Director of Public Prosecutions v Ene, Kakato & Taumoefolau

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0259
S ECR 2022 0088
S ECR 2021 0260
S ECR 2023 0064

DIRECTOR OF PUBLIC PROSECUTIONS
v
RICHARD ENE LAISENI KAKATO CHRISTIAN TAUMOEFOLAU	Accused

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATES OF HEARING:	18 December 2024, 19-20 March 2025
DATE OF SENTENCE:	20 May 2025 (First Revision 11 July 2025) [1] [2]
CASE MAY BE CITED AS:	DPP v Ene, Kakato & Taumoefolau
MEDIUM NEUTRAL CITATION:	[2025] VSC 281

[1]This sentence was revised in compliance with suppression orders which I made on 7 October 2024, which apply for a period of fifty years from that date, or until further order. The original unrevised sentence will remain restricted until cessation of that order.

[2]This sentence was further temporarily revised in compliance with separate suppression orders which I made on 7 October 2024, which relate to the name and identity of a co-offender in this matter. Once those orders lift, a further revised version of the sentence will be published.

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CRIMINAL LAW – Sentence – Murder – Planned attack upon an innocent victim for the purpose of protecting and enhancing the reputation of the Comanchero, an outlaw motorcycle gang – Accused all members of the Comanchero – Victim shot multiple times while driving home at night time – Extremely grave offending – High degree of planning – Steps to avoid apprehension after crime – Accused all awarded special patch as reward for their conduct – Roles of individual offenders – Very high degree of moral culpability – Mitigating factors – Whether head sentence of life imprisonment warranted in the circumstances – Whether non-parole periods should comply with s 11A(4) – Prospects of rehabilitation – Important sentencing purposes – Life imprisonment the necessary and appropriate head sentence for all accused – Non-parole periods reflect somewhat reduced role of Taumoefolau – Non-parole periods of 28 years for Ene and Kakato, and 26 years for Taumoefolau.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke KC with Ms D Karamicov and Mr P Pathmaraj	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused, Richard Ene	Mr T Marsh with Mr T McCulloch	Marshall Jovanovska Ralph Criminal Lawyers
For the Accused, Laiseni Kakato	Mr P Tehan KC with Ms B Myers	KPT Defence Lawyers
For the Accused, Christian Taumoefolau	Ms M Brown with Ms T Casey	Galbally Parker

HIS HONOUR:

Introduction

Richard Ene, Laiseni Kakato and Christian Taumoefolau, you have been found guilty by a jury, following a lengthy trial, of the murder of Mitat Rasimi, an entirely blameless and innocent person whose violent death was so callous, cruel and unwarranted as to almost defy belief.

As Mr Rasimi drove along a quiet suburban street in Dandenong and was only metres away from his home where his wife awaited his return, you, Ene and Kakato, having stalked and followed Mr Rasimi, drove alongside his vehicle in a stolen orange Ford Ranger utility (‘the Ranger’) and shot him dead. I am satisfied that you, Ene, were the driver of the Ranger at the time, and that you, Kakato, were the person who shot Mr Rasimi. I am satisfied that you, Taumoefolau, were complicit in the murder, and in particular, played an integral part in its commission by sourcing the Ranger used in the crime.

In circumstances upon which I will soon elaborate, the motive which all three of you acted upon in carrying out this murder stemmed from an abortive attempt by the Comanchero Outlaw Motorcycle Gang (‘OMCG’), of which you were all members, to recover a debt supposedly owed by a person known as Witness L, to a man entirely unconnected with the Comanchero, the resulting loss of face to the organisation, the perceived need for the Comanchero to exact retribution to safeguard their well-earned and fearsome reputation as an organisation not to be trifled with, and a belief that the necessary statement could appropriately be made by the deliberate killing of an entirely innocent person. You each also sought to increase your standing within the club through this callous and senseless act.

I am satisfied that the three of you were guided by other members of the Comanchero to carry out the crime. Notwithstanding that, I am satisfied that the three of you were all willing participants. As such, there is no doubt that you are deserving of punishment of a very high level, as befits the shocking nature of your offending.

In your case, Ene, you also fall to be sentenced on a charge of being a prohibited person in possession of a firearm. That charge was contained in a separate indictment from the murder, and you were arraigned and pleaded guilty to the charge on 18 December 2024. The charge arose from the finding of a Carrera 9 mm semi-automatic firearm inside a satchel found under the driver’s seat of a motor vehicle parked at your premises on the occasion of a search of your home on 7 November 2019. Your DNA was found on the gun. The serial number of the firearm had been erased. At the time, you were a prohibited person by virtue of your conviction on a charge of theft of a motor vehicle on 11 December 2018.

