R v Katia[2006] QSC 279

SUPREME COURT OF QUEENSLAND
CRIMINAL JURISDICTION
MACKENZIE J

Indictment No 989 of 2005

THE QUEEN

v.
MOSES RUPERT KATIA

BRISBANE
..DATE 31/03/2006

SENTENCE

HIS HONOUR: Moses Rupert Katia, you have pleaded guilty to manslaughter, robbery with personal violence and stealing from the person. At the time of the offences you were aged about 18 years and nine months. The victim, Paul Bernard Markham, was 23 and by all accounts not aggressive by nature, a hard worker and well regarded by those with whom he mixed.

He had been drinking at a friend's residence early on Saturday evening, 12 February 2005, and later had been drinking at various places in the Valley and the City. By some time after 4 o'clock on Sunday morning, he was in the vicinity of the Embassy Hotel on the corner of Edward and Elizabeth Streets in such a condition of intoxication that a passer-by asked some off-duty security personnel from the hotel if they would look after him. Because they were about to leave they advised the person to seat him on a bus bench in the street outside the hotel. There, he remained in a semicomatose state with blood alcohol level in excess of .2 per cent until you and a friend came by.

According to what you told the police in your final version of events your friend removed Mr Markham's shoes and took his mobile phone as he lay on the bench. You were in the vicinity of the bench as he did so and your liability for stealing from the person rests on aiding him, not direct involvement. That was at about 5.12 a.m.

What led to the robbery of Mr Markham by you is not precisely established. What is established by the surveillance cameras is that Mr Markham got up from the seat and urinated near some wheelie bins on the footpath outside the backpackers hostel next to the hotel. You were captured on the camera flicking a paper bag that had contained food you had just consumed in his direction. You also were shown pushing a wheelie bin towards him which caused him to stumble but not fall. He found his way back to the seat he had been on and you followed him. That was estimated as a distance of 10 to 12 metres. By this time it was about 5.15 a.m.

Then, although the blow is not shown on the video, you punched him. You described the blow later as a loose right-handed punch intended to stun him, not to knock him out or break anything. According to you, the blow landed on his cheek. On post mortem, the pathologist found injuries to the mouth and behind the left ear and another small injury on the forehead. The injuries to the mouth were consistent with any blunt impact; either a punch or impact with the bench as the victim fell from it were possible causes. It is accepted that there was only one punch thrown. The more likely explanation of the mouth injury is that it was caused by the fall when the cleaner tried to rouse Mr Markham and that the blow that caused the fatal injury actually landed behind the ear. After the victim was hit and had fallen back on the seat, you took his watch from his arm, caught up with your friend and went home. You took the stolen shoes home with you. In giving your early versions of events to the police you said you had not hit the victim but that he had fallen back on the seat of his own accord. You had, however, prior to that told your girlfriend that you had hit him. The reason you gave for your unwillingness to tell the truth from the beginning was that you knew by then that Mr Markham had died.

The cleaner, to whom I have previously referred, was having a smoke at the entrance of the hotel but could not actually see where the incident happened. He said he heard what he thought were two males arguing. He heard one demanding that someone hand over his watch or wallet, he could not recall which. Soon after that he went into Elizabeth Street and spoke to Mr Markham who was apparently unconscious, arched back, to use the cleaner's expression, on the bench which his eyes open.

When the cleaner tapped him on the shoulder, he got no response but a gargling sound. Mr Markham then fell off the bench. When the cleaner saw blood on the victims forehead he decided to call the ambulance. That happened at 5.26 a.m. the injury he saw was, according to the pathologist, probably caused when the victim fell on the ground from the seat at that time.

The ambulance officers arrived at 5.36 a.m. and after emergency treatment was administered on the spot, they took him to hospital where treatment was administered but life support was turned off when it became apparent that his condition was beyond help.

The footage from the security cameras showing you and your friend in the vicinity of the bench was played on TV news programs on the following Tuesday. As a result of your being told of it and subsequently seeing it you called Crimestoppers and were questioned and then arrested by the police soon afterwards.

The causes of death were a ruptured vertebral artery and consequential basal subarachnoid haemorrhage caused by the closed head injury. Commonly the rupturing of the artery is caused by a blow that causes rotation of the head and stretching of the artery. A blow behind the ear is one of the most common causes of that kind of injury. The bleeding in the brain was the result of the rupture of the artery.

According to the pathologist in assault cases this kind of injury is relatively uncommon. The blow does not have to be severe to cause the damage. The trauma in assault cases where it occurs is often mild. Consumption of alcohol by a victim is a factor in about 80 per cent of the injuries of this kind. The person struck has less muscular control as a result of the consumption of alcohol. Along with other possible factors, the lessened muscular control is thought to create a risk of increased rotational forces which cause the injury to the artery.

Having said that it is the kind of injury that frequently occurs in cases of manslaughter and the stark reality is that the kind of injury is a foreseeable risk of doing violence to intoxicated people. Anyone who decides to use violence on an obviously intoxicated person who is causing them no offence and causes that kind of injury unfortunately has to face the consequences of having unlawfully killed another human being.

