Director of Public Prosecutions v Bolalailai
[2023] VCC 2443
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01376
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSAIA BOLALAILAI |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 20 December 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | DPP v BOLALAILAI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2443 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW --- Sentence
Catchwords: Causing Serious Injury Recklessly --- Plea of Not Guilty --- Jury Verdict --- Prison assault --- Victim and Offender locked in cell --- Unprovoked attack --- Punch to face and stomp to face when victim lying on ground --- Victim required life saving neurosurgery --- Victim sustained Acquired Brain Injury --- Permanent disability --- Offender on remand for Murder at time of this offence --- Pleaded guilty to manslaughter 4 days before this offence --- Age --- Limited prior criminal history for violence --- Facing deportation --- Cumulation of sentence for prison offence --- Totality
Legislation Cited: Sentencing Act 1991 --- Corrections Act 1986 --- Corrections Regulations 2019 --- Crimes Act 1958
Cases Cited:Duran de Castres v R [2011] VSCA 377 --- Director of Public Prosecutions v Timoteo & Ors [2021] VSC 312 --- Bugmy v The Queen (2013) 249 CLR 571 --- Sabbatucci v R [2021] VSCA 340 --- Roosevelt Newton (a pseudonym) v The King [2023] VSCA 22 --- Guden v The Queen (2010) 28 VR 288 --- Azzopardi v The Queen [2011] VSCA 372 --- R v Mills [1998] 4 VR 235 --- Roach v The Queen [2020] VSCA 205 --- R v Devries [2005] VSCA 95 --- DPP v Hope [2017] VCC 1315 --- DPP v Stewart [2021] VCC 1007 --- The King v Hall [2023] VSC 151 --- Mill v The Queen (1988) 166 CLR 59 --- DPP v Rongonui (2007) 17 VR 571 --- R v Piacentino [2007] VSCA 49 --- R v Ahmad (2007) 15 VR 501 --- Gordon v The Queen [2013] VSCA 343 --- DPP v Stewart [2009] VSCA 220 --- Ashe v The Queen [2010] VSCA 119 --- Al Wahame v The Queen [2018] VSCA 4 --- R v Rich (No 2) [2002] VSCA 17.
Sentence: 7 years and 6 months imprisonment --- Cumulative on uncompleted sentence of 11 years and 2 months imprisonment --- Total Effective Sentence of 18 years and 8 months imprisonment --- Global non-parole period of 11 years and 2 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Jason Harkess | Office of Public Prosecutions |
| For the Accused | Luke Howson | Papa Hughes Lawyers |
HER HONOUR:
1Josaia Bolalailai, on 8 February 2021 you and Trent Duncan[1] were locked in a cell together at the Metropolitan Remand Centre in Ravenhall. You assaulted him to the face and head. Mr Duncan’s jaw and sinus bone on the left side of his face were fractured. He had three skull fractures to the rear of his head and an underlying bleed on his brain. His significant head trauma with skull and brain injuries were deemed life threatening. He now has an Acquired Brain Injury and lifelong impairment. He was 29 years old at the time of this incident and is now 32.
[1] A pseudonym.
2You were charged with causing serious injury intentionally and in the alternative with causing serious injury recklessly. You pleaded not guilty and ran a trial.
3On the day of this incident you told prison authorities that Mr Duncan had slipped in the shower. At Trial you gave evidence on oath wherein you denied assaulting him, claiming he had fallen and had a seizure. The jury rejected that evidence.
4After an 11 day trial were found guilty by a jury of the alternative charge of causing serious injury recklessly. It is now my task to sentence you in line with the jury verdict.
5At the time of your offending you were 23 years of age. You are now 26.
Plea submissions
6On your plea your Counsel submitted that the jury verdict of not guilty on the causing serious injury intentionally charge and guilty on the causing serious injury recklessly charge equates to the jury rejecting both the prosecution and defence case. Specifically, Mr Howson submitted that the verdict is ‘best explained’ by a finding that the serious injury to Mr Duncan’s brain was caused by him colliding with the ground and not as a result of being stomped on. He submitted that such a finding is consistent with the jury’s rejection of you having intended to cause a serious injury and its finding that you acted having known that a serious head injury was probable or likely to occur[2]. In any case, he submitted, the evidence does not exclude that finding beyond reasonable doubt. Before I turn to my conclusions in that regard I will outline the facts in some more detail.
[2] The Defence submission seems to be missing a portion of this sentence.
Summary of offending
7You and Mr Duncan had been sharing the same cell for approximately two to three weeks and, according to him, until the offending had been getting along.
8He did recall that some days prior to this assault you had been watching television and suddenly muted the television and said the word ‘dog’. He was not sure whether that comment was directed at him, though on reflection after this attack believes it was.