Facts
Background

At the time of these events, you, Ene, Kakato and Taumoefolau, were all patched members of the Comanchero OMCG.

Mitat Rasimi had previously had a connection with the Comanchero and had attended the Nitro Gym in Hallam. He was known to some members of the Comanchero, but there was no evidence to suggest that any previous interaction between them and Mr Rasimi was the cause of the decision made to have him killed.

In about 2014, Christopher Burrows (‘Burrows’) was introduced to Witness L. Burrows invested $216,000.00 in a property development planned by Witness L through his company. The company went into liquidation and the project was not completed. Burrows unsuccessfully sought the return of his investment from Witness L. At the time these events were unfolding, Burrows became acquainted with John Sercia (‘Sercia’), a business consultant, who shared office space with a man named Amrinder Singh (‘Singh’), who knew some members of the Comanchero including you, Kakato. Burrows mentioned, in passing, the financial issue he had to Sercia, who, without seeking Burrows’ permission to do so, passed the information on to Singh, who had previously informed Sercia that he could arrange for people to collect the debt. Through Singh, it seems, information came to the attention of the Comanchero about the debt purportedly owed by Witness L to Burrows.

In early 2019, you, Kakato, and Witness A, a Comanchero, met at the Nitro Gym, and were asked by other members of the Comanchero to assist in the debt recovery. It was indicated that Nabil Maghnie (‘Maghnie’), who, whilst not a member of the Comanchero, was a friend of some of its members and was perceived by them as a good negotiator, would also assist in the process. A few days later, Witness A and you, Taumoefolau, met with Maghnie at a café in Moonee Ponds. Maghnie agreed to assist.

Maghnie began communicating with Witness L shortly after this meeting. A meeting was arranged at the Pavilion Restaurant and Bar (‘the Pavilion’) in Dandenong on the evening of 5 February 2019. Kakato and Taumoefolau, you attended the meeting with Maghnie and Witness A; you, Taumoefolau, acted with Maghnie as negotiators at the meeting, while the other two men remained some distance away. At the meeting, Witness L, who was present with a person whom I will refer to as Witness F, denied owing the money and asked to be provided with proof of the debt.

The following morning, Witness A, and you, Kakato and Taumoefolau, met with senior members of the club and informed them about what had occurred. The senior members insisted that the money should be paid.

A further meeting in connection with the debt took place on 14 February 2019 at a gym. Maghnie drove Witness A, and you, Kakato and Taumoefolau, to the meeting. On your arrival, you found a large number of men, and relatives of Witness F, present, along with Witness L and Mitat Rasimi. The meeting did not go well from the perspective of the Comanchero. Witness L again denied the debt. No agreement was reached. Some of those present on the other side of the meeting behaved in an intimidating fashion.

The three of you met with Maghnie, Witness A and senior members of the Comanchero at the Red Rooster store in Dandenong North after the meeting. Those in attendance at the gym related the events of the meeting, and senior members of the Comanchero were angry, taking it as an affront to them and the Comanchero.

A preliminary plan was made to murder either Witness F or Witness L. Maghnie was tasked with sourcing firearms, and you, Taumoefolau and others, were tasked with sourcing a stolen car, for use in the plan. Surveillance was also ordered on a number of locations where Witness F and Witness L were expected to be observed.

The plan to murder either Witness F or Witness L went nowhere. Over time, various plans were discussed by the three of you and others within the Comanchero, including plans to injure but not kill Witness F and Witness L. However, plans to attack either of those men did not come to fruition, essentially because both men were difficult to find. Eventually, the plan was hatched to murder Mitat Rasimi. On the prosecution case, Mitat Rasimi was put forward by you, Kakato, as a target for murder, in a meeting with various members of the Comanchero.

On an occasion after 14 February 2019, likely on the evidence to have been on 17 February 2019, a meeting was held at your house, Ene, attended by all three of you and Witness I. At this meeting, the plan to murder Mitat Rasimi was discussed in some detail, and it was agreed that those to be directly involved were to be the three of you, Ene, Kakato and Taumoefolau, with you, Kakato, designated as the shooter. The plan as discussed closely resembled the way in which the murder of Mr Rasimi eventually unfolded.

A Ruger .22 calibre pistol was sourced for the job, along with a second gun, after Maghnie had failed to provide appropriate weapons. You, Kakato, were seen by Witness I to be in possession of these guns.

