R v Lefau [2004] VSC 481

3 You killed Cecilia by striking her in the abdominal area. The circumstances under which this occurred are as follows. Cecilia's natural parents were Pauline Nimo and Andrew Tuliloa. Her natural parents separated in December 2002 and soon thereafter you commenced a relationship with Pauline Nimo and you and she moved to Melbourne from Sydney, where you had both lived previously. You had three children aged 14, 6 and 4 from a previous marriage which had ended with the tragic death of your wife in 2002. You and Pauline Nimo commenced to live in Epping in about January 2003 with your three children and two of her three children, one of whom was Cecilia.

4 On the evening of Tuesday 30 September 2003 you, together with Pauline Nimo and the children, were at home watching television. The children were put to bed in the course of that evening. Throughout the evening you were consuming alcohol and later on Ms Nimo informed police that you had consumed nine or ten stubbies of Carlton Cold beer throughout the evening.

5 After the children fell asleep you and Ms Nimo decided to go to a local petrol station to get some money from an automatic teller machine at that station. You left the children alone in the house. You went to the nearby service station and found that there was no money in the account which you endeavoured to access. You then had difficulty restarting the car in which you had driven to the petrol station. A motorist who was also at the service station offered you a lift home. You accepted his offer. You left Pauline Nimo at the service station.

6 You went home and found a key which you believed would start the car. At about this time Cecilia awoke. You picked her up and took her outside with you. She was crying. As she continued to cry you struck her in the stomach region. You then continued on foot to the service station with the crying baby and handed her to her mother.

7 You and Pauline Nimo then drove the car to another service station and another ATM in the Lalor Shopping Plaza in a further attempt to withdraw money. You did not inform Pauline Nimo of what you had done to her child. You both returned home and Cecilia was put to bed. Ms Nimo then took a shower and as she left the shower heard you talking to Cecilia. When she got out of the shower she heard you saying, "Cecilia, Cecilia, wake up baby." You were holding Cecilia in your arms and patting her on the back. Ms Nimo observed that Cecilia was not moving and that her eyes were closed. She took Cecilia from you and observed that she was not breathing. She placed a wet towel on her forehead and, because your English was not good, Ms Nimo contacted 000. Upon the attendance of emergency services, which I might add occurred within minutes of the phone call, no pulse was detected in Cecilia nor was she found to be breathing.

8 She was taken to the Emergency Department of the Northern Hospital in Epping where she was examined by a doctor. Upon being asked by the doctor about what had happened, you told the doctor that when you arrived home from attending the first ATM you found Cecilia to be crying and shortly after that you said you left the premises cradling the baby in your arms. You said that you tripped on the concrete path leading from the front of the unit to the roadway. You said that you broke your fall with your hand and tried to hold the baby to your body. You said that the child was crying and holding her face.

9 The emergency treatment provided by ambulance officers and by the medical staff at Northern Hospital could not save the life of Cecilia, who was pronounced dead at 2:29 a.m. on 1 October 2003.

10 Later that morning Dr Michael Burke, a specialist forensic pathologist, conducted an autopsy. He found that Cecilia had been a well nourished infant, weighing 12 kilograms. He observed a number of injuries to her but in particular a region of bruising measuring 4.5 x 2.5 centimetres to her right flank area, which he concluded had occurred in consequence of blunt trauma.

11 Upon internal investigation Dr Burke found injuries consistent with blunt force to the abdomen. He found a large amount of blood in the abdominal cavity. He found a ruptured small bowel mesentery, and he found a rupture to the tissue of the liver. He concluded that Cecilia bled to death due to the blow to the abdomen which caused, amongst other things, the rupture of the mesentery.

12 In relation to the degree of force required to produce the injuries found, Dr Burke has provided evidence that the degree of force required to cause the abdominal trauma which led to the injuries and the death of Cecilia was significant.

13 On the morning of 1 October 2003 you provided a statement to police. You told police, as indeed you had told the doctor at the hospital, that upon your return from the service station to your home you found Cecilia crying. You told them you picked her up. You told police that upon running back to the service station and whilst holding Cecilia you fell.

