R v Tello [2010] VSC 224

3 This charge arises from an incident which occurred at the Queensbridge Hotel in the early hours of 7 September 2008. You had gone there with a group of friends and relatives to celebrate your 21st birthday.

4 I will, in the first part of this sentence, borrow directly from a number of things which I said when sentencing your co-accused.

5 The absolute tragedy that marks these events comes about as a result of the unfortunate death of Matthew McEvoy. The fact that his death was sudden and entirely pointless only makes the suffering of those close to him all the more intense.

7 Mr McEvoy had arranged to meet his cousin at the Queensbridge Hotel at about 2.15am. Prior to this, he had been out with friends and had been drinking. He was affected by what he had to drink. Mr McEvoy arrived at the hotel at about the appointed time with a group of friends and met up with his cousin, Mr McGrath, as planned.

8 Mr McEvoy continued to drink at the hotel and appeared to have been attempting to get some ecstasy. One of the people he approached was your co-accused, O'Brien. The exchange that followed led to an argument between the two of them and they finished up with their foreheads pressed together. The intervention of Mr McGrath ensured that the incident did not go any further and O'Brien shook hands with Mr McEvoy, before the two of them hugged and parted.

9 About the same time, you, Andriyas Tello, in company with Issa, went to an area of the hotel known as the smokers pit. You were joined there by O'Brien and Sako. Mr McEvoy and Mr McGrath came out to the same area and joined friends. They were a reasonable distance away from your group at that stage.

10 There is a CCTV camera in the smokers pit of the Queensbridge Hotel. The recorded footage shows O'Brien pointing towards Mr McEvoy when discussing something with your group. It is reasonable to assume that he was pointing Mr McEvoy out to the rest of you.

11 Over the next 20 seconds or so, your three co-accused approached the group where Mr McEvoy was standing. About 30 seconds later, two of Mr McEvoy's friends left the group and within 20 seconds after that the group appears to break up. About that time, you came from the area near the door to the Irish Bar and struck Mr McEvoy a severe blow to the right side of his head with your clenched right fist before retreating. That conduct appears to be without reason.

12 Before you moved forward, O'Brien turned in your direction, but I do not proceed on the basis that you were acting other than on your own behalf.

13 It appears that had you not intervened, at least part of any incident on foot was at an end. At the time that Mr McEvoy was first struck by you, it does not appear that he in any way perceived that he was about to be attacked, or that he even saw you coming towards him.

14 Those events bring us to 2.37.59am on the CCTV footage. The blow from you knocked Mr McEvoy to his left and a little behind Mr McGrath. A security guard named Michael Bulatovic was quickly on the scene and attempted to separate the group. At that time, Issa and O'Brien were pushing and shoving and throwing punches in the direction of Mr McEvoy and Mr McGrath, although none of them appear to have connected. Or, if they did connect, did not do so with any force. O'Brien showed a fair amount of persistence regarding engagement in the fight without a great deal of success. Your group, including you and Sako, were positioned generally to Bulatovic's right and Mr McEvoy and Mr McGrath to his left. As Bulatovic was attempting to keep O'Brien and Issa in particular at bay, you came around him and again struck Mr McEvoy a very forceful blow with your clenched fist to the side of his head, towards the rear.

15 Mr McEvoy was not attempting to defend himself and again appears to have been taken unawares. He fell to the ground from the force of the blow. He fell to his left. Sako then kicked him with some force to the head using his right foot. It was then 2.38.11 on the CCTV footage. That is, the truly important event of this night occurred in the space of about 12 seconds.

16 You then intervened and took hold of Sako and O'Brien. Mr McEvoy was by then unconscious and later died as a result of his injuries. His parents were subjected to the awful experience of being forced to make the decision to turn off their son's life support system. That was done on Monday 8 September.

17 The immediate response to these events involved the four of you being ejected from the hotel. Had it not been for the truly serious and tragic consequences, that probably would have been the end of the matter. O'Brien and Sako were arrested later on the morning of 7 September, or else it was one later in the morning and one that afternoon.

18 Mr McEvoy died as a result of a subarachnoid haemorrhage with prominent basilar haemorrhage. It is not possible to say whether it was either or both of the blows delivered by you or whether it was the kick from Sako which caused the death. For that matter, whether it was any one of the above or all of them in combination. You accept responsibility for causing the death by either your own unlawful and dangerous act or acts, or by aiding and abetting Sako in the commission of his unlawful and dangerous act. As I have already discussed, at the time you struck the deceased, he was not defending himself and was taken unawares. In the circumstances, I think it is more probable that death was caused by either of the blows struck by you. If it could be established that your blows alone caused death, then your conduct would have to be viewed more seriously. I cannot be satisfied beyond reasonable doubt that it did, and so you fall to be sentenced as an aider and abetter of Sako, where either or both of you have caused the death. The prosecution puts its case against you in such a way. The distinction will not, at the end of the day, be an important one as you are, on either basis, to be held responsible for the death of Matthew McEvoy. It will be observed that I used identical language when sentencing Sako. That is the nature of this case.