A few days before the shooting, according to the evidence of Witness A given in the trial, you, Kakato and Taumoefolau, and Witness A, were summoned to a meeting with senior members of the Comanchero. This meeting was described during the trial as ‘the driveway meeting’. During the meeting, the evidence of Witness A was that senior members expressed their frustration that Mitat Rasimi had not been killed, and an order was given to those present, ‘just kill the cunt’.

After some members had left the driveway meeting, you, Taumoefolau, expressed unwillingness to be involved in the murder. Despite this, the evidence indicated that you continued to play your part. On the evening of 2 March 2019, you, Taumoefolau, took steps to arrange for the delivery of the Ranger by your associates in Melton to you, Ene. The vehicle was collected from Melton by you, Ene, after you were driven to the location by a friend of yours. You then drove the Ranger back to the south-eastern suburbs of Melbourne, and eventually parked it around the corner from your home.

During the course of that evening, the Ranger was driven to a number of relevant locations, including repeatedly around the block where Beletti’s Restaurant Café Bar (‘Beletti’s’) in Dandenong, was located. Beletti’s was a location frequented by Mr Rasimi, and which he attended that evening. The Ranger also drove along Dawn Avenue, Dandenong, the street in which Mr Rasimi lived.

On the evening of 3 March 2019, Mitat Rasimi attended at Beletti’s. His presence there was discovered by the Comanchero as a result of surveillance. A hastily organised meeting occurred at your home, Ene, attended by you, Kakato, and Witness I. You, Taumoefolau, were also expected to attend, but did not arrive in time. At the meeting, it was indicated that Mr Rasimi had been located, and it was determined that the killing was to occur that night. As Witness I understood it, you, Ene, were to be the driver and you, Kakato, the shooter. Witness I was asked to be involved in the killing, but declined.

You, Taumoefolau, were supposed to be the driver of the secondary getaway car.[3] Because you did not arrive in time, arrangements were hastily made for another person to fill that role.
[3]Transcript of Proceedings, DPP v Richard Ene & Ors (Supreme Court of Victoria, Tinney J, 25 September 2024) (Evidence of Witness I) 1723.20-29 (‘Trial transcript’).

The Ranger was driven to the vicinity of Beletti’s, and proceeded to circle the venue several times. Sometime later, Mr Rasimi left the café and walked to his vehicle. He then drove away, and was followed by the Ranger, which, I am satisfied beyond reasonable doubt, was being driven by you, Ene, with you, Kakato in the front passenger seat. Mr Rasimi drove to Dawn Avenue, Dandenong. As he approached his home in his vehicle, the Ranger pulled up alongside him. You, Kakato, fired six shots from the Ruger pistol towards the driver’s seat of Mr Rasimi’s car. Mr Rasimi was struck by four of the shots. He died, sitting in his motor vehicle, only metres away from his home. The mechanism of his death was cardiorespiratory collapse due to significant internal blood loss.

The two of you departed the scene and the Ranger was driven to a pre-determined location in Mcmahens Road, Bangholme, about 7.5km from the murder scene. Efforts were made to set fire to the vehicle using an accelerant, but the car did not catch alight. You, Ene and Kakato, were picked up by another person and departed the scene of the attempted arson of the Ranger.

Following the murder, the three of you, along with another co-offender, were involved in steps taken to cover up your involvement in the crime. The firearm was disposed of in some fashion. It was never found. You, Ene, told Witness I that the firearm had been disposed of by an Islander man associated with you and Kakato. A man was charged with involvement in that event, but he was found not guilty by the jury. I reach no firm conclusion about how or where the firearm was disposed of, but it clearly was.

Also shortly after the murder, you, Kakato gave a magazine to Witness I and directed him to dispose of it, telling him that it was the second magazine for one of the pistols used to kill Mitat Rasimi.[4]
[4]Trial transcript (n 3) 1728.

On 5 March 2019 you, Ene, visited Witness A. You went for a walk in a park with him. During the walk, you relayed the circumstances of the murder, including that after the Comanchero discovered Mitat was at Beletti’s, you and Kakato followed Mitat in a car, and that when you pulled up beside him, ‘[Kakato] fired off some shots through the window…then [Kakato] said “Drive” and [you] said “No, finish it; empty the clip”’.[5]
[5]Trial transcript (n 3) 682.12-15.

On the evening of 5 March, each of you attended a meeting with Witness A and other senior Comanchero members at Cocomo’s restaurant in Rowville. New mobile phones were handed out by you, Ene, and by Witness A,[6] and each of you, along with your co-offender, disposed of your old mobile phones, and commenced to use the new ones.
[6]Ibid 918-919.

