R v Pota [2006] VSC 248

13 At that point Pota desisted from his attack on Barnett and turned to where the other two young men were giving Kwan a beating on the train tracks. It is not clear how Kwan found himself on the train tracks. It is relevant that Pota did not get involved in that fight and was one of two people who intervened to stop the assault of Kwan. It is also relevant that having helped to stop the assault on Kwan he then helped Kwan back onto the platform by putting his hands together to provide Kwan with a type of step on which he could place his foot and climb back up onto the platform.

14 Barnett fell straight back. His feet did not move. His head struck the platform. His skull was fractured and his brain was injured. It was as a result of those injuries that he died on 17 June 2004.

15 The first issue to consider is the objective gravity of the offence. The Crown has submitted that the offence in this instance was a very serious example of the crime of recklessly causing serious injury.

16 The seriousness of the injury caused is a matter to be taken into account.[2] Clearly the head injuries were extremely serious. As to Pota's actions, I accept that the punch was thrown without any real premeditation on his part. I am satisfied that Barnett's behaviour contributed to the happening of the events but it does not excuse Pota's actions. Consistently with the jury's finding of not guilty on Count 2, I consider that it should be found that the decision to punch Barnett was a spur of the moment decision taken only when Barnett bent forward and put his face and head "in the face" of Pota. I am also satisfied that the punch was thrown without any warning. Barnett was also in a vulnerable position bending forward and on the edge of the platform with the result that any act of violence such as a punch might well result in him falling to the rail tracks.

17 There was much debate in the course of the trial about the force of the punch. Pota in his record of interview told the police that it was "not that hard". The Crown sought to establish that it was a heavy punch relying in part on the evidence of Dr Cordner and his evidence about the force needed in the punch to move the 77 kilograms of Barnett backward beyond the line of the centre of gravity of his body so that it would keep going backwards. In the end, that debate probably does not matter. What occurred was a punch that was of sufficient force to achieve that result. It was not a slap on the face, it was a punch which, as the jury found, Pota realised would probably cause serious injury. At the same time, there was only the one blow and the very high level of alcohol in Barnett's blood would have contributed to the fatal injury because it would have adversely affected his ability to protect himself. Pota was aware that Barnett had been drinking, but would not have been fully aware of the extent of its effect.

18 Making due allowance for such matters, I nonetheless consider this case is a serious example of the offence. It must also not be forgotten that his antecedent history to which I will refer "illuminates" his "moral culpability" in this case.[3] He had had it brought home to him on more than three occasions that this sort of behaviour is wrong.

19 I have received victim impact statements from Barnett's mother and a brother which bring home the pain and the trauma for those who lose a much loved member of the family and who will have to cope with that loss for the rest of their lives.

20 Turning to the issue of general and specific deterrence, counsel for Pota conceded that general deterrence was a significant matter because of the prevalence and the undesirability of this sort of conduct. That concession is properly made. It was made, however, in an attempt to downplay the significance of personal deterrence in this instance. In my view, however, personal deterrence is a significant matter to be taken into account in determining an appropriate sentence in this case. I say that because of the appalling nature and pattern of prior convictions of Pota.

21 On 10 April 1999 when he was aged 17 years and 10 months he was involved with a number of other youths in a brutal affray in which he and his companions attacked three people in a motor car in Glen Iris. The incident involved repeated pursuit of and assaults upon one particular individual named Holland and the assaults involved punching, kicking and hitting with poles and other weapons while he was on the ground. Holland died as a result of a car accidentally running over him.

22 On 22 May 1999 Pota was involved in an incident at a party in Ashburton when he smashed a stubbie on the face of a woman. She fell to the ground but he continued to attack her punching her repeatedly to the head as she lay on the ground. He then attacked her boyfriend punching him to the head and with others assisting, punched and kicked him while he lay on the ground. In relation to that charge he was placed on bail at the Ringwood Magistrates' Court.

23 On 3 December 1999 when then aged 18 years and six months, he became involved in an argument between two groups in Ashburton. This culminated in Pota and the other offenders pursuing the victim who was drunk and others. They set upon the victim, punching and hitting him with pieces of wood while on the ground.

24 On 13 October 2000 he failed to answer bail concerning the Ringwood Magistrates' Court matter. The Ringwood Magistrates' Court matter came on for hearing on 14 November 2000 and Pota was sentenced to a community based order. On 5 July 2001 he breached that order by non compliance and a suspended sentence was imposed with a two year operational period. He was also fined for breach of the community based order.