In this case given the evidence of the cleaner as to what he heard the more probable conclusion is that you made a deliberate decision to follow Mr Markham and rob him after your friend had stolen his shoes and mobile phone. In the course of doing so you inflicted the injury that killed him before robbing him of his watch. The alternative hypothesis that you assaulted him and stole his watch as an afterthought would be equally reprehensible conduct because it implies that you followed and assaulted a defenceless intoxicated man for no reason and then stole his watch.

No doubt you were affected by alcohol to a significant degree yourself. You said that you had drunk about 12 to 15 rum and cokes over the past four hours or so. The tragedy of it is that that ill advised decision to get involved with Mr Markham instead of continuing on your way has profoundly and lastingly impacted on several generations of a family who have lost someone they loved as the victim impact statements show. I have read them in detail. No doubt it has affected others who knew him as well. I expect that your family and friends are devastated too. What has happened must also cost you your freedom for some time at a time of your life when you would otherwise be beginning to shape your future most likely in a positive way.

You come from a good family background; the many references tend to show that during your school years you showed qualities that suggested you had a promising future. There was nothing to suggest that you were prone to violence. However the history of your life recounted in the psychologist's report since leaving school suggests that you fell into alcohol abuse and dependency in the pub and club scene to an extent that it was a matter of concern to some of those who were close to you.

The material also suggests that since you have had time to reflect about your situation you have tried to get your life back on track. One aspect of that is that you have given up drinking and hope to abstain from it in the future.

This case is another example of ones that Judges frequently have to deal with where random personal violence late at night and in the early hours of the morning is the result of gross over-consumption of alcohol. A recurring pattern seems to show that the root of the problem is its easy availability for so many consecutive hours in so many venues that attract young people. Coupled with the obvious determination of so many to overdo it to the point of binge drinking, and who then become aggressive with the potential for violence is obvious.

That is something that the Judges can do nothing about. It is for the community and politicians to sort out what response, if any, there should be to it. All that the Judges can do is to deal afterwards, according to law, with the tragic consequences that occur.

Manslaughter or unlawful killing is an offence where it is not proven that the offender intended to kill or to cause life-threatening injuries. The appropriate sentence for manslaughter depends on the facts of the particular case. As the facts of individual cases can be markedly different, a wide range of sentences can be found in the decided cases.

My task in sentencing today is to impose a sentence that fits the particular facts of the case within the range that previous decisions have shown to be applicable to cases of this kind. It is the kind of case where there has to be an element of general deterrence in the sentence imposed so that those who know of the case realise the consequences of random violence that kills or seriously injures another.

The Crown Prosecutor submitted that the cases of Duncombe and George provided some guidance, although they did not have the element that the fatal assault was committed in conjunction with a robbery. He conceded that your youth, your lack of criminal history, your general good character as disclosed by the many references, your remorse, your abandonment of alcohol and your early plea of guilty, together with the evidence that modest violence was sufficient to cause the injury were favourable factors towards you.

As against that he said that the fact that Mr Markham was helpless, and the incident involving robbery had predatory overtones, together with Mr Markham being abandoned after the assault were aggravating features. He submitted correctly that advantages in life that you may have enjoyed were irrelevant. If the sentence was less than 10 years, the Crown Prosecutor did not press for a serious violent offence declaration.

Defence counsel submitted that the incident should be viewed as one that arose on the spur of the moment. He submitted that had you wanted the watch you could have taken it when the shoes and the mobile phone were being taken. He pointed out that the victim's wallet was not stolen. He said that the punch, as described, was only of mild force, not intended to inflict any substantial injury.

He pointed to the fact that you phoned Crime Stoppers and that you had been willing to speak to the police without legal advice. He also pointed to the apology offered before last Christmas by you. He pointed to your acceptance that there was no excuse for what you had done and to your attempts, especially with regard to the alcohol problem, to effect rehabilitation. He also relied on the favourable references.

He submitted that a head sentence of seven years with an early recommendation for release met the justice of the case. He relied on the case of Hutchings in support of that conclusion.

The Queen against George, ex parte Attorney-General for Queensland, (2004) QCA 450 was concerned with a 21 year old offender who had two previous convictions for assault occasioning bodily harm and one for doing grievous bodily harm. He had a good work record and had a wife and family. He pleaded guilty. His conduct on the night was described as "persistent violence" and it was said that the offender was "totally out of control".

George was involved in the fight with the deceased who was heavily intoxicated. After that the deceased leaned against a motor vehicle and took no part in an all in brawl that was subsequently quelled by the police.

Then the accused threw one punch at the deceased who was obviously defenceless which knocked him to the ground and caused a fatal subdural haemorrhage. On the Attorney General's appeal the sentence originally imposed was increased to nine years with no recommendation for early release. The Court of Appeal did not disturb the trial Judges decision that a serious violent offence declaration should not be made. The prisoner therefore had to serve at least four and a half years before release on post prison community based release.

The sentence which, in reality, equates to a starting point of about 12 years, no doubt was structured in that way to avoid the consequence that the accused would have to serve 80 per cent of the sentence because a sentence over 10 years carries an automatic serious violent offence declaration.