Later that same night, you, Kakato, met with Witness A and further discussed the murder. Witness A told you about Ene’s account, as set out at [27], and you refuted it, stating that Ene didn’t tell you how to do the shooting. [7]
[7]Ibid 744.

Sometime later, you, Ene, with the assistance of Witness I, destroyed your co-offender’s Ciphr phone at his request, by running over it with a motor vehicle and then disposing of it down a drain.[8]
[8]Ibid 1757.

Also shortly after the murder, you, Kakato, met with Witness I at Dandenong Plaza. You told him that you murdered Mitat, and gestured with both hands in front of you as if you were holding two guns. You described following Mitat for a while, and that he became suspicious, slowing his car and then coming to a stop, and then that you and Ene pulled up beside Mitat’s car, you rolled down the Ranger’s window and shot Mitat dead. [9]
[9]Ibid 1726-1727.

In the aftermath of the murder, you, Ene, moved out of your house in Hampton Park and commenced to live at a co-offender’s house. This was indicative of the closeness of the relationship you still had with the co-offender following the murder.

A few days after the murder, you, Ene, had a conversation with Witness I, in which you complained that Taumoefolau had taken too long to arrive and had not turned up. You said that you had made the hasty decision to get someone else to be the driver of the secondary getaway car, because Mr Rasimi had been located and you and Kakato could not wait for Taumoefolau.

You, Taumoefolau, separately told Witness I that you were receiving your ‘COMOS’ patch for sourcing the car used in the murder. You, Ene, complained to Witness I that it was unfair that Taumoefolau received a patch when the driver of the second getaway car did not.

On 16 March 2019, you all attended a so-called ‘Patch Party’, where you each received a ‘COMOS’ patch,[10] a perverse accolade indicative of your having undertaken an act of significance for the club.
[10]The evidence in the trial was that the ‘uniform’ of the Comanchero was a vest with patches on it, and that patches could be awarded to club members for service to the club. See Trial transcript (n 3) 159-179 and 193-294.

You, Kakato, also later had a conversation with another former Comanchero, Witness B, when the two of you were in custody, in which you told Witness B that you shot Mitat Rasimi and that Ene was the driver.

Ene, you later paid Witness A $5,000.00 for his involvement.

Your respective roles in the murder
Ene

On your behalf, Ene, it was submitted by Mr Marsh, who appeared for you with Mr McCulloch, that I should sentence you on the basis of the most benign of the alternative scenarios of your role set out in the defence’s written outline, and advanced in oral submissions before me. Under this scenario, your direct involvement in the murder and its immediate lead-up would be limited to retrieving the Ranger from Melton and parking it near your house with the knowledge that it would be used in the murder. Mr Marsh submitted that the first scenario represents the facts necessary to establish the elements of murder, and that the following scenarios represent incrementally more serious forms of involvement in the murder, and that I would need to be satisfied beyond reasonable doubt of the facts implicit in them before I could act on the basis of one of the more serious scenarios.

Mr Marsh submitted that it remains a reasonable hypothesis that cannot be excluded to the criminal standard that you were neither the driver at the time of the shooting, nor encouraged its commission by urging Kakato to keep shooting.

In respect of the timing of your involvement in a plan which you knew to be to commit murder, Mr Marsh submitted, in light of the inconsistent evidence between Witnesses A and B, that I should conclude that the plan, in your eyes, did not crystalise as a plan to murder until the driveway meeting.

The prosecution submitted that I can be comfortably satisfied that the facts implicit in all three of the scenarios advanced by Mr Marsh have been established on the evidence.

I do not accept the submissions by your counsel in respect of the factual basis upon which I should sentence you. I accept that for me to act upon any factual basis that goes beyond the bare requirements for the jury verdict of guilty, I would need to be satisfied beyond reasonable doubt as to the facts.

In your case, there is abundant evidence that from an early time, you were involved in the plan to seek to recover the debt considered to be owed by Witness L. I am satisfied beyond reasonable doubt that you were present when Mitat was first put forward as a target for murder, that you hosted a meeting at your house in which the plans for the murder were discussed, that you were present at the driveway meeting at which senior members of the Comanchero encouraged the murder of Mr Rasimi, that you collected the Ranger from Melton in the knowledge it would be used in the murder, that you engaged in reconnaissance that evening in the Ranger, and that you left the vehicle parked at a location close to your home so that it would be readily available to you. I am satisfied that you were present at the meeting at your home on the night of the murder, from which you and Kakato set off on your mission to murder Mr Rasimi.