25 On 13 September 2001 the first matter concerning the attack in Glen Iris came on for hearing before Judge Cullity in the County Court. Pota pleaded guilty and received a sentence of 12 months CBO for the offences of affray and recklessly causing serious injury. Judge Cullity found that there was no evidence of remorse in relation to the first offence in Glen Iris. That finding was heavily influenced by the fact that only approximately one month after that offence he had engaged in the vicious attack on the young woman at a party. His Honour, however, took into account that there had been undue delay in processing that case - two years and five months. His Honour noted that while Pota was employed, he had not yet made a firm resolve to avoid further conflict. At the time Pota was assessed for a CBO but the report stated that he was not suitable. His Honour gave him a CBO, however, because of problems of parity and because he had not been involved in offences of violence for some two years.

26 On 7 February 2002 Pota was dealt with by Judge Cullity for breach of the CBO he had ordered. That order was cancelled and he was placed on a 12 month bond with a conviction and fined for breach of the CBO.

27 On 22 July 2002 Pota was sentenced by Judge Anderson concerning the second set of incidents that occurred in Ashburton. His Honour sentenced Pota to nine months' imprisonment wholly suspended with an operational period of 18 months for the charge of recklessly causing serious injury. Pota was then aged 21 years. That operational period expired on 22 January 2004.

28 Five months later on 4 June 2004 the incident occurred in the present case in which Pota punched Bruce Barnett at the Holmesglen Railway Station causing him serious injury.

29 The prior principal offences were appalling and Pota was given every opportunity by the courts notwithstanding his repeated failure to comply with the orders made. This was no doubt largely because of his youth. In addition, however, he was able to point to the fact that he had not been involved in any violent offences that had come to the attention of the authority since December 1999.

30 It may also be said now on his behalf, however, that there were encouraging signs in and between 2002 and early 2004 in that Pota appeared to manage to avoid problems with the law while serving the suspended sentence for the incident that occurred in Ashburton. In addition, the events in the present case themselves showed some significant differences from his past pattern of conduct. In this instance he struck one blow only and, rather than join in the attack on Kwan, as was the pattern in the earlier offences, he stopped his friends in that attack and then helped Kwan back onto the platform. It may also be said, however, that the events in question in this case occurred only some six months after the suspended sentence was completed and occurred following upon him mixing with some of the people with whom he had got into trouble previously in circumstances where, as then, alcohol appeared to have played a part.

31 It is reasonable to conclude that while he initially failed to control his anger and behaviour, he managed quickly to regain his self-control and to realise that what was happening was wrong and stop the assault on Kwan and help him back onto the platform. This is no comfort to Barnett or his family but does raise the possibility that there had been some improvement in his self-control and attitude. The problem remains, however, that he was not able to stop himself physically attacking someone who made him angry.

32 Thus, notwithstanding that he had not apparently committed a violent offence since December 1999, Pota was in 2004 still easily provoked and still had problems with managing his anger. Protecting the community and deterring him from such conduct, therefore, are important issues. The assessment of their significance for the sentence in this case, however, requires an examination of Pota's history prior to the incident and of what changes have occurred in him since June 2004.

33 Pota comes from an otherwise law abiding family. His father was trained as a carpenter in Tonga but both his parents work in Melbourne as cleaners. He has a sister who is employed by Vodafone. He has a younger brother who has also been in trouble who is now working as a council worker.

34 It appears that he grew up in a home where discipline was enforced by physical punishment. This was said with his parents in court and was not disputed by the Crown. This may help to explain Pota using a physical response to deal with his own problems but does not reduce in any way the concern about the need to address the issue of personal deterrence.

35 Pota went to a series of primary and secondary schools. He repeated Year 7 and also did Year 8, 9 and 10 but he did not complete Year 11. He left school and commenced work as an apprentice carpenter. Between the ages of 17 and 19, when he committed the earlier offences, he had an apprenticeship at Abbotsford which he did not complete. He was then still living at home. He later worked for one year for a furniture manufacturer, Global Furniture, making frames and then for some six to eight months for a company called Commander Portables making portable rooms. The events in question in this case then occurred and he was jailed. He applied for bail on Christmas Eve 2004 and it was refused by the magistrate. He did not get bail until after the committal and, in fact, had spent a total of 384 days (5 June 2004 to 23 June 2005) in custody prior to the verdict. After he was released from jail in 2005 he worked at the Grand Prix for Linfox putting together tents and facilities. He obtained a variety of licences for operating cranes, scissors and forklifts, transport management and as a dogman and rigger. He has a red card so that he can work on unionised sites. Except when working for Global Furniture, he lived with his parents.