19 On the plea I was provided with a DVD of the CCTV footage, which had been enhanced to enable each of those involved in the incident to be more readily identified. It is therefore possible to say with some certainty who did what.

20 I have now released that DVD to the media and it has been made available to the public. I hope that it does resonate with young men. I hope it shows how simple it can be for events such as these to occur, and how they can lead to unintended but nonetheless appalling consequences. The actual physical violence in this case involved two punches and a kick.

21 When sentencing Lauren Sako I commented on the Victim Impact Statements which had been read on the plea. Those same Victim Impact Statements were again read to me on your plea. Their impact was not diminished by their re-reading, and in some sense, their joint force made them even more moving.

22 The comments I made in Sako's sentence will be repeated here. I do not think that I can improve on what was said.

23 On your plea, the three Victim Impact Statements I have referenced were again tendered and read to the court. They are from Matthew's mother, father, and brother. The material was forceful and very moving. To say that the suffering of the McEvoys has been profound is inadequate and an understatement. It has been increased by the painful decisions which had to be made in the hours following this incident. Increased by the loss of a young man of outstanding quality, increased by the entire pointlessness and avoidability of his death. The loss will be with them for the rest of their lives. It should also be noted that the victim impact material is set out in a careful and most dignified way. No sentence I impose on you can act as much, if any, consolation to them.

24 Since I heard your plea, there have been some comments in the media about the case which urged me to approach my task in a particular way. I would not ordinarily mention it. I do so only to assure you that I will sentence you in accordance with the law and in accordance with the oath that I have taken to apply the law. You will receive a more severe sentence than that imposed on Sako. It was properly accepted on the plea that it should be so. It has nothing to do with media outbursts.

25 Your role is more significant than that of Sako, in that you were the instigator of the violence. It was the second blow from you which caused Mr McEvoy to fall to the ground where he was kicked by Sako, and although you have pleaded guilty, you have done so at a significantly later stage. It must also be noted that although you are young, you are more than two years older than Lauren Sako. The principles applicable to young offenders will apply to both of you, but were somewhat more important in Sako's case.

26 It is important to point out that you are a young man of previously good character. I understand that to be so for the other young men in your group, who were either your friends or relatives. There is not the least indication that your group, neither individually nor jointly, had ever behaved in this way in the past. The expression "thug" or "thugs" has been used about you and your group, and although it is an apt expression to use with regard to your behaviour on this occasion, it is not an accurate description of your previous character and disposition.

27 That fact, above all, heightens the sense of inexplicability which surrounds this case.

28 You are now 22 years of age and will be 23 in September of this year. As I have already pointed out, you were arrested on 7 September 2008 and then again on 13 October 2008 when you were charged with murder. You were interviewed on both occasions. During those interviews, you described your involvement in what occurred. You said that you thought the deceased was going to attack your friends, and that is simply not supported by the CCTV material. You did say that you were angry, particularly when you struck Mr McEvoy the second time. Yet you also expressed regret for what you had done, for the consequences that followed your actions and for the distress which you caused Mr McEvoy's family. Your responses were, to that extent, somewhat unusual.

29 I am satisfied that you are genuinely remorseful for what you have done.

30 You also appear to understand the importance of family and family values; much of that comes as a result of your upbringing.

31 You were born in Iraq. You are the seventh of eight children. You have three older sisters and three older brothers, and one younger sister. You have the powerful support of your family. Your mother and father and your brothers and sisters came to Court to support you and believe they are here today.

32 You and your family left Iraq in 1992 after the Gulf War. Your uncle was tortured to death by Sudan Hussein's regime. You went to Jordan, then to Turkey and then to Greece. That journey took something over five years. After three applications to come to Australia, were refused in Turkey. Your entire family was eventually accepted from Greece in 1997 and you came here in 1998. You were then ten or eleven years old. You had received little formal education up to that point and did not speak much, if any, English.

33 During the family's stay in Turkey and Greece, times had been difficult and you had to apply yourself to assist the family by selling tissues in the street.

34 Your primary schooling was difficult and you were subjected to bullying; perhaps it was the unfortunate cost of being different. You went on to Hillcrest Secondary College. You completed your Year 12 via the Victorian Certificate of Applied Learning. You also successfully completed a pre-apprenticeship course in building and construction at Kangan Batman TAFE. That brought you to the end of 2006.

35 You worked as a machine operator for 18 months and for Linfox as a packer for about six months. You commenced a carpentry apprenticeship immediately prior to these events, which you were unable to continue.