In particular, I am satisfied beyond reasonable doubt, based on the entirety of the evidence, that you were the driver of the Ranger when it followed Mr Rasimi on his departure from Beletti’s, and that you were still driving the vehicle when it pulled up alongside Mr Rasimi’s car. I am satisfied that you knew that Kakato was going to shoot Mr Rasimi, intending to kill him. As to whether or not you did, as you admitted to Witness A, entreaty Kakato to ‘finish it. Empty the clip’, I need reach no firm conclusion. That would not be an important sentencing fact, in light of your substantial, long-term involvement in the plan to murder Mr Rasimi, and the proven fact that you were one of two men in the Ranger when the plan was put into effect.

I am satisfied that following the murder, you took steps, including destroying your co-offender’s Ciphr, to avoid apprehension. I am satisfied that you made admissions as to your involvement as the driver. I am satisfied that you received a COMOS patch as reward for your involvement in the murder.

Kakato

No submission was advanced on your behalf, Kakato, as to your precise involvement in the murder. Indeed, on the first day of the plea hearing, Mr Tehan KC, who appeared for you with Ms Myers, stated, ‘I don’t want to get involved in any discussion about the facts concerning this matter’.[11] Notwithstanding that, Mr Tehan later argued that I should not be satisfied that you introduced Mr Rasimi as an alternative target for murder, due to the inconsistency between the evidence of Witnesses A and I touching on the matter. The prosecution submitted that I should be satisfied on the evidence that you not only introduced the debt to the Comanchero, but also put forward Mr Rasimi as an alternative target for murder.
[11]Transcript of Plea Hearing, DPP v Richard Ene & Ors (Supreme Court of Victoria, Tinney J, 18 December 2024) 105 (P Tehan KC) (‘Plea transcript’).

Based on the entirety of the evidence, I am satisfied beyond reasonable doubt that you were involved in many aspects of the lead-up to and the carrying out of the murder, as well as actions taken afterwards to attempt to conceal your involvement. Specifically, I am satisfied that you were the person who put Mr Rasimi’s name forward as a target to be murdered. You took possession of the murder weapon in accordance with your intention to be the shooter. You attended and were a driving force at the first meeting held at Ene’s house at which the murder was discussed in detail. You were present at the driveway meeting. You summoned Ene, Taumoefolau and Witness I to the meeting at Ene’s house on the night of the murder once Mr Rasimi had been located, when it was decided that the plan would be executed that night. I am satisfied beyond reasonable doubt that on the occasion of the murder, you were the shooter, and repeatedly shot at Mr Rasimi from close range, intending to bring about his death. I am satisfied that following the murder, you took steps, including disposing of the gun and a spare magazine, to avoid apprehension. I am satisfied that you made admissions as to your involvement as the shooter. I am satisfied that you received a COMOS patch as reward for your involvement in the murder.

Taumoefolau

In your case, Taumoefolau, Ms Brown, who appeared with Ms Casey on your behalf, submitted that a distinction should be drawn between your role in the murder and those of your co-offenders. Your role, it was submitted, was limited to attendance at meetings where the murder was planned, and assisting in the process by which your co-offenders came to be in possession of the Ranger for use in the murder. Ms Brown did not accept that you intended to be present at the meeting at Ene’s house on the night of the murder, and to fulfil the role of the driver of the second escape car. Ms Brown made further submissions as to the limitations on your role, including that you did not involve yourself in negotiations or discussions regarding the debt, did not play a leadership role in meetings, did not recruit co-offenders, did not collect the Ranger for use in the crime, and were not involved in the planning, surveillance and reconnaissance carried out in the 24 hours leading up to the murder. She also relied strongly upon the contention that the evidence showed you to be ‘unenthused at the idea of Mr Rasimi being killed, as opposed to being enthusiastic or encouraging of it’.[12] The key aspect of this evidence was Witness A’s account that following the driveway meeting after some senior members of the Comanchero had left the group, you, Taumoefolau stated ‘I won’t kill him’. [13]
[12]Outline of plea submissions on behalf of Mr Taumoefolau, 17 December 2024 [10].
[13]Trial transcript (n 3) 636.

Ms Brown submitted that the extent of the role you played in the agreed murder ‘is of critical importance in determining the ultimate length of the sentence that is to be imposed’[14] upon you. She argued that the sentence imposed on you relative to Ene and Kakato should reflect your lesser role in the crime.
[14]Plea transcript (n 11) 120.