14 Following this statement a record of interview was conducted with you with the assistance of a Samoan interpreter. In that record of interview you said that what you had told police already was true and correct and that you did not wish to add to it. Otherwise you made no comment to questions put to you.

15 Subsequently on 28 November 2003 you were again interviewed by police. The autopsy findings were available by that time and the police had grave doubts as to the veracity of the original version of events given to them by you.

16 On the occasion of your interview on 28 November 2003, you admitted that you had told lies to them about Cecilia suffering injuries when you fell whilst carrying her in your arms. You said that at the time you did not want to say what had really happened because you thought the police might "get mad" because you should have told Pauline Nimo what had happened. You told police that the true story was that you had picked Cecilia up from the house as she was crying. You had carried her outside and hit her once in the stomach. You were unable to say whether you had your hand open or clenched in a fist, although Ms Nimo asserts that on two occasions that day when you spoke to her by telephone from the police station you said you struck Cecilia in the stomach with a fist.

17 I have looked at the videotape of the record of interview and I note that on at least two occasions in the course of the interview, when you demonstrated how you struck Cecilia, you did so with a closed fist.

18 In the end result whether or not you hit Cecilia with a clenched fist does not require to be determined by me. On any view you struck her with significant force indeed.

19 You told police that when you hit Cecilia she was not crying much but that after you hit her she "did cry loud, louder". You told police that after you returned to the house with Pauline Nimo you heard Cecilia crying and then you thought she was not breathing. You told police that you did not intend to cause Cecilia's death. Your plea recognises, and I accept, that you did not have any intention to cause her death; nevertheless you were in a position of trust, Pauline Nimo trusted you to look after her children. You were in a position of power which you abused, the child, Cecilia, being totally vulnerable in your hands.

20 I have read the victim impact statements filed with the court by the mother of Cecilia, Pauline Nimo. She says that she cannot forget what happened that day and to her mind the fact that you lied to her aggravates her pain. I have no difficulty in accepting that she will suffer the loss of her young daughter grievously and that her grief will continue for a considerable time into the future, if not for the rest of her life. Likewise, Cecilia's father Andrew Tuliloa has expressed his pain at the loss of Cecilia.

21 The prosecution has accepted your plea of guilty to the crime of manslaughter on the basis that your conduct was an unlawful and dangerous act. As I have said, that means that the prosecution accepts that there is no evidence of any intention on your part to cause the death of the child; however, on any view the cowardly striking of a young child by an older much more powerful person in a position of trust, as you were, is serious indeed.

22 Nevertheless, as your counsel Mr Russell has submitted to me, there are a number of mitigating factors.

23 First, you have pleaded guilty to the crime of manslaughter. As a matter of law you are entitled to have that matter taken into account in your favour in a transparent manner and I do so take it into account. By your plea of guilty the community has been spared the cost and inconvenience of a trial of this matter. Much more significantly, in my view, the victims of your crime, and in particular Cecilia's mother, have been spared the grief and unhappiness associated with a trial.

24 Your counsel, Mr Russell, submits that the tragedy that occurred was as a result of a combination of factors.

25 First, he relies upon the fact that your judgement was impaired by the consumption of alcohol and, further, that there were financial strains in the family. He points out that the visit to the ATM at the petrol station was for the purpose of determining whether welfare pension payments, to which you and Ms Nimo were entitled, had been paid into your accounts. The money had not been paid into your accounts and Mr Russell submits that that matter, together with the failure of the car to start, caused you a level of frustration. It is, he submits, in this circumstance that the evidence establishes that the offence took place. I note that in the course of your record of interview you denied to police that you were angry; however, the only explanation for your behaviour is that in a setting of financial difficulty, together with the motor vehicle problems, mixed in with the consumption of alcohol by you, the crying child caused you to lose control of your temper. Although that might be an explanation, it is hardly an excuse. You were a mature person with considerable experience with children. Objectively, you should have known, as your plea recognises, the risk that your violence might cause Cecilia at least serious injury.

26 Mr Russell submits that notwithstanding the fact that on the night in question you did not confess your total involvement to medical officers at the hospital, you did accept partial responsibility for the child's death and, as he points out, you later confessed fully to investigating police on 28 October 2003.

