R v Talatonu [2012] VSC 270

2 At about 2.00am, the deceased directed a remark towards you about your illegal status in this country. An argument developed and the deceased broke three stubby beer bottles on the back of your car. He brandished a broken stubby in your direction.

3 Shortly after that, the deceased punched you about three times in the face. Moananu described these blows in his statement and stated that you attempted to cover up as Mr Taoai was hitting you. There is some dispute as to whether you actually then went inside your house or went merely deeper into the carport area. Little turns on this. You procured a knife. Some minutes after you were punched you approached the deceased. He had been talking to Moananu and had commenced to walk back to his house.

4 You then stabbed the deceased with what Moananu described as a chicken knife. Moananu describes you as angry and yelling in Samoan words to the effect "What did you say, what did you say to me?" Dr Iles, a Coronial Services Pathologist, observed stab wounds to the mid-chest wall, the right chest wall, the front left shoulder area and the right side of the forehead, extending backwards 13cm into the hairline.

5 The wound to the shoulder would appear to be the final injury as a portion of the knife blade was found lodged in that area. In Dr Iles' opinion, at least moderate force was required to inflict these wounds.

6 By accepting your offer to plead guilty to defensive homicide the prosecution accept that you had a genuine, if unreasonable, belief that you were acting in self defence. I must sentence you on that basis. The maximum penalty for defensive homicide is 20 years' imprisonment. It is a serious offence. I regard your criminal culpability as mid range for this serious offence.

7 Before leaving the circumstances of offending, I should observe that the 33 year old deceased was quite heavily built, weighing 106kg. At the time of offending you were 50 years old and of much slighter build. Mr Taoai's blood alcohol concentration was measured at in the range of 0.15 grams per 100ml. I accept that both you and he were substantially affected by alcohol on this evening. In a report prepared on your behalf by Mr Michael Crewdson, a forensic psychologist, you provided an account of the incident that, in some respects, is inconsistent with your plea. I will not act upon any factual assertions recorded therein that are inconsistent with your plea of guilty to defensive homicide. In other respects I found Mr Crewdson's comprehensive report, prepared under some difficulties, as balanced and helpful.**

**8 You are now 51 years old. You were born in Samoa and have two teenage children there. Your wife died in 2001 from heart disease. Your 86 year old mother remains in reasonable health in Samoa with the rest of your family.

9 In 2006 you came to Australia on a visitor's visa but decided to stay on illegally. I accept that you developed real anxiety over your illegal status and you were sensitive to others referring to it. You worked in Australia as a fruit picker sending home approximately $800 a month to your family. This is a substantial amount by Samoan standards.

10 You have no prior convictions and I accept Mr Crewdson's evidence that you exhibit considerable remorse for your actions. I quote Mr Crewdson's ultimate conclusion:**

"My impression in general was that Mr Talatonu is basically a good man who has caused a tragedy."

On balance I accept this. You are strongly religious and this has been of some comfort to you during your time on remand.

**11 It emerged during your plea that you are the only Samoan speaking prisoner in the Victorian prison system. There is one Samoan speaking prison guard. You speak very little, if any, English. You have not received any visitors during the year and a half that you have been held on remand. I consider that the term of imprisonment that I must impose will be made substantially more onerous by these factors, described by Mr Crewdson as "personal psychosocial isolation". I have moderated the sentence I am to impose to reflect the additional burden of this isolation.

12 Mr Crewdson was of the view that you were not suffering from any major psychiatric illness or disorder at the time of the offence. He thought there may have been a minor level of anxiety stemming from your illegal immigrant status, and perhaps some mild depression as well, but he frankly conceded that these were of a relatively minor nature, and no attempt was made by your counsel Mr Marin to link this to your offending. It seems clear to me that anger arising from being abused and assaulted, together with intoxication, provide an uncomplicated explanation for your conduct.

13 You have not offended previously and I doubt that you will again.

14 It seems inevitable that you will be deported upon your release. This was not in dispute on your plea. In Samoa you will have the support of your friends and family. You will be young enough upon release to seek work and make a contribution to your community. I regard your prospects for rehabilitation as excellent. I have not moderated your sentence for the fact of your inevitable deportation, as had you been apprehended by immigration authorities absent any criminal offending, I consider that it is highly likely that you would have been deported in any event. It follows that I do not consider deportation as a meaningful additional punishment and I do not consider the inevitability of it adds in any significant way to the already significant additional burden that you will have to deal with in prison.

15 I accept that your plea of guilty was entered as soon as the offence of defensive homicide became available as a plea option. I propose to treat it as an early plea. You are entitled to some benefit on sentence for your early plea. You have saved the community the inconvenience and expense of a two to three week criminal trial, Ms Dhillon has been spared the ordeal of giving evidence, and I am prepared to infer a measure of remorse from the fact of your plea. I doubt that a defence of self-defence would have been successful at trial, but it was certainly open to you to have pursued that defence at trial.**

16 The fact remains that your conduct, objectively judged, was grossly disproportionate to the threat you genuinely perceived. By it you have cut a young man's life short. I have read the victim impact statement of Ms Leti Dhillon, Mr Taoai's partner:

"This is heartbreaking and the most difficult situation I have ever been through"..."I am so wrecked and I will be like this for the rest of my life"... "No matter how hard I try it just won't go away".

I am required to and do take into account the impact of your offending upon Ms Dhillon. I also take into account that impact upon Mr Taoai's wider family who have not made victim impact statements but who no doubt grieve for their loved one.

**17 I consider the circumstances of the offending compel me to give weight to the factor of general deterrence. Those who are inclined to use knives to settle alcohol-fuelled disputes must understand that the community simply will not tolerate this. I consider that your conduct also calls for denunciation and punishment. A young man has needlessly died at your hand. You could easily have walked away, as he did. You didn't, and the community is entitled to call for your conduct to be punished and denounced.

18 Balancing these factors as best I can, I sentence you as follows. On the charge of defensive homicide I sentence you to eight years' imprisonment. I order that you serve a minimum of five years three months' imprisonment before becoming eligible for parole. I declare that 523 days of the sentence, not including today, have been served by way of pre-sentence detention.

19 Pursuant to s 6AAA of the Sentencing Act 1991 I declare that, but for your plea of guilty, I would have sentenced you to ten years' imprisonment with six years six months to be served before parole eligibility.**