The Crown, in its written and oral submissions, maintained that your role in these events was far more extensive than asserted by your counsel. Mr Bourke KC, who appeared with Ms Karamicov and Mr Pathmaraj, relied upon your presence at and active involvement in various relevant meetings concerning the debt recovery, and your presence at the first meeting at Ene’s house and the driveway meeting. He submitted that the apparent reluctance you expressed at the driveway meeting is not mitigatory, because following that meeting, you continued to be fully involved in the agreement to murder, as evidenced by your provision, the very next day, of the vehicle you knew was to be used in the crime. He submitted that you were summoned to the meeting at Ene’s house on the night of the murder, and did intend to be present and involved as the driver of the second escape vehicle, as indicated by the expectation of the others, and your subsequent statement to Witness I.

Mr Bourke submitted that at all relevant times, you were, and remained, a party to the agreement to murder Mr Rasimi, whom you knew to be a complete innocent. You were involved in the plan for some weeks, with ample time to reflect and desist. You played a pivotal role in the execution of the plan by obtaining the Ranger. After the execution of the plan, you showed your continuing loyalty to your co-offenders and the Comanchero, and were rewarded for you involvement with the awarding of the COMOS patch.

I do not accept the proposition that your involvement in the murder was as limited as submitted by Ms Brown. For all of the reasons advanced by the prosecution, and borne out by the evidence, I am satisfied that you were a committed, active and important contributor to the development and implementation of the plan to murder Mr Rasimi. The murder of Mr Rasimi was very much a team effort, and you were an important member of the team. As Mr Bourke submitted:

Not everyone can be the shooter. Not everyone can be the driver of the kill car. But complicity is about people getting together, making an agreement with each other, undertaking different steps than each other to ensure the agreement is carried out.[15]
[15]Plea transcript (n 11) 255.

Personal background and criminal history
Ene

You, Ene, were born in Auckland, New Zealand, to parents of Samoan heritage. You are now aged 30, and were 24 at the time of your offending. You remain a New Zealand citizen. Your mother works as a chef in an aged care home, and your father works in security. You are the middle of three children, with an older brother and younger sister. After completing the New Zealand equivalent of Year 11, you received a rugby league scholarship to Keebra Park High School on the Gold Coast in Queensland. You completed Year 12 at that school while living in a homestay in Ashmore.

You received a contract to play for the Wests Tigers under 20s team, but at the age of 19, suffered a serious knee injury, disrupting your promising career. You later received a contract to train with the South Sydney Rabbitohs, but ultimately, your playing career ended without you having played any senior games.

In 2015, you moved to Melbourne where your brother Manuele was already residing. You lived with him for most of the period up to your incarceration. You spent two years working in furniture removals. Your last employment was delivering windows and doors for Bradmans in 2019.

You began associating with the Comanchero in 2018 and became a patched member the same year. While you were still a Nominee of the club you stole a motor vehicle which was subsequently used in a shooting by a Comanchero member. You received a fine at Dandenong Magistrates’ Court on 11 December 2018 for this conviction. Mr Marsh characterised this offence of theft as being an example of a prior criminal act which was carried out by you in furtherance of club business. At the time of the conviction for theft, your driver licence was cancelled, and you were disqualified from obtaining a licence for 6 months, meaning that you were a disqualified driver at the time you drove the Ranger in connection with the murder.

At the time of the murder, you were still relatively junior within the club, though you held the position of ‘Road Captain’.

Kakato

You, Kakato, were born on 9 September 1992, and are now aged 32 years. At the time of the murder of Mr Rasimi, you were 26. You were born and raised in Ōtara, Auckland, New Zealand, the youngest of three children to parents of Tongan heritage. Your parents still reside in Auckland, in the family home. Your father Toala is retired, but previously worked as a steel fabricator. Your mother Toalila works in a warehouse. Your brother lives in Melbourne and your sister in New Zealand. You are from a close-knit family, as demonstrated, in part, by your parents’ attendance at the first day of the plea hearing, to support you. None of your immediate family members have any criminal convictions. You were raised in the Wesleyan Methodist religion. Your upbringing was a strict but supporting and loving one. You grew up alongside your first cousins in Ōtara, and later told a psychologist, whose assessment of you I will shortly turn to, that you recalled gang violence, as well as family violence within your extended family. Due to the work commitments of your parents, you were brought up largely by your maternal great uncle and aunt who lived nearby your family home. You attended a local primary school, before completing your secondary schooling as a boarder at Wesleyan College in Auckland. You were bullied throughout your primary and secondary schooling, and exhibited some behavioural issues. You were exposed to gang culture during your childhood in Ōtara, being involved with a collection of youths whose main activity involved physical altercations with other groups. Young people acquiring facial tattoos was a normal part of this environment, and you adopted tattoos at an early stage in order to appear tougher. During your secondary school years, you had two relationships with girls which resulted in the birth of children. The relationships did not continue, and you have had no contact with the children. You dropped out of school at the age of 17 before completing your final year, but were awarded your Higher School Certificate nonetheless.