9On the day of this episode, you and Mr Duncan were locked in your cell around 4pm. Mr Duncan was standing in the front area of the cell watching television. You were sitting on the bottom bunk. Out of the blue you called him a ‘dog.’ Then, again without warning, you stood up, came towards him and punched him with a hook to the left side of his face. The force of that punch caused him to fall to the ground. He said he was dazed. Mr Duncan gave evidence that he had been hit before, but this was forceful, ‘was a good decent hit.’
10Mr Duncan then said as he lay on the ground that he saw the bottom of your shoe coming towards his face. His description indicated he was lying on his back. He told several complaint witnesses you had stomped on his head.
11It is not possible to determine the precise time you assaulted Mr Duncan, however at about 9pm you used the cell’s intercom to contact the prison facility control room. You informed the control room that Mr Duncan had ‘slipped in the shower’ and was bleeding.
12When prison officers attended your cell, you were holding Mr Duncan up from behind. He was wearing tracksuit pants. There was blood on his face and the photographs of the left side of his face demonstrate the severe swelling these injuries had caused.
13You were removed from the cell while prison officers entered to assist Mr Duncan. When asked what had happened, you repeated again that Mr Duncan had slipped in the shower.
14You gave evidence at the trial that in fact you had not seen Mr Duncan slip in the shower. You said that you were lying on your bunk writing a letter to your mother. You heard two bangs, and after the second you went to investigate and found Mr Duncan on his back in the shower area and having a seizure. You claimed that you administered first aid to him, holding his mouth open so he could breathe, before calling for help via the control room. The jury rejected your accounts regarding how Mr Duncan sustained his injuries.
15Mr Duncan was taken to St Vincent’s Hospital. Dr Kristian Bulluss, Consultant Neurosurgeon who operated on Mr Duncan that night gave evidence regarding the injuries. To the rear of his head he had a depressed skull fracture with an underlying blood clot, along with three linear fractures emanating from the area of the depressed fracture. He also suffered a frontal contusion on the brain. To the left side of his face he sustained a fractured jaw, a fractured sinus bone, and significant swelling, in particular around his left eye region. In addition he had an abrasion to the right knee.
16Dr Bulluss described Mr Duncan’s head injury as ‘severe’. He underwent emergency surgery to expose the depressed skull fracture, elevate the bone and remove the blood clot in order to stop the active bleeding. Dr Bulluss emphasised the significant risk of the blood clot, indicating that the mortality rate of such an injury is about 50 to 60 per cent if left untreated. In other words the injuries were life-threatening and Mr Duncan required surgery to save his life.
17After surgery, Mr Duncan was sent to intensive care and placed on an intubator so that he could breathe. According to Dr Bulluss, the concern was that Mr Duncan wouldn’t be able to breathe properly after surgery due to the extent of his facial swelling.
18Following the initial surgery, Mr Duncan underwent a second surgery on 15 February 2021 to fix the fracture to his jaw.
19Mr Duncan was placed in an induced coma. He was extubated after 48 hours and placed on anti-seizure medication along with pain relief and other medication. He estimated that he remained in hospital for three to four weeks.
20The process of physical recovery was a slow one. Mr Duncan gave evidence that he could only eat pureed food due to the jaw surgery.
21Ms Bronwyn Hall, Clinical Neuropsychologist gave evidence which was unchallenged. She confirmed that Mr Duncan has suffered an acquired brain injury as a result of the assault. His brain injury has resulted in his speech becoming slurred. Other people point out his slurred speech. He has lost his sense of smell and his sense of taste has been impacted. His memory is affected.
22According to Ms Hall, as a result of your actions, Mr Duncan suffered changes to his general functioning. She said –
‘His memory was poorer. … he was just generally more easily confused and more easily fatigued and frustrated. He had also lost his sense of smell, which is commonly seen in people who have sustained a traumatic brain injury. … and he experienced things like sensory changes. I think he described, ah, dizziness and, um, I think spine tingling, something to that effect.’
23With regard to his overall cognitive functioning Ms Hall gave evidence that Mr Duncan is now operating at ‘between the extremely low and borderline range. … his verbal comprehension skills are in the low average range; his perceptual or visual reasoning skills are in the borderline range; the overall measure of his attention and working memory fell in the extremely low range; his processing speed, or speed of his thinking, was particularly poor. … in the extremely low range and worse than 97.7 per cent of the rest of the population.’
24Further, ‘…his learning ability, or ability to encode information was particularly poor across all measures … [falling into] the extremely low range across all tasks in that domain. And his ability to recall that information after a delay was also impaired, falling in the extremely low to borderline range.’
25Ms Hall stated that Mr Duncan’s ability to multi-task was ‘a long way below where I would expect it to be, in the extremely low range.’
26Mr Duncan now suffers epilepsy and is medicated for that condition. The Trial was adjourned in May of this year because Mr Duncan suffered a significant epileptic fit on the day he was due to give evidence.
