fili
• Luisa Palavi
• Ilaisa Palavi
• Fokotuulotu Tupou
• Honolio Tupou
• Veiatua Tupou

36 You were examined by Luke Armstrong and he provided a report dated 15 April, 2020, and he gave evidence before me on your plea. The following important matters emerge from his report. You are in the average range of intellectual functioning, and his report states:

Examination Findings

a. Summary and Context

The circumstances of your client's alleged offending are for the court to decide. You have asked me to provide a psychological opinion of your client. The summary of that opinion I have summarised as follows:

Your client presents with a supportive and nurturing family background. There are no features of Conduct Disorder, nor any aggressive, violent or explosive tendencies. With this observation in mind (supported also by standardised Personality Assessment: MMPI-2) there is also no evidence in my view of any personality disorder. Your client presents in contrast as a largely passive character, at worst there are tendencies toward a passive, dependent personality where there is some fear of abandonment.

Mr Tupou was exposed to a singular traumatic event at the age of 16 years. It is alleged that threats to kill were made to him, and he was 'king hit' without warning by family members of his girlfriend. At this moment and in the minutes following these alleged threats and assault your client believed he would be killed. In the weeks and months following this incident, your client's mental state significantly deteriorated. In fact, the type and course of your client's disturbance would in my view reflect a mental disorder as defined within the Trauma and Stressor Related Disorders of the DSM-5: Post Traumatic Stress Disorder. Of note and concern is that your client's condition has never been previously diagnosed or treated.

b. Circumstances of Alleged Offending

I am also of the view that features of this condition may well have some nexus in Mr Tupou's alleged offending which is now before the court.

Your client's increased hypervigilance and/or proneness to startle like responses emerged and became conditioned following a traumatic incident in 2017. Specifically, your client was allegedly threatened with death, he was shortly after assaulted. Immediately following the alleged threat to kill and assault, your client believed he would be killed. As a consequence, and without treatment your developed PTSD. As part of this condition your client developed cognitive or belief distortions, which included the entrenched view that the world truly is a dangerous place. Combined with entrenched startle like responses and hypervigilance your client reacted disproportionately 3 when confronted with a threat to his safety. Mr Topou recalls that he was 'scared' and that all he thought about at that moment (immediately prior to striking the victim with his vehicle) was to get the victim away from his car as a response to his own perceived threat to his safety. In my view your client's response was disproportionate when compared to a normal population, yet proportionate when considered within the context of his mental health condition.

c. Phone call to Mr Tupou's Mother

A telephone conversation with your client's mother on the 17th March 2020 confirms the following background information:

• Mrs Tupou recalls receiving a call from her son following the alleged assault in 2017, she reports that her son indicated that GGs father 'had tried to kill him'.
• Mr Tupou recalls that her son rang in a distressed state, in fact she recalls he was 'crying'.
• Mrs Tupou confirms that in the months that followed, she could not get her son out of bed, that he had changed and would not leave his room and refused to attend school.
• She believes he was frightened.
• Mrs Tupou indicated that her son has never been the same since this incident, and furthermore has struggled to integrate into any form of employment.[2]

37 As part of the proposed treatment for you, Mr Armstrong, whether it was done through a GP or not, had arranged for you to then see a psychologist and you were sent to a psychologist principally to try and develop some tactics for the dealing with your post-traumatic stress disorder. However, in the intervening period, you developed some suicidal ideations and you reported those matters to your treating psychologist, Ms Tracey Allen. A letter from her dated 22 May 2020 was tendered on the plea.

38 She regarded you as being cooperative in receiving treatment but she had been concentrating principally upon the questions of your suicidal ideation rather than any detailed treatment for your post-traumatic stress disorder but that has been ongoing and you have been cooperative.

39 I was urged on the plea to have regard to the principles that apply to persons with mental illness when they come to be sentenced for offences. Those principles are well-known in this State and have been, in most recent times, set out in detail in R v Verdins.[3]

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[4]

41 Ms Garde-Wilson's submissions arising out of the matters that I have already outlined that were personal to you together with the Verdins considerations, submitted that I should impose a Youth Justice sentence on you and I arranged for you to be examined and for a report to be provided to me as your suitability for Youth Justice.

42 The report received from Youth Justice dated 17 June became Exhibit 9 on the plea and a copy of it has been provided to the parties. That report has assessed you as being suitable for Youth Justice and deals in some detail with the negative aspects that might arise if you were to be detained in an adult prison.

43 That however is not the end of the matter. The prosecution had submitted at the time of the plea, that your offending was too serious for it to come within the range of a Youth Justice Centre sentences. They were given an opportunity to make comment on the report that I have just referred to but have made no comment about it, and I therefore assume that the submissions made at the plea are persisted with.

44 There are a number of considerations that I have to look at. As I understand the position, manslaughter is a Category A serious youth offence. Pursuant to s 32(2) and 32(3)(b) of the Sentencing Act 1991, I could sentence you to a Youth Justice Centre sentence if I am satisfied that there are exceptional circumstances that justify me doing so. Those provisions are:

32 Youth justice centre or youth residential centre order

(1) Subject to subsections (2A), (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and -

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

(2) In determining whether to make a youth justice centre order or a youth residential centre order, a court must have regard to -

(a) the nature of the offence; and

(b) the age, character and past history of the young offender.

...

(2C) If a young offender is to be sentenced for a category A serious youth offence, a court must not make a youth justice centre order or a youth residential centre order in respect of the young offender unless the court is satisfied that exceptional circumstances exist.

...

45 I am satisfied in your case that those exceptional circumstances do exist, and I find those exceptional circumstances borne out of the following material:

(a) the nature of your offending, and my assessment of the seriousness of it;

(b) the reports that I have received from Mr Armstrong and the evidence that he gave before me and the letter from Ms Tracey Allen;

(c) the fact of your youth;

(d) the support that you have in the community;

(e) your lack of prior convictions;

(f) your early plea of guilty and cooperation with authorities; and

(g) your clear remorse.

46 These items taken in the totality amount to exceptional circumstances.

47 I do not want this finding to be taken as meaning that I take the view that this is not serious offending, and that the death of Timothy Williams is to be taken lightly. None of us take that view including you.

48 I have taken into account the general matters that are relevant to sentencing, such as just punishment, denunciation and general and specific deterrence, moderated as I am obliged to do, by what is said arising out of Verdins and arising out of the mental illness from which you suffer.

49 Setefano Tupou, I sentence you to be detained in a Youth Justice Centre for a period of four years. I declare that you have served 50 days by way of pre-sentence detention and direct that this declaration be included in the records of the court.

50 I am obliged under s 6AAA of the Sentencing Act 1991 to set out what sentence I would have imposed had you not pleaded guilty. I would have sentenced you to 6 years' imprisonment, with a non-parole period of 4 years. I direct that this indication be entered into the records of the court.

51 The disposal order has been provided to the court and it will be signed and forwarded to the parties by email.

[1] [2018] VSC 210.

[2] Report of Luke Armstrong, Consultant Psychologist, dated 15 April 2020.

[3] [2007] VSCA 102; (2007) 16 VR 269.