Throughout your school years, you were a talented rugby union player, playing for school and club teams. In your last two years of secondary school, you played in the Northern Region team, and for one year with the New Zealand Under 17s National Team. Shortly after leaving school, you were offered a contract to play professionally with a team in Christchurch, but you did not take up the offer, feeling the need to stay in Auckland and support your then partner and unborn child.

After leaving school, you started working in a factory owned by the company for whom your mother worked. You moved back to live with your parents for a time, before leaving home and living independently. Your next employment was at a steel factory, where you worked for 12 months before relocating to Melbourne and commencing a similar role in Braeside in Melbourne. You lived in Braeside with your brother and his wife, before moving to Dandenong North with your then partner, Dolores Vujinovic, whom you had met when you were 21. Ms Vujinovic became pregnant with twins, but sadly miscarried, and did not want to have any more children. She had a two year old daughter from a previous relationship, however, and you raised that child as your own. You lived in Dandenong North with Ms Vujinovic and her daughter until you separated in 2018. You remained friends with her, and have maintained contact with her daughter.

You were in regular employment throughout your time in Australia up until your arrest. You obtained truck and security licences fairly early in your time here, and worked full-time for Cleanaway driving a garbage truck for three years. You then worked as a truck driver for Crown Posture Bedding. Over the years you also worked casually as a security guard at various locations.

You had few social connections in Australia outside of your then-partner, brother and his wife. When you moved to Dandenong North, you started attending Nitro Gym Hallam, and through your attendance there and working security jobs, met several members of the Comanchero. The friendships you formed grew stronger and you gravitated towards the club particularly at the time Ms Vujinovic miscarried. You were a hang-around for several years from 2014, before becoming a Nominee in 2016, and a patched member in 2017.

In 2018, you commenced your relationship with your current partner Maria, whom you met through the Tongan community. She has no criminal convictions, and remains supportive of you. You also retain the support of your siblings, parents and close friends. A bundle of character reference from family members and friends was tendered on your behalf. The authors all speak very positively about your past character and personality. You are described as a loving, caring, compassionate and hard-working individual, from a close, loving and supportive family background.

You have no criminal history in Australia or New Zealand.

However, you were remanded in custody between 27 March and 5 June 2019 for an offence for which you were ultimately acquitted, and earlier on bail for that same offence at the time of the murder.

At the time of the murder, you were the Sergeant-at-Arms of the Comanchero.

Taumoefolau

In your case, Taumoefolau, Ms Brown relied upon the summary of your personal circumstances set out in the reports of Carla Ferrari, Forensic Psychologist, dated 26 June 2022 and 13 December 2024, which were tendered during the plea hearing.

You are now 34 years old, having been born in Australia on 1 June 1990 to Tongan parents. You were 28 at the time of your offending. You are the youngest of five children. Your father was a music teacher and Polynesian Liaison Officer and your mother a nurse. You were brought up in northern Victoria. Your parents placed great emphasis on your education, and you describe your father as a strict parent, who was verbally and physically aggressive towards you. You felt unable to live up to your father’s high expectations of you. Notwithstanding these matters, you describe a good upbringing. You maintain regular contact with your family. You suffered from attention and behavioural problems at school. You were suspended from school a number of times for fighting, and attended anger management classes in secondary school. You left school at the age of 16 when your then girlfriend, now wife, Emelita, became pregnant. You and Emelita married when you were both 18. You have four children between the ages of about 12 and 17. You worked in the Robinvale area operating heavy diesel machinery on farms, pruning and harvesting, until you relocated to Melbourne at the age of 21, where you worked as a butcher and then in cold storage for six years. When you were 27, you were terminated from your employment after an altercation in which you assaulted a work colleague. At about this time, a cousin to whom you were close died, following kidney failure. Your mental state deteriorated and you self-medicated with alcohol and substances. You had been an infrequent user of cocaine since the age of 18, but this escalated substantially in the aftermath of your cousin’s death. Your heavy cocaine use and increased alcohol consumption continued in the time leading up to your incarceration. You describe yourself as having ‘gone off the rails’. You worked in cold storage for another company for 18 months, and were returning to your usual functioning, but your mental state had contributed to marital conflict. You were incarcerated in 2017-2018 for family violence.

During that period, you began to associate with other offenders who were members of the Comanchero. You soon became affiliated with the club, and later became the Sergeant-at-Arms after the remand of Kakato.