27Mr Duncan has a pre-existing diagnosis of schizophrenia. He gave evidence that training and physical exercise was important for his mental health. Since your assault of him his experience of dizziness and increased fatigue has impacted his ability for physical exercise. That is clearly a source of distress and frustration to him.
28He continues to see doctors and therapists including an occupational therapist and neurologist. He referred to his need for constant prompts to keep appointments and go about his daily life.
Victim Impact Statement
29Mr Duncan provided a Victim Impact Statement dated 11 December 2023.
30He confirmed his diagnosis with epilepsy. He says this has a detrimental impact on his choice to drive and to have his own independence. He requires the support of NDIS for everyday life and is scared for his future.
31Mr Duncan hopes to work part time in the future but is concerned that an employer may not understand that he constantly forgets tasks, is frustrated easily and will need supervision. This creates concern about his financial future and he worries about how he would provide for any future family.
32His struggles with memory are a particular frustration. He says people ‘used to call me Macbook ‘cause I could remember faces, places I’ve been. I could even remember things from childhood… my memory was immaculate.’ He says now it is not the same.
33Physical training was the one thing that helped Mr Duncan to address his mental health. Due to your actions, he cannot train at the same level that he used to. He feels lightheaded and cannot play sport anymore as he is concerned about the risks of another blow to the head.
34He says, ‘I struggle to come to terms with how my life has changed so much. I feel confused, angry and frustrated. I get confused with conversations and don’t understand a lot anymore. …. I have memory loss; I can be mid-sentence and I forget what I am talking about. I have to use whiteboards and diaries and write everything down and even then, I forget. It is exhausting.’
35I take into account Mr Duncan’s victim impact statement and those contents from his evidence.
Interpreting the jury verdict
36Before I turn to the sentencing principles which guide my task I must make findings of fact consistent with the jury verdict. I make the following findings.
37There is no doubt the jury rejected your versions of events as lies.
38There is no doubt they accepted Mr Duncan as a witness of truth. They accepted, despite the issues raised in cross examination regarding his diagnosis of schizophrenia, his memory issues since this event, and his past history of drug use and criminal offending, that they could rely on his evidence about what had occurred. In my view his evidence regarding the lead up to these events and regarding what happened on the day was unshaken by cross examination.
39I accept, as the jury must have, that you called him a dog and hit him to the face. I accept that the hook to his face likely caused the fracture to his jaw.
40I accept he fell as a result of that hit and hit his head.
41In my view, there would be no basis for me to conclude that the jury, having accepted Mr Duncan’s evidence of those events did not also accept his evidence that once he was dazed and on the ground, you stomped on his face.
42I find to the requisite standard that you stomped on his face.
43In my view the full extent of Mr Duncan’s facial fractures, and in particular the fracture to his maxillary sinus, and the significant swelling to his face, likely occurred as a result of the stomping to his face and not from a single punch.
44Whether the full extent of the skull fractures occurred as a result of the fall or as a result of being stomped on, or both, is not crucial to understanding the jury’s conclusion. Either way, the jury by their verdict, was satisfied of element two – that your actions caused his serious injuries.
45Element three reflects their conclusion that you were aware your actions – of punching him to the face and then stomping on his face – were likely to result in serious injury but you persisted regardless.
46If the jury had concluded that you punched Mr Duncan and he fell to the ground sustaining the skull fractures, and that you did not stomp on his face and head, in my view they would have returned a verdict of causing injury as opposed to serious injury. In other words, if they did not believe you stomped on his face they would have accepted that in punching him your state of mind was to cause him injury but the unforeseen result was a serious injury. They did not reach that conclusion although it was available to them.
47Their verdict of causing serious injury recklessly in my view reflects their acceptance that you punched him, he fell, and you stomped on him aware of the probable resulting serious injury but proceeding anyway.
Sentencing Principles
48The maximum penalty for a charge of causing serious injury recklessly is 15 years imprisonment.
49Sentencing must have as a focus the principles of general deterrence, denunciation and community protection. That is, the sentence I impose must generally deter other persons from violently assaulting another person.
50It is apparent that your motivation was born out of your mistaken belief that Mr Duncan had been ‘a dog’, namely that he had in some way ‘dobbed on’ another prisoner. That was in fact not the case. Mr Duncan at no time engaged with authorities about another prisoner. He made clear that he was aware of the ‘prison code’ and that was part of his dilemma about making a statement about this offence.
51More to the point, even if it had been the case, it provided no excuse for you to act in the way you did against him. Retribution for some perceived wrong is no excuse for violence. For that reason the sentence I impose must deter others from acting in a similar fashion.
52This sentence must denounce violence generally and must seek to protect another person from an unprovoked attack on them.