George was a person with a history of violence and was older than you. Nor was the striking of the fatal blow a single act on his part; it was the culmination of a series of violent acts in on the night in question by the offender. The Court held that the sentence of nine years without any recommendation was the minimum that could be imposed given the respondent's conduct and his record.

The Queen v. Duncombe 2005 QCA142 was another case involving more protracted violence than in the present case. Duncombe was 22, he had pleaded guilty and otherwise co-operated with the authorities. He had a criminal history consisting of a number of street offences and offences of dishonesty. He was sentenced to 10 years imprisonment which carried with it a serious violent offence declaration because of the 10 years threshold for automatic declaration.

Duncombe had been evicted from a nightclub for annoying patrons and threatening the bouncers. He walked away and after abusing some passing women saw the 47 year old victim on a bench asleep after a night out. Duncombe stood over him, the man held his hands up in a gesture of submission but Duncombe put him in a headlock and hit him with his fist. Despite the victim offering no resistance, Duncombe punched him in the face again which caused a loud cracking sound. There was then another punch which caused the victim to fall to the ground probably by this time unconscious.

After that he punched another person causing his head to hit the side of a bus and then assaulted the third man by throwing him to the ground and kicking and punching him unconscious. The last man's wallet was stolen. The majority of President McMurdo with whom Justice Cullinane agreed, held that it had not been demonstrated that ten years imprisonment was outside the sound exercise of a sentencing discretion.
 

Justice Jerrard considered that the 10 year sentence imposed for manslaughter would have been excessive had it stood alone. However, the aggravating circumstance of the other assaults occurring immediately afterwards justified the sentence of 10 years to reflect the appellants overall criminality.

The Queen v. Hutchings, a recent sentence of Justice Holmes involved a 27 year old security man from a hotel with no previous convictions who had lived a reputable life and had a good day job. He went to trial and was convicted of manslaughter. According to the sentencing remarks he was sentenced to seven years imprisonment with a recommendation after three years on the basis that he had killed an obviously intoxicated man with a single impulsive swinging kick to victim's head, probably in reaction to crude remarks made by the victim who had earlier been behaving irresponsibly.

It was not a sustained attack, just a single kick. Because Hutchings went to trial any recommendation for early release would not be of the extent that a person pleading guilty would ordinarily expect. He was much older than you but there were no aggravating circumstances such as the robbery in his case.

In 1997 a special provision relating to sentencing offenders under 25 years of age with no previous convictions was repealed and special provision was made for matters primarily to be taken into account in sentencing for offences of violence. Nevertheless the Queen v. Lovell 1999 2 Queensland Reports 79, says that although the importance of youth as a mitigating circumstance was diminished by the 1997 amendment it is still relevant, as section 9(4)(h) of the Penalties and Sentences Act says, to consider the antecedents, age and character of the offender.

Justice Byrne with whom Justice Davies agreed said that youth remained a material consideration because rehabilitation of youthful, even violent, offenders, especially those with no previous convictions serves to protect the community. Protection of the community is one of the objectives of section 9(4).

You were only 18 years and nine months at the time of the offences. Prior to that you had no criminal history at all. Although it was inevitable because of the surveillance footage that you would be identified by the police and it seems that they already had information that it was you, you did at least take the initiative of contacting Crime Stoppers before they arrived. You pleaded guilty at an early stage. Those are all matters in your favour along with other matters previously mentioned.

Although your life can never be the same because of what has happened, unlike many who come through the Courts, you do seem to have the potential to make something of your life after you are released. As against that, the offence was one of gratuitous, unprovoked and unnecessary violence against a man who had given you no offence and was obviously quite incapable of looking after himself let alone defending himself. The probable reason you went back to Mr Markham was to rob him but whether you went back to do that or whether you simply assaulted him for some unexplained reason and then stole his watch as an afterthought, it was a contemptible thing to do. In either case, the robbery aggravates the criminality of what you did.

Because the head sentence I intend to impose is longer than five years I cannot by law order that the sentence be suspended after part of it has been served. I will, however, make a recommendation for post-prison community-based release that is shorter than half the sentence to take into account the matters in your favour. That does not mean that you will automatically be released after that period. The actual date of your release will depend on a number of factors, an important one of which is the way you apply yourself in prison to demonstrating that the process of rehabilitation that seems to have begun already continues. The head sentence will reflect that you were young at the time of the offence. The other matters of mitigation are reflected in the recommendation.

On the count of manslaughter I sentence you to eight years' imprisonment. I order that you be considered for post-prison community-based release after three years of that period.

On the count of robbery with personal violence I sentence you to four years' imprisonment concurrent - that means it will be served in conjunction with the eight years.
 

On the count of stealing from the person I sentence you to six months' imprisonment, also concurrent.

I order that 153 days from 15 February 2005 to 18 July 2005 be taken into account as time already served.

I recommend that in view of the prisoner's commitment to furthering his education, which is partly under way, that the Department of Corrective Services give consideration to locating him in a place where he may continue to do so.

Anything else, Mr Martin?

MR MARTIN: No, thank you, your Honour.