You report a close relationship with your children which you have sought to maintain throughout your incarceration. That has been made all the more difficult by some of the restrictions on custodial arrangements, especially during the COVID-19 period. Your awareness of the financial and practical challenges that your incarceration has created for your wife and children and the way that knowledge affects you is a matter relied upon on your behalf. You fear the impact your absence during the formative years of your children’s lives will have on them as they grow older.

Your criminal history is not substantial, but includes a suspended sentence for intentionally causing injury in 2009 and an aggregate term of 10 months’ imprisonment for intentionally causing injury and other offences in 2018. The victim of your 2018 assault was your wife.

There was also evidence adduced by your counsel during the trial that you were involved in an incident in 2018, referred to as ‘spaghetti legs’, in which you broke another person’s legs, apparently on club business.[16]
[16]Trial transcript (n 3) 1221.

You are currently awaiting trial on charges of trafficking a large commercial quantity of a drug of dependence (2 charges). For sentencing purposes, I disregard this fact.

Medical and psychological material
Kakato

A good deal of time during the plea hearing was devoted to the heart condition from which you suffer. On 26 April 2019, when you were in custody for an unrelated matter for which the charges were ultimately dropped, you suffered a heart episode while in the yard at Port Phillip Prison. You were admitted into the cardiology unit at St Vincent’s Hospital suffering from atrial fibrillation (‘AF’) and breathlessness, against a background of a history of palpitations, shortness of breath and chest tightness. You remained in the hospital until your discharge on 7 May 2019. The discharge summary described the diagnosis upon your discharge as dilated cardiomyopathy, AF and heart failure. It was posited that your condition was likely related to your previous alcohol and cocaine use.

A transthoracic echocardiogram (‘TTE’) conducted on 29 April 2019 showed findings including a severely dilated left ventricle with severe global systolic dysfunction, moderately dilated right ventricle with severe systolic dysfunction, and moderate biatrial enlargement.

You responded well to treatment and medication in hospital. One aspect of the treatment you received was cardioversion, a procedure in which an electric shock was delivered to your heart in order to restore sinus rhythm. Normal rhythm was restored, and as far as the evidence suggests, there has been no return to AF. Upon your release from prison, you attended a specialist cardiologist in Dandenong, Dr Chrisopher Webb, on 16 August 2019. A TTE conducted on the same date revealed a mildly dilated left ventricle, normal right ventricle, and generally normal findings. There was no finding of valve disease.

That was the last TTE carried out upon you by the time of the plea hearing, which was an unsatisfactory aspect of your treatment within the prison system. A repeat TTE was ordered on several occasions, but not carried out for various reasons.

A report from the cardiology clinic at St Vincent’s Hospital (‘the clinic’) dated 20 August 2020 noted the improvement in your heart condition by the time of the TTE on 16 August 2019. Note was also made of the substantial weight reduction you had been able to achieve due to a combination of diet and increased exercise in prison. By that time, you had lost 40 kilograms, your blood pressure had improved, and you were complaining of no symptoms of heart failure.

At the time of a review at the clinic on 4 April 2023 by Associate Professor David Prior, you indicated intermittent symptoms, but were considered to be stable without major heart failure symptoms. You had lost further weight. A further TTE was requested, but not carried out.

When seen by Dr Prior again in the clinic on 22 August 2023, no heart failure symptoms were evident, but the need for a further TTE was expressed.

On 16 April 2024, you had a telehealth appointment with Dr Stephanie Rowe at the clinic. Still you had not received a further TTE. Dr Rowe indicated that clinically, you appeared to be doing extremely well. You reported no symptoms or concerns, and had a much reduced blood pressure.

Dr Angeline Leet, cardiologist and head of the heart failure unit at St Vincent’s Hospital, gave evidence during the plea hearing. She confirmed your current diagnosis of cardiomyopathy in the context of an episode of AF. She emphasised the desirability of a TTE being conducted, but indicated that her management of your condition is based primarily on symptomology. She indicated that your symptomology has been very stable, but the TTE would be a routine step nonetheless. In cross-examination, Dr Leet indicated that you have apparently been compliant with medication, and have lost 50 kg in weight. She indicated that any risk to your health in future is reduced by your adherence to medication and your lifestyle changes. Such measures would generally be effective in treating your condition. If you maintain your medication and adhere to positive lifestyle changes, your prognosis is good.

I agreed to the request of Mr Tehan, which was not opposed by the Crown, that I delay sentencing you until a further TTE had been carried out. In due course, that occurred on 5 May