53In addition to those general principles, the case law bears out that when such an assault occurs in the prison environment, there are unique considerations. As His Honour Justice of Appeal Harper stated in Duran de Castres v R[3] –
‘There is in my opinion no doubt that the custodial setting is a relevant sentencing consideration in this case – as in most if not all cases of prisoner-on-prisoner assaults. At the same time, I agree … that an offence when committed by a prisoner is not so unlike an assault on a citizen in the general community as to make an identified range of appropriate penalties in the latter case irrelevant to the former.
It is nevertheless true that life in prison is very different from life outside; and that difference must be reflected in the courts' attitude to assaults by inmates on other inmates. Theirs are closed communities. In them, dislikes can quickly turn to hatred. Cliques will form. Gossip will be rife. Bullies will tend to thrive. Outbursts of anger, in the particular case unpredictable by prison staff, will occur and may quickly turn violent.
Violence, then, is much closer to the surface there than in the general community. If discipline is to be maintained – and, without it, prison life would be nasty, brutish and short – outbreaks of violence must be dealt with appropriately. Prison authorities will be assisted if it is known that the courts will in general regard deterrence as having a significance inside prison greater than that which it enjoys outside: the word will get around, inside prison, in ways which cannot be replicated in the general community. Another consideration is that, if rules are not enforced, prisoners will tend to take advantage of a lack of discipline, thus compounding the resultant difficulties.
The counter to this is not harsh discipline. It is fair and predictable discipline. The courts must play their part in this.’
[3] Duran de Castres v R [2011] VSCA 377.
54In the same case His Honour Justice of Appeal Ashley stated -
The fact that an offence of violence is committed in a custodial setting renders general deterrence of paramount importance as a sentencing consideration. In part, that is because the victim has no choice but to be where he or she is, and has at least a reduced ability to take prudent measures for his or her own safety. In part, it is because the courts cannot permit the law of the jungle to take hold in prisons.
Particularly if the offender has a past history of violence, commission of an act of violence in a custodial setting will underline the importance of specific deterrence as a sentencing consideration.
In the presence of the two circumstances described, matters going in mitigation of sentence will be of lesser weight in the sentencing synthesis. The question in the particular case will be the extent to which the circumstances tending towards a heavier sentence operate. It is not a question, however, of there being a tariff for the particular offence if committed whilst in custody which is different and unrelated to the pattern of sentences generally for that offence.
55Your prior criminal record in the Magistrates’ Court dating to 2016 relates mainly to dishonesty offences. However, it also includes 4 robberies in 2016, weapons offences, criminal damage, intentionally damaging property and unlawful assault over the next four years to the last entry of July 2020. On that occasion you were sentenced to one month imprisonment for breaching a CCO. Prior to that time you have variously been fined, or placed on a CCO which you breached.
56Of more relevance, though not a prior conviction, at the time you assaulted Mr Duncan you were on remand for a range of charges of serious violence, the most serious of which was murder. Four days prior to this offending you had been arraigned and pleaded guilty to manslaughter, causing serious injury intentionally and three charges of common assault.
57Those charges related to offences committed on 20 February 2020 against a number of strangers over the course of a single day. You variously pursued and assaulted the three victims in company with your two co-offenders, using various weapons including a pickaxe. You punched and kicked one of the victims repeatedly in the head and body. You assaulted the man who ultimately died with the pickaxe while he was on the ground and you struck him to the head with your weapon.
58You were sentenced by His Honour Justice Elliott in the Supreme Court on 15 June 2021 to 11 years and 2 months imprisonment with a non-parole period of eight years and two months. 481 days of pre-sentence detention was declared.[4]
[4] Director of Public Prosecutions v Timoteo & Ors [2021] VSC 312
59In those circumstances, the two circumstances described by His Honour Justice of Appeal Ashley are present and pertinent. The consideration of specific deterrence looms large, and factors in mitigation tend to diminish in their significance.
60In addition to those considerations, although this is a charge of causing serious injury recklessly, I am mindful of the case law which demonstrates that causing serious injury recklessly cases where the facts are very similar to those of causing serious injury intentionally will have little difference in sentence.
Objective Gravity
61Turning to my assessment of the objective gravity of your offending. I take into account that this was a relatively brief attack, however for the reasons which follow, in my view this is a serious example of the offence of causing serious injury recklessly.
62In summary, your offending was entirely unprovoked. Mr Duncan had no warning and no opportunity to protect himself.
63You assaulted him to the face in a forceful way, and then to the head when he was down and virtually out. You foresaw the probability of serious injury.
64The degree of recklessness in your case is high. First, you punched Mr Duncan out of the blue. That was pre-meditated, though I could not conclude for how long you had decided to assault him. Some days earlier he remembered you saying ‘dog’ as you were watching TV. Immediately before this assault you called him ‘dog’.
