R v Makike [2003] VSC 340

5. In order to understand the role you played we must examine some of the background. The evidence is that you are a good and loving father. It was in part your concern for your son's welfare which, perhaps because he took a different view of it, led to an argument between you. The dispute arose during a party which began at about 4 p.m. on Saturday 8 June when both you and your son were affected by alcohol, and at a time when you were concerned about your son's perceived encouragement of another young relative to consume marijuana. You struck your son with your elbow in the region of the neck and head. Two or three blows were received. The medical evidence is that they were probably of at least moderate force.

8. You told Patai Urera that you hit Beniamina hard. As a result a vertical artery was ruptured and/or dissected. It is an injury to which individuals with elevated blood alcohol concentrations seem especially vulnerable. Beniamina's blood alcohol concentration was at the time 0.16 per cent. The injury to the artery resulted in a traumatic subarachnoid haemorrhage. He was probably dead within minutes thereafter. Yet in other circumstances the same blows of the same force may have resulted in nothing more than bruising.

11. The bare facts are enough to illustrate the starkness of the tragedy. Many other considerations must be taken into account when determining an appropriate sentence. You were born in the Cook Islands on 26 September 1965. You are therefore about to commence the 39th year of your life. After a blameless life in your homeland you and your wife Patricia migrated to Australia in 1998. One reason for the move was the hope of providing your family with a better future.

14. In about July 1998, not long after your arrival in Australia, you obtained a temporary position with Martogg & Company, a manufacturer of plastics. In May 1999 you were offered and accepted permanent employment with that organisation. You remain in the words of its operations manager a reliable, honest, contentious, trusted and respected employee.

17. You lacked the financial resources to bring all your family to Australia with you when you first arrived here. I have differing accounts of the process of migration. According to Mr Ian Joblin, a forensic psychologist, who interviewed you on 18 August last, you came to Australia with your wife and youngest son, Tommy, in 1998.

20. Your mother-in-law was then living in Australia, and you initially stayed with her. You obtained employment, and when you had raised, and saved, enough money, you sent for your next child, your daughter. She came to Australia - according to the version which you gave to Mr Joblin - in the company of your mother. Subsequently, you were able to pay for your father's arrival in Australia, together with your elder son, Beniamina.

23. You told Mr Joblin that you were unsure of the exact date when Beniamina arrived, but you believed it to be the year 2000. At all events, it seems that you were separated from Beniamina for two or three of the most important years of his development. It may well be that the years of separation were a cause of the apparently different relationship between you and Beniamina following his arrival in Australia. Before you left the Cook Islands, your relationship with him was good. Beniamina was then 13 or 14 years old. Young men often change markedly, as they move into their late teenage years, and this may have been the case with Beniamina. At all events, the son who came to live with you in Melbourne was not the son you left behind. He failed to show you the respect you thought appropriate. He adopted the local culture in ways you did not, and perhaps could not, emulate. More importantly, you formed a belief, which may or may not have been accurate, that he had begun associating with groups which you suspected were involved with drugs. You also characterised the membership of those groups as lazy and feckless. This troubled you. Your concern was compounded when your attempts to influence Beniamina's behaviour were rebuffed by him. According to Mr Joblin, that issue was further compounded by your belief that, from time to time, Beniamina smoked marijuana.

26. By June 2002, your relations with your elder son had, for these reasons, become strained. It is significant, and sadly ironic, that it was your own, and Beniamina's, consumption of another drug, alcohol, which, on 9 June, proved to be fatal. You had decided to hold a barbecue at your home, on the afternoon of Saturday 8 June. Beer was drunk. According to the account given by you to the police, you had, by about 2 a.m. the following day, consumed 4-6 large bottles. You told the police that you were nevertheless not intoxicated. Another six bottles, according to your account to the police, would be required to really produce that result. This indicates that while your family may have had a drug problem through Beniamina, it may also have had a drug problem through you. You confessed to Mr Joblin that at weekends you drank to excess. You accepted that this was a problem. You did not accept that the consumption of alcohol was a concern, or at least not a significant concern, during the working week. It seems that you based this assessment on the fact that, being aware of the effect which alcohol could have on your employment, you drink only two or three cans after work.

29. You acknowledged to Mr Joblin that you have a low threshold of tolerance to frustration, when drinking, and that this is reflected in a tendency to verbal aggression when you are under the influence of alcohol. You, however, deny that this makes you physically aggressive.

32. The events of the early morning of 9 June 2002 seemed to contradict this denial. They also cast some doubt on your assessment of the amount of beer you had consumed. Whatever the truth about that, I am prepared to give you the benefit of the doubt; but you were then, as you told the police, "pretty angry" and "really pissed off" with your son. Your record of interview with the police then records the following passage. Question: "Why did you hit him more than once?" Answer: "I was pretty angry with him." Question: "I beg your pardon?" Answer: "I was extremely angry." Question: "You were very angry with him?" Answer: "Yes."

35. The reasons for your anger seem to centre on aspects of Beniamina's behaviour that night. Yet it is difficult to get a clear picture of the events of that evening. The depositions include the accounts of a number of persons who were present; but they are inconsistent and incomplete. According to Beniamina's girlfriend, Jumai Vekine, he arrived at the party with her at about 7.00 p.m. By 9.00 p.m. the stereo system was playing "really loud" music. She says that you yelled at Beniamina to turn it down. You were, she says, screaming that the neighbours would complain.

38. Another person present at the party, Steven Charlie, also says that there was trouble with the stereo because you blamed Beniamina for turning up its volume. You were additionally concerned, according to Steven and to another witness, Aloene Mahia, that Beniamina was becoming aggressive and might start a fight. He had, in addition, left the party late in the evening to purchase some beer. He had gone by car. Although it seems that Beniamina was not the driver, the account given by Jumai Vekine includes a description of what she says was your very angry reaction to what you perceived as careless driving. According to Miss Vekine you directed your anger towards Beniamina.