27 Mr Russell submits that your plea makes it clear that you suffer remorse and that you are ashamed and embarrassed as a consequence of your behaviour on the night of the death of Cecilia. I accept that you are remorseful and indeed, as Mr Russell submits, ashamed.

28 You have no prior convictions. Accordingly, I sentence you as a person of previously good character.

29 A report of consulting psychologist Mr Jeffrey Cummins, dated 19 October 2004, was tendered before me. That report sets out a considerable part of your background.

30 Mr Cummins interviewed you at Port Phillip Prison on 12 October 2004. Within the constraints of speaking to you through an interpreter, Mr Cummins obtained a detailed history. You were born in Samoa on 29 September 1962 and you are thus now 42 years of age. You do not speak English well and require an interpreter for any sophisticated or more than basic conversation.

31 Your parents are alive and live in Samoa. You have six brothers and six sisters. You have had little, if any, formal education. As a teenager you worked in market stalls in Samoa, but subsequently settled in New Zealand in approximately 1980 where you worked in an aluminium window factory. You have provided a history of having been employed for most of the time you were in New Zealand. You left New Zealand in 1996 and came to Sydney.

32 You were previously married and, as I have already observed, you are the father of three male children. Your wife became ill in approximately 1998, at which time you ceased work because of her illness and became in receipt of a supporting parents' pension. She died of a brain tumour some years later.

33 Currently your three boys, who are approximately 15, 7 and 5, reside with your brother, Philip, who lives in Campbellfield in Victoria.

34 Mr Cummins had difficulty in his discussion with you in ensuring that you comprehended all of the discussion. He, however, was satisfied that you are psychologically struggling to come to terms with your current situation.

35 You told Mr Cummins, as indeed you told police, that it was never your intention to cause Cecilia's death. Although Mr Cummins was unable to establish that you suffer from any intellectual incapacity, he did form the view that you are intellectually unsophisticated.

36 Tendered before me by consent were a number of references. Your father, Atonio Eli, provided a letter dated 15 October 2004, whereby he spoke of your sorrow for what had happened and the fact that it is not in your nature to harm anyone intentionally. A reference was written on your behalf by your brother, Filipo, as well as your sister, Telezia. Each of them speaks well of you. A younger brother, Mkaele, also prepared a reference speaking well of you, as did Pastor Lauaki, who has known you since the year 2000. Pastor Lauaki considers you to be honest and committed and a leader of the church community.

37 The references which have been put before me speak well of the regard in which you are held by your family and others in your community, and of the support which you will receive when you are eventually released from prison.

38 I accept that the cultural differences between you and the majority of persons in prison and the difficulties that you have with the English language will make any term of imprisonment which you are to serve all the more difficult for you by reason of your isolation and perhaps also by reason of your likely incapacity to undergo many mainstream prison programs and activities. I accept that separation from your three young children who, as I have noted, have already lost their mother in tragic circumstances, will be a heavy burden for you, notwithstanding the care which is no doubt being bestowed upon them by your large and supportive family.

39 Nevertheless, as well as matters personal to you such as the chances of your rehabilitation, I must take into account the question of general deterrence. The death of a defenceless child as a result of an assault by a mature adult is a most serious matter. Regrettably the death of young children in the hands of larger more powerful adults who are responsible for the care of such children is not a rare event in our community. Persons in positions of trust and power over innocent children must be deterred from abusing that trust and power by the infliction of violence upon them. You must learn that to take your frustration out in your alcohol affected state upon an innocent child is intolerable behaviour and you must thus be deterred from venting your anger on innocent persons in such a way. Your conduct must be condemned by the court on behalf of the community. The principle of punishment applies to you and you are to be punished for your conduct.

40 In all of the circumstances I have no alternative but to impose a term of imprisonment upon you. You have served 367 days in pre-sentence detention. Pursuant to s.18(4) of the Sentencing Act I declare that the period of 367 days has already been served under the sentence I propose.

41 For the manslaughter of Cecilia Tuliloa I sentence you to eight years' imprisonment. I direct that you serve a minimum of five years and six months' imprisonment before being eligible for parole.

42 Remove the prisoner.

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