65The punch you inflicted was very forceful, in a hook motion and dropped him to the ground.
66The second aspect of your offence is constituted by the fact of stomping on his face. He was already knocked down by you. He was dazed. He was completely vulnerable. Although that act followed in quick succession, I conclude it is an aggravating feature of your offending.
67Both by way of the punch and the stomp you targeted his face and head – vulnerable areas of his body.
68You were a much bigger man – approximately 109kg, fit, training in boxing and playing rugby. He was 68kg.
69He was locked in the cell with you in a prison unit which was unmanned. He had no means of escape and no immediate option for help.
70The level of his serious injury is very high. It is clear from his evidence that it has impacted most areas of his functioning and his life.
71The expert evidence of Dr Bulluss detailed the physical result. The expert evidence of Ms Hall established the nature of his acquired brain injury and the cognitive deficits as I have outlined, and the fact that his impairments are permanent. For the remainder of his life he will suffer epilepsy. For the remainder of his life he will require assistance in his everyday living. He is only 32 years old.
72Your Counsel submitted that you ‘sought to prevent further injury to Mr Duncan (preventing him from falling over) and obtained medical attention.’ The facts bear out that you called for help over the intercom, however, I reject the submission that you did anything more than that. It is reasonable for me to infer that having recognised the seriously injured state he was in, you called for help to ensure the situation did not get worse for you. The fact you were found holding him up from behind when prison officers arrived does not equate to offering him any help. The fact you lied about what had occurred reflected your disregard for him and your focus on yourself.
73Your moral culpability is extremely high. This is an offence of serious violence.
Personal Circumstances
74I turn now to your personal circumstances. I have adopted those from the decision of His Honour Justice Elliot with additions where appropriate.
75You were born in Fiji in April 1997 and are now 26 years old. You are the youngest of 5 siblings and have a younger paternal half-brother.
76Your childhood was characterised by instability, after your parents separated when you were young. Your mother re-partnered and it seems you had little to do with her. Your father migrated to Australia. You and your siblings were essentially abandoned by your parents and were left in the care of extended family members in Fiji. In particular, you were cared for by an Aunt and Uncle.
77At age five, you migrated to Australia with your two older brothers to live with your father, who by then had re-partnered. Your sisters remained in Fiji and continue to live there. You initially struggled to cope due to the language barrier and the cultural change. You attended several different primary schools.
78You were raised by your father who was very strict. You say he meted out physical punishment to you. Your reports of abuse by him are corroborated by the letters written by your former partner Ms Kristen Marsh, and her mother Ms Vikki Marsh.
79From a young age you were focused on doing well both in your schoolwork and in sport. At 15 years of age, you worked part time at a fast food outlet, in addition to your school and sporting commitments.
80You completed Year 11 at Braybrook College by way of the VCAL pathway, which involved completing a number of civil construction certificates. At 17 years old, you left school. You started a bricklaying apprenticeship in addition to working night shifts at a fast-food outlet. You were playing rugby competitively for the Footscray Bulldogs, then Powerhouse, the Melbourne Unicorns and North-West Wolves.
81Your father passed away when you were 18 years old. This was a significant, profound and destabilising event. You became depressed and were overwhelmed by feelings of parental abandonment. You were left on your own, without the strict structure and support your father had provided but also, according to Ms Marsh it meant you never resolved the issues of your childhood. In this context you drifted towards alcohol and cannabis use.
82Following your father’s death you lived by yourself. You lost your employment, and for the next 3 months spent most of your days drinking and smoking cannabis with friends. Your house became overrun as you became completely absorbed in that lifestyle.
83Through rugby, you had met Nathan Timoteo. You and he became friends and you lived with his family for a period of time. You consider Mr Timoteo’s mother to have played a significant maternal role in your life. I have received a letter authored by her. She describes you as her son.
84With the stability of living in a family environment, you obtained employment installing panels on houses and worked in that job for the next 6 to 8 months. You were then employed as a tree-lopper in Mr Timoteo’s father’s business. At the same time, you were working night shifts at the airport installing panels on luggage conveyor belts.
85At 21 years old, you met your now former partner, Ms Marsh. Her mother like Mrs Timoteo recognised you as a young person needing love, structure and guidance.
86On 20 April 2018 your first child Aria was born extremely premature at 23 weeks gestation and did not survive. Ms Marsh writes of your grief and devastation. You found it profoundly difficult to deal with the death of your daughter, and your alcohol and cannabis use increased as a way of trying to cope.
87On 21 June 2019, your second daughter Zinnia was born. Your relationship with your partner has ended, however you and she have remained on good terms and she has facilitated contact between you and your daughter. She has been present at times throughout these proceedings in addition to writing the letter I have referred to.
88Mr Timoteo became your co-offender in the manslaughter and violence of February 2020.