41. Above all, there was the question of Beniamina's use of marijuana. You told the police that your son asked, or indeed tried to force, his cousin to "have a bit of dope". In her statement to the police Miss Vekine says that Beniamina told her that he had marijuana (she too called it "dope") with him that evening. According to her, Beniamina smoked at your home most weekends. At all events, it seemed that the particular trigger for your physical altercation with your son that night was the anger you felt because Beniamina would not listen to your concerns about his marijuana use. You told Beniamina to leave the party and your house. You followed him into his bedroom as he went to collect his things. A number of those at the party told the police that they then heard the sounds of a fight. Shortly afterwards you came out of the room. By that time Beniamina was fighting for his life.

44. All the evidence about what followed is consistent with a picture of your very great distress at Beniamina's condition and your part in causing it. You did what you could to revive him and to seek medical assistance. Your remorse, according to the evidence, was plain; and it has remained so ever since. Mr Joblin points to the consistency between your account of what happened and the medical and other evidence. This consistency, Mr Joblin says, is corroborative of that remorse. I accept that this is so.

47. Your offence is nevertheless a very serious one. You have killed your son. You have done so unintentionally but at the same time his death has resulted from an unlawful and dangerous act on your part. By your plea of guilty you have admitted that a reasonable person would have realised that you were exposing your son to an appreciable risk of serious injury. The law cannot maintain that respect for human life, which it must in these circumstances, unless a sentence of imprisonment is imposed upon you.

50. In my opinion the appropriate term of imprisonment is three years. Your barrister, Mr D'Arcy, has urged me to make an order suspending the whole of that sentence. He has pointed to the fact that you had never before been under police notice either in the Cook Islands or here. He also points out that your wife has pleaded for your continued presence with her and your two young children as you seek to realise what is left of your hopes for a better future in Australia.

53. Your employer and a number of persons who occupy positions of importance in Melbourne's Cook Islands community have written about your high standing both at work and in that community. You have also been given high praise for the personal qualities you possess.

56. Mr D'Arcy asked me to take into account, as I do, your early plea of guilty to the charge of manslaughter, to the strength and consistency of the evidence of your remorse, and to the adverse effects on your family were you to go to gaol. I also take into account that no weapon was involved in the events which led to Beniamina's death. Indeed, there is no evidence that the use of a weapon was ever threatened or contemplated. Another important consideration is that, although in a totally inappropriate way, your concern was to inhibit Beniamina's misbehaviour.

59. If I am to make an order suspending a sentence of imprisonment then I must before making the order explain to you the purpose and effect of the proposed order and the consequences that may follow if during the operational period of the sentence you commit, whether within Victoria or outside, another offence punishable by imprisonment. Firstly, a wholly suspended sentence must be taken as a sentence of imprisonment for all purposes, except disqualification from office or entitled to certain benefits, such as a pension. Secondly, if a suspended sentence is imposed upon you you will only actually go to gaol if during the next three years you commit in or outside Victoria another offence punishable by imprisonment. If you do commit another such offence within three years of today you will in addition be guilty of the offence of breaching the order suspending your present sentence. Proceedings may be taken against you in this court for that breach. Such proceedings will not be heard with a jury and may result in your being fined up to $1000 and to your being sent to gaol for the whole or part of the three year sentence which I intend to impose. Alternatively, the period of suspension may be extended for up to 12 months.

62. The court when dealing with you for a breach of the order suspending your sentence must send you to gaol immediately unless it is of the opinion that it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made. If you were sent to gaol the term of your imprisonment for a breach of the order suspending your sentence would almost certainly be served in addition to any other term of imprisonment to which you were subject.

65. I am bound to explain to you the consequences of a breach of the order suspending your sentence and I might ask Mr D'Arcy to check with you to ensure that you understand what those consequences are. Mr D'Arcy, would you mind speaking with your client in that respect.

MR D'ARCY: Thank you, Your Honour. I believe he understands the matters that Your Honour set out.

70. Mr Makike, these being the consequences of a breach of an order suspending your sentence, it would not be the whole truth to say that you will walk free if such a sentence is imposed. You will carry with you the knowledge of the consequences, if you commit another offence punishable by imprisonment. You will also continue to bear the burden of knowing that you were, in part, responsible for the death of your eldest child. By your failure, while affected by alcohol, to act appropriately when seeking to deal with what you saw as Beniamina's misbehaviour, or lack of respect, you have permanently damaged the future which by coming to Australia you hoped to secure for your family, and you will, I hope, be acutely aware of the absolute necessity to control your drinking, as well as the means by which you exercise your authority as a father.

73. The court must always be alive to the danger, when ordering that a sentence of imprisonment be suspended, that it will send a false message to the community. This is especially so when the sentence is passed following a loss of life. Let there, therefore, be no mistake. This case was, and is, exceptional. In particular, I have taken into account the fact that the blows you struck might, in other circumstances, have been virtually harmless; that you showed instant remorse, and have continued to be remorseful; that you were attempting to exercise parental authority, in circumstances where, on one view of the facts, that exercise was called for; that you have the respect of your employer and the local Cook Islands community; and that you have no previous history of violence, of any kind. Finally, I have, as I have said, taken into account the fact that your family, and indeed society in general, will be the poorer if you are sent immediately to gaol.

76. In these circumstances, I sentence you to three years' imprisonment. I order, pursuant to s.27 of the Sentencing Act 1991, that that sentence be wholly suspended.