36 Since being on bail, you have undertaken casual work with Chris Calleja at Empire Pistons. Mr Calleja gave evidence on your behalf. He is also a mentor and has assisted both you and your family to understand the legal process. He spoke well of you, accepts that you are genuinely remorseful, and doubts that you would reoffend in the future.

37 Your elder brother, Eivan, also gave evidence on your behalf and confirmed your history. He told me that you now speak five languages. He told me that you had shown concern for what you had done and in particular the grief that you had caused to both the family of the deceased and to your own family. You have become more interested in your religion and are now a regular churchgoer. He also noted you were unlikely to reoffend.

38 On the plea I received a psychological report from Mr Patrick Newton, a very experienced forensic psychologist. Mr Newton found that you have expressed uncharacteristic remorse for the deceased and his family, as well as regret for what you have done. In particular, he noted how sincerely you regretted the way you had intervened on the night.

39 Mr Newton dealt specifically with the issue of anger and made the following findings about it.

In light of the offences alleged against Mr Tello I conducted a detailed review of his capacity to manage his anger and of his conflict-resolution skills more generally. This review indicated that he ordinarily rejects violence and does not condone the use of physical aggression as a valid means of achieving his desires or resolving conflict. To the contrary, Mr Tello expressed a disavowal of aggression in all but extreme circumstances and added that his traumatic childhood experiences had reinforced to him the futility of violence, as well as understanding the powerfully negative impacts of aggression upon others.

Notwithstanding these positive values, my assessment did identify some issues in Mr Tello's conflict-management skills. These have their roots in his traumatic and displaced childhood. His response to the childhood trauma he suffered has been to seek to 'dampen' his emotions so that he might keep them under strict control. Through this strategy he has been able to avoid confrontation with the terror and anxiety that would otherwise have overwhelmed him. As a child in a perilous situation, the emotional control which this provided allowed him to adapt to his environment and survive in very challenging circumstances. Even though the trauma has now passed, Mr Tello continues to have some difficulty engaging with his emotions and this was reflected in his difficulties articulating emotional issues during his consultation. He was able to express only a limited understanding of the emotional cues that would signal that his anger is growing in intensity. Similarly, his understanding of his physical responses and the thoughts associated with his anger (as with emotions more broadly) was also unsophisticated and relatively superficial. This means that Mr Tello is likely to be unaware of his anger until it has reached significant proportions. He is likely to experience his anger as coming upon him suddenly and this makes it more difficult to exercise appropriate control over it.

More broadly, the effects of his childhood trauma upon Mr Tello's capacity to manage his anger are complex. The compromise both 'protective' behaviours that reduce the risk of aggression, and others that make it more difficult for him to control his anger and so increase the risk of aggression. On the protective side, and as noted above, his experience has lead him to disavow aggression and has inspired significant empathy for others who have suffered from violence. Moreover, the anxiety which Mr Tello continues to experience makes him both reluctant to enter any situations where conflict is likely and quick to depart once conflict arises.

Notwithstanding these protective elements, Mr Tello's traumatic experiences have also left him rather wary and nervous in social situations (particularly in crowded environments). He tends to be extremely sensitive to any signs in his surroundings of threat to himself or his significant others. When confronted with situations where he feels that he or his significant others are threatened, Mr Tello typically attempts to leave the situation rapidly, but he is unlikely to do so without his companions. This 'loyalty' can be adaptive in some situations, but it also has potential to act as an additional hurdle which can prevent him from escaping from situations of conflict expeditiously. When Mr Tello finds himself unable to avoid conflicted or threatening situations, he is likely to experience intense and rapidly escalating anxiety. This can compromise his ability to control his anger and would pose a noteworthy risk for aggressive behaviours on his part.

40 Mr Newton, under the heading 'opinion' made the following remarks:

Mr Andriyas Tello is a 22 year old man who participated in a psychological assessment in connection with a forthcoming court appearance. On the basis of a comprehensive evaluation of Mr Tello's current mental status, a review of his personal history and detailed psychological testing, the following conclusions were reached:

1. Mr Tello is suffering noteworthy symptoms of anxiety. He is understandably worried about his forthcoming legal matters, but such factors alone do not sufficiently account for his symptoms. Rather, it is my view that he continues to suffer residual traumatic impacts of the ordeals he suffered as a child.
2. While Mr Tello's symptoms are not currently sufficiently severe to warrant the diagnosis of Post-Traumatic Stress Disorder, a review of his history indicates that he suffered such a condition in childhood. Moreover, the fact that he continues to suffer such distress so long after the events that traumatised him, underscores the severity of his distress and reinforces the importance of his receiving appropriate professional care.
3. In addition to the chronic anxiety he has experienced, Mr Tello has also suffered long-term symptoms of depression. He has experienced recurrent episodes of depressive mood disturbance from childhood, but has never participated in any form of psychiatric or psychological treatment to address his difficulties. Mr Tello continues to experience residual symptoms of depression at present. While his legal predicament is exacerbating these, it is my opinion that his symptoms are not merely 'reactive', but rather represent the continued impacts of a recurrent Major Depressive Disorder of moderate intensity.
4. Mr Tello also experiences episodes of intense suicidal ideation. Notwithstanding his assurances that he will not harm himself, he is assessed as being at heightened risk for self-harm in circumstances where he is separated from his primary supports. It would be important for appropriate precautions to be in place to protect him in the immediate aftermath of sentencing. These would be most effective if integrated into longer-term mental-health care.
5. My evaluation of Mr Tello suggests that he is not typically an aggressive man. To the contrary, he attempts to avoid conflict and places a strong emphasis on emotional control. A detailed review of his anger-management skills indicated that he would benefit from learning to recognise cognitive, emotional and behavioural cues that his anger is growing.
6. Moreover, while his childhood trauma leads him generally to avoid conflict and enhances his empathy for the victims of violence, it has also left him with some residual difficulties in his anger-management. Thus, he can be wary and nervous in some social situations, and he tends to be sensitive to any signs of threat towards himself or his significant others. In situations where he feels either himself or his significant others to be under threat, he reverts to thought patterns and behaviours which may have been adaptive in the disturbed environment in which he grew up, but which have the potential to be problematic in an everyday context.
7. Mr Tello's cognitive functioning and thought processes are normal. His reality testing and moral reasoning are unimpaired and his intelligence is normal.

41 You do not seem to have over-reacted in this way in the past. A noteworthy and confirmatory feature of your behaviour on the night is that once you had done what you did, you started to gather up both Sako and O'Brien as if to prevent their further involvement.

42 Mr Newton did conclude that your background, which I have set out above, may well have contributed both to the development of feelings of anger and your ability to deal with them.

43 Although all of that goes some way to explaining how it was you got involved, it does not in any way excuse it. Although I would accept your rationalisation of these events involves a belief that you were acting to protect others; that is simply not borne out by the facts. What Mr Newton reports is of assistance in explaining some aspects of that.

44 You are a young man who has not used drugs nor abused alcohol. Although these events occurred on licensed premises, you and your group do not appear to have been substantially affected by alcohol or any other substance.

45 I received 13 letters on your plea. One was from you, and one was from Mr Calleja, the others were from people who had known you in the past. I accept in general that your conduct on this occasion was out of character. I also accept that the death of Michael McEvoy was an unintentional consequence of your deliberate conduct.

46 I accept that you are genuinely remorseful and are likewise genuinely concerned regarding the shame you have brought upon your family and the Assyrian community. Although your plea of guilty was relatively late, you are entitled to have it considered in fixing an appropriate sentence, and I have done so.

47 I regard your prospects of rehabilitation as being high and think your risk of re-offending in the future is low.

48 I take into account the fact that Mr Newton is of the opinion that a term of imprisonment will be more onerous for you than it would be for others for the reasons I have included from his report.

49 You are relatively young. The principles which ordinarily give primacy to questions of rehabilitation have to be looked at in the context of the seriousness of this offence and this offending when such principles will be of less overall importance.

50 In the result, this is a serious case because the result of your offending is someone's death. When the case is looked at objectively, your conduct, although cowardly, is not amongst the most serious examples of conduct which causes death. I can say that from a position involving knowledge, of at least something, about nearly every similar case to come before this Court in the past 15 years.

51 Section 5 of the Sentencing Act 1991 (Vic) requires me to have regard to a large number of matters. I have had regard to all the matters set out in the Sentencing Act 1991, in accordance with the principles which have been set down by superior courts.

52 The maximum term of imprisonment for manslaughter is 20 years.

53 In particular, I have had regard to just punishment, general deterrence and specific deterrence.

54 The difference between the sentence that I am about to impose and that of your co-accused, Lauren Sako, is principally as a result of the more substantial role you played in the offending and your later plea. The fact that Sako was somewhat younger than you was an additional factor. Your youth, remorse and future prospects have lead me to impose a lower than usual non-parole period.

55 I sentence you to be imprisoned for 8 years, and I fix a period of 5 years before you will be eligible for parole.

56 Section 6AAA of the Sentencing Act 1991 requires that I state what sentence I would have imposed upon you had it not been for your plea of guilty. The task is complex because the sentence is formed having had regard to a large number of factors.

57 Doing the best I can to look at the plea in isolation, I would have sentenced you to be imprisoned for 9 years with a non-parole period of 7 years.

58 It should be noted that the non-parole period is significantly higher, having regard to all the additional factors which absence of plea would represent, but in particular that I would not in the circumstances impose a lower than usual non parole period.

59 I declare that you have served 50 days in pre-sentence detention. I direct that this declaration and it's details be entered in the records of the Court.