89Mr Howson submitted that there were acute stressors operating on you in the lead up to this offence in February 2021, specifically the breakdown of your relationship with Ms Marsh ‘in the months prior’, losing your Aunt in Fiji who had looked after you after your parents’ separation ‘over that same period’, and your inability to care for and support your family.
90Although Mr Howson submitted that the principles enunciated by the High Court in Bugmy v The Queen[5] are applicable here, in my view your background does not reach the level of deprivation required to reduce your moral culpability in the way outlined in that case. Having said that, I am mindful of the broadening of definitions of deprivation in later cases.[6] More to the point, I have taken into account your background, particularly the instability of your formative years and the way they have shaped you.
[5] Bugmy v The Queen (2013) 249 CLR 571.
[6] Sabbatucci v R [2021] VSCA 340; Roosevelt Newton (a pseudonym) v The King [2023] VSCA 22.
Current Circumstances
91You are currently serving the sentence for manslaughter. After your assault of Mr Duncan you were placed into a management unit. You remained there until December 2021. You then returned to mainstream where you have remained.
92You continue to maintain a relationship with your daughter. You have daily teleconferences and frequent in-person visits. You have the support of those who have written letters.
Prospect of Deportation
93In the days after you were sentenced for the manslaughter and other offences, your permanent residency was cancelled, and you became an unlawful non-citizen. The implications are that upon your release from custody you are likely to be deported.
94Although that is a matter for the Executive, that fact of your likely deportation is relevant in sentencing in the following way.
95You have been living in this country since you were a five year old. Your formative years have been here. Your partner and your daughter are Australian citizens and will likely remain here. Although you have had frequent visits back to Fiji to see your sisters, mother, and the Aunt and Uncle with whom you resided as a child, you have lived permanently here. Your Aunt has now deceased.
96The prospect of being deported in those circumstances weighs on you and is a matter I take into account in sentencing. I accept it makes your time in custody more difficult as a result of the uncertainty that situation creates.[7]
[7] Guden v The Queen (2010) 28 VR 288
Plea of Not Guilty
97You pleaded not guilty to this offending and opted to run a trial which is your right. That fact does not aggravate the offending or your personal circumstances. However, it means you do not receive the benefits which flow from a plea of guilty in recognition of its utilitarian benefit, or from that plea of guilty as an expression of remorse.
98Mr Duncan gave evidence both at a committal and at the jury trial. That does not aggravate your sentence but is the reality for a victim when you have not accepted your offending. You told a number of lies to authorities and then to the jury in the witness box.
99It was not suggested that you have demonstrated any remorse.
Age
100Mr Howson argued that the principles of sentencing a youthful offender are applicable. You are now at the older range for application of such principles, however you were only 23 when you committed this offence.
101The principles stemming from the Court of Appeal decisions of Azzopardi v The Queen[8] and R v Mills[9] are well understood. They recognise three major factors of sentencing a younger offender. First, a lack of maturity, insight and judgment may reduce the appreciation of the nature, seriousness and consequences of offending and in that sense lesson moral culpability.
[8] Azzopardi v The Queen [2011] VSCA 372
[9] R v Mills [1998] 4 VR 235.
102Second, there is greater potential for a younger offender, typically still in a state of development to be reclaimed and rehabilitated.
103And third, courts are cognisant of the potential negative impact of incarceration in an adult prison.
104I take those considerations into account to an extent. As I said you are at the older age bracket for those considerations to fully apply. Further, those principles must be moderated in the face of serious offending such as this, and where you were already on remand for extremely serious violence.
Prospects of Rehabilitation
105Largely for those same reasons, your prospects of rehabilitation are guarded.
106You have a relatively limited prior criminal history as I have described. However, the manslaughter and associated offences which occurred on 20 February 2020 saw you remanded in custody. Despite facing those serious charges and knowing of the consequences of those offences, including the death of one victim, you committed this serious offence. The fact of your arraignment and pleas of guilty to those charges in the days before this offending should have brought home to you the seriousness of your violent behaviour.
107I accept however that your prospects of rehabilitation are not extinguished. You have a work history. You have undertaken various courses in custody including general education courses to improve your chance of employment such as welding, sound editing, traffic control, horticulture, cleaning and first aid. You have undertaken drug rehabilitation courses including nine sessions over 2020 to 2021 and a course on alcohol, drugs and loss in 2023. You have undertaken courses generally to better yourself such as respectful relationships, positive parenting and participating in an Aboriginal Art course and Pacific Islander Cultural Art Class.
108You have family and other support in the community. Those who have written letters in support believe you to be a diligent worker, someone who has undertaken some self-improvement in custody and according to Ms Marsh ‘with strong guidance, love and support’ can be a contributor to your family and the community.
109Your young daughter is clearly a motivator for you to continue to better yourself.
110I take those matters into account.