36 He now has a girlfriend of eight months who he sees everyday. He does not now mix with the former friends who were involved in the previous incidents. He has a hobby of producing music and has had some success with music which he has placed on the Internet. He has enjoyed playing rugby in Box Hill and basketball in Jordanville. He apparently goes to the Wesley Church in the city about once a month with his parents. He does not presently take drugs. His drinking was a bit of a problem in the past but I am assured that it is not so anymore. He has guaranteed work for each year at the Grand Prix. Counsel stated that his ambition was to do his time and then get on with his life.

37 It also appears that he has changed significantly from the teenager who committed the appalling offences noted above in 1999. No doubt a number of factors have come into play in bringing about this change including the maturing process that can occur between 18 and 25 but, on the evidence, a critical factor has been the work of the youth unit at Port Philip Prison and in particular that of Ms Hooker who set up the unit and co-ordinates all of its programs. The unit was originally set up to deal with young offenders between the age of 18 and 25 who had not been to prison before and who were on remand. It was designed to keep them safe and so the primary goal is suicide and self harm prevention. Its secondary goal is to reduce recidivism. Pota came to the unit on 22 June 2004 and spent a year there. Ms Hooker had daily contact with him from Monday to Friday. She said that he was extremely keen to participate in programs and to work out the reasons why he had got himself into the difficulties he had. He was polite, well mannered and she described his behaviour as being appropriate. She said he did not cause them any problems. She said in fact he was identified very early on as a potential prisoner mentor because of his positive attitude and behaviour and his ability to take on what he was learning in the program. Prison mentors provide support to young prisoners and assist staff with suicide and self-harm prevention in young offenders. Their role is to identify young offenders who are having difficulty and refer them to appropriate services so they can be supported and assisted. She said that to be a mentor you have to be incident free within the prison system for six months. She said you have to be able to demonstrate maturity and responsibility. You also have to demonstrate a knowledge of issues that affect young people and must have excellent communication skills. You have to be a role model within the unit. You have to be able to identify small or slight changes in a young person's behaviour or attitude and to be able to talk to them about the issues that are troubling them. Mentors also have to be able to make a judgment as to whether professional help is needed. He was in fact made a mentor but shortly afterwards received bail. Ms Hooker also referred to an incident of violence that occurred in the prison on 12 July 2004, approximately one month after his arrival there. It involved three young Asian prisoners, Pota and his brother. She said that he and his brother were in a cell and three young Asians came in to attack them and assault them. It was established afterwards that Pota's part in it had been to try to stop the fighting and resolve the problems. The other prisoners were charged and removed from the unit but Pota remained in it. Ms Hooker said that his handling of that situation was consistent with the other qualities that she had observed.

38 While in the unit he has participated in two courses concerning anger management that are available in the unit. They are quite involved. Ms Hooker said that in the time that she observed him in the unit he was able to demonstrate on a regular basis that he had control of and appreciation of tendencies to become angry and react wrongly. She said that bearing in mind there were 72 young prisoners in the unit, conflict does occur but he was able to demonstrate an ability to either stay away from it or to respond in a positive way and assist in the resolution of the conflicts. She said that assuming Pota was required to serve a further term in custody, she would be making a submission to sentencing management to have him serve that time in that unit and complete his sentence as a mentor in that unit, he having completed the prison mentor training and commenced that role.

39 Ms Hooker was cross-examined by counsel for the Crown about the mentoring possibility. She indicated that Pota, who is now 25, would not normally be placed in the youth unit but she would be recommending that he be placed there as a mentor. She said that mentors come from a range of different backgrounds. Some of them have quite a large criminal history, some have none. Some may have just one prior conviction. They look for a mix of life experience, culture, background and age. The youngest mentor that she has had was 21 and the oldest was 45. In respect of his anger control in particular, she said that she accepted that while there were very stressful situations in the prison environment, the demands and challenges there are completely different to those in the broader community.