Covid-19
111I take into account that you have been in custody during the Covid-19 pandemic. That has been a very difficult time for prisoners in Victoria and there must be recognition of that fact in sentences. Although that consideration was taken into account when you were sentenced in June 2021, the Covid-19 pandemic was ongoing and the after affects continue to reverberate. Therefore, those are matters I should and do take into account.
Application of s.16(3) Sentencing Act 1991
112An issue arose during the course of the plea regarding the application of s.16(3) of the Sentencing Act 1991. That section essentially displaces the presumption of concurrency contained in s.16(1) and mandates cumulation of sentence on any uncompleted sentence when imposing a term of imprisonment in respect of a ‘prison offence’.
113The definition of ‘prison offence’ in the Sentencing Act at s.3 is defined as having the same meaning as Part 7 of the Corrections Act 1986 which in turn defines it as a contravention of that Act or the Corrections Regulations 2019. The regulations relevantly define a prison offence in clause 65 to include ‘A prisoner must not (a) assault … another person.’
114The question for determination therefore is whether the offence of causing serious injury recklessly is ‘an assault’ for the purposes of s.16(3) Sentencing Act. It would be extremely surprising if that was not the case, however, ordering entire cumulation is a draconian measure and there does not seem to be higher court authority directly on this point.
115The Prosecution, relying on the authorities of Roach v The Queen[10] and R v Devries[11] submit that the offence of causing serious injury recklessly is an assault and as such s.16(3) applies. Dr Harkess submits that causing injury offences in almost every circumstance will encompass all elements of assault.
[10] Roach v The Queen [2020] VSCA 205.
[11] R v Devries [2005] VSCA 95.
116Your Counsel contended for a narrower construction. He relied first on rules of statutory interpretation where draconian measures are at play including the fact that you are not charged pursuant to the Corrections Act or Regulations, but under the Crimes Act 1958. He referred to the fact that an assault under the Regulations can only be met by a fine.
117Dr Harkess also pointed me to s.50(5A) of the Corrections Act which allows for both disciplinary action pursuant to the Regulations and referral for the matter to be dealt with under the criminal law. In other words, the Corrections Act contemplates both consequences. The fact that the Sentencing Act picks up the definition of a prison offence from the Corrections Act and Regulations broadens its application.
118Mr Howson also referred me to and relied on the first instance ruling of His Honour Judge Smith in this Court in a matter of DPP v Hope[12]. However, and despite finding that s.16(3) did not apply in that case, His Honour in Hope commented that it would be ‘surprising’ if an offence of assault under the Crimes Act were not to be considered an assault for the purpose of s.16(3). Specifically, that total cumulation could be ordered for a less serious assault offence but not a more serious offence prosecuted under the Crimes Act. Those comments of Judge Smith were referred to approvingly by the Court of Appeal in Roach v The Queen.[13]
[12] DPP v Hope [2017] VCC 1315.
[13] Roach v The Queen [2020] VSCA 205
119Their Honours President Maxwell and Justice of Appeal Weinberg stated –
‘Counsel for the respondent submitted that the appellant’s conduct in splashing boiling water over another prisoner was, on any view, an assault. The fact that it was an assault of an aggravated nature (since it encompassed the causing of injury as well as the basic elements of an assault) did not take it outside the scope of s 16(3). It would be a strange result, it was submitted, if a lesser charge of assault would have triggered the presumption of cumulation while the significantly more serious offence committed by the appellant did not.
Given that the question does not arise for decision, we do not express a concluded view. As the respondent pointed out, those representing the appellant in the Magistrates’ Court accepted that s 16(3) was applicable. That was, in our view, unsurprising in the circumstances. For the reasons advanced by the respondent, there is obvious force in the proposition that the appellant’s offending conduct was properly characterised as ‘assaulting a person’ and hence was a ‘prison offence’ within the meaning of s 16(3).’
120There have been a number of other decisions of Courts at first instance where this issue has been considered.[14] The conclusion in each has been that an offence under the Crimes Act the elements of which encompasses an assault, and which is committed in a prison is a ‘prison offence’.
[14] DPP v Stewart [2021] VCC 1007, The King v Hall [2023] VSC 151.
121In my view that conclusion is in line with the authorities which I have referred to regarding the aggravating feature of a prison setting for a violent offence.[15] In determining that cumulation should be ordered for a prison offence, Parliament has also taken an approach which recognises that setting as one which increases the seriousness of an offence. The draconian nature of the provision is ameliorated by the ‘carve out’ which allows for a different outcome in a case where there are exceptional circumstances.
[15] Duran de Castres v R [2011] VSCA 377.
122In those circumstances I conclude that an offence of causing serious injury recklessly is an assault and as such is a prison offence pursuant to the Corrections Act 1986. The consequences are that the sentence I impose must be entirely cumulative on the sentence you are currently undergoing, unless exceptional circumstances exist.
123It was not argued that there are exceptional circumstances here.
Totality
124Mr Howson argued in that event that I must still consider the principle of totality when determining sentence, taking into account that it will be cumulative on the sentence you are undergoing. He referred me to the Judicial College of Victoria Sentencing Manual.[16] Specifically that the ‘preferred approach’ when sentencing for multiple offences, or where sentences may overlap with an existing sentence, involves determining the appropriate sentence for an offence, determining the extent of cumulation or concurrency, and then standing back to consider totality.
[16] Judicial College of Victoria Sentencing Manual, 3.3 – Totality.
125That approach may not be possible under certain legislative schemes. Section 16(3) is one of those. Where that approach is not possible, a secondary approach may be to ‘moderate’ the sentence imposed. The authors state ‘This may result in a head sentence that does not appropriately reflect the gravity of the offending, which is unfortunate but is to be preferred to the injustice of imposing a longer head sentence.’ Where specific legislation restricts the sentencing Court’s discretion, the authors note, ‘The need to follow the secondary approach in this instance arises because the legislative preclusion does not exclude operation of the totality principle.’[17]
[17] Mill v The Queen (1988) 166 CLR 59, 6-7; DPP v Rongonui (2007) 17 VR 571.
126Dr Harkess drew an analogy to the legislative scheme applicable to sentencing serious offenders which reverses the usual presumption of concurrency and also allows for disproportionate sentences, noting that the Court must take care not to undermine the legislative policy by applying the totality principle as if s 16(3) did not exist.
127I am sentencing you for a single offence. Nonetheless I must make orders regarding cumulation in relation to the uncompleted sentence you are undergoing. I accept that totality is a relevant consideration.[18]
[18] DPP v Rongonui (2007) 17 VR 571, R v Piacentino [2007] VSCA 49, R v Ahmad (2007) 15 VR 501.
128His Honour Justice of Appeal Redlich in Gordon v The Queen[19] observed the tension between totality and sentencing under the serious offender scheme. He noted that there is no clear guidance as to the circumstances in which the statutory presumption of full cumulation should override the principle of totality. However, His Honour stated that as the objective gravity of the total ‘offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with the legislative policy… and the principle of totality.’ Analogy may be drawn here.
[19] Gordon v The Queen [2013] VSCA 343.
129What is required of me is that I am to determine the appropriate sentence for this offence committed against Mr Duncan. I am required to cumulate the entirety of that sentence on the sentence you are undergoing. In doing so, I must take into account the principle of totality. I must not order an artificially low or inadequate sentence in light of totality, however, where I must order entire cumulation, I may impose what would otherwise be a modest sentence for this offence. I have moderated, to a degree, the sentence I have imposed in light of the fact that you are still a young man and that fact should play a part in moderation of the sentence I would have otherwise imposed.
Current sentencing practices
130In determining the appropriate sentence for this offence, I have taken into account current sentencing practices, in particular a number which Counsel helpfully referred me to.[20] As always there are differences in offender and offending. Causing serious injury recklessly covers a wide range of factual scenarios which adds to the wide range of sentences imposed. The actus reus can range from single punches to sustained attacks. They can include use of weapons or presence of co-offenders. A wide array of serious injury is covered from bruising and broken bones to brain injury. It is less common to see permanent disability and sentences where there is such serious injury are more severe.
[20] See e.g. DPP v Stewart [2009] VSCA 220, Ashe v The Queen [2010] VSCA 119, Al Wahame v The Queen [2018] VSCA 4.
131Ultimately I must take into account all the circumstances of this case and impose a just sentence. That is what I have endeavoured to do.
Global Non-Parole period
132Once I determine the total effective sentence, pursuant to s.14 of the Sentencing Act I am required to set a new global non-parole period across that total effective sentence.
Sentence
133Mr Bolalailai, on the charge of Causing Serious Injury Recklessly to Trent Duncan, you are convicted and sentenced to 7 years and 6 months imprisonment.
134I direct that sentence is to be served cumulatively on the sentence you are currently undergoing, making a total effective sentence of 18 years and 8 months imprisonment.
135I declare that the new global non-parole period across both indictments is to be 11 years and 2 months imprisonment. That is, you are required to serve a minimum term of 11 years and 2 months imprisonment before you become eligible for parole.
136The commencement date for that non-parole period is the date of His Honour Justice Elliot’s sentence, of Director of Public Prosecutions v Timoteo & Ors.[21]
[21] R v Rich (No 2) [2002] VSCA 17.
Pre-Sentence Detention
137There is no pre-sentence detention applicable to the sentence I have imposed on the charge of causing serious injury recklessly. As such, there is no need for me to make any declaration as to your pre-sentence detention. The previous declaration of His Honour Justice Elliot remains effective.
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