40 There is other evidence relevant to Pota's progress. A final report from C.R.E.D.I.T./Bail Support Program tendered in evidence states that he was placed on the program on 23 June 2005 and was subsequently referred to the Taskforce in Moorabbin for individual counselling for alcohol abuse and anger management issues provided by Mr Lowe. Between 14 September 2005 and 18 January 2006, over nine scheduled sessions he attended five, one of which was a rescheduled attendance. The report noted that Pota indicated that he had missed some reviews because of work commitments including casual work laying carpets and work as a storeman. The report noted that he had commenced full time training with Linfox on 2 December 2005 with a view to working at the Grand Prix between 13 February 2005 and April 2006. The report stated that he was not drinking and was occupying himself by working, spending time with his family and playing sport. Also tendered was a report from Jan Donohue, case manager personal support program at Echo Australia Inc. Her work involves assisting clients by offering rehabilitation through personal support and counselling support. Pota was referred to Centrelink and commenced on the personal support program on 4 January 2006 and she stated, as at 15 June 2006, he was actively participating in the program. She described him as presenting as "a quiet man of few words, highly motivated towards change. He has demonstrated his ability to set and obtain desired goals in a short period of time". She described him among other things as having changed his lifestyle by removing himself from his previous cycle of drinking. She expressed confidence in his "ability to enhance on recent positive developments".

41 Also supplied to me were the certificates given to Pota on successful completion of various programs while in custody. They included Anger Management 1 and 2, Offender Behaviour 1 and 2, Financial Management, Youth Cannabis Education, Prisoner Mentor Training Program, Consequential Thinking, Alcoholics Anonymous, Communication Skills, Viral Hepatitis and several programs introducing participants to aspects of the legal system. Pota also attended and received competency certificates in occupational health and safety and asset maintenance (cleaning operations) from the Kangan Batman TAFE. I note also that the chaplain at Port Philip Prison supplied a letter dated 14 December 2004 stating that he had known Pota in his role as chaplain for six months and that he had regularly and frequently attended the weekly church service and was always most helpful, attentive and respectful. He said he also "seems most prayerful".

42 Considering this material and the history of Pota, there appears to have been a very considerable change in his behaviour and attitudes. He appears to have gained maturity since his teenage years. The likely factors include the consequences he has experienced following the appalling incidents in his teen years, the maturing process that occurs as a young man grows older, and the work of those who have worked with him in the penal system. It would also be surprising if the consequences of his actions on 4 June 2004 have not had a profound impact on him.

43 In those circumstances, whilst personal deterrence remains relevant as a sentencing objective, the evidence suggests that it is not a major concern. The same may be said as to protection of the community. The above material is also highly relevant to the issue of the rehabilitation which the sentence should facilitate. In the present case, having regard to his history, it is likely that more needs to be done in that regard and Pota will need ongoing support. But because Pota's rehabilitation appears to be very well advanced, any sentence imposed should facilitate not sabotage that process. It is in the community's interest that it be successful.

44 I accept that there is genuine remorse on his part and he has to live with the consequences of his reckless act. I accept that that remorse was made clear during the trial by the fact that from the outset of the hearing, his counsel made it clear to the jury that his client invited them to convict him of recklessly causing serious injury. It might be said that the fact that he did not plead guilty to that charge detracts from the offer as evidence of remorse but he cannot be criticised for following what was no doubt legal advice. In addition, it seems to me that the evidence of his conduct ever since he went into custody on these charges points to him wanting to make amends. His remorse warrants some clemency and is, of course, relevant to the issue of rehabilitation.[4]

45 The offer to plead guilty is also relevant in its own right in that it is something that should be taken into account in his favour in the sentencing process.[5] The lateness of the offer reduces somewhat the mitigating effect but nonetheless it is a significant mitigating factor.

46 A major difficulty in determining an appropriate sentence in this case is the fact that, while Pota's reckless act resulted in the death of Barnett, he is not to be sentenced on that basis. Further, he is not to be sentenced on the basis that he intended to cause a serious injury. The conviction of recklessly causing serious injury involves a finding by the jury that Pota punched Barnett knowing that doing so would probably cause a serious injury but went ahead regardless of the probable consequences of the punch. In this instance the serious injury should be described as head injuries of a kind likely to kill Barnett. It is difficult to imagine a more serious kind of injury.

47 I refer back to the discussion of the sentencing objectives and the evidence relevant to them. In the present case the objectives of just punishment and general deterrence and denunciation are very important. Personal deterrence and protection of the community are also relevant although not as significant as they might have been because of the significant progress made by Pota in his rehabilitation. Rehabilitation is also a very important issue and a major challenge in determining the appropriate content of a sentence of imprisonment is to address the tension between this objective and the others mentioned.

48 In all the circumstances it seems to me that the appropriate balance is struck between the competing and overlapping objectives by imposing a term of imprisonment of 6 years with a non-parole period of 4 years. It seems to me that such a sentence would satisfy the requirement of proportionality, and, in particular, does not carry with it further punishment for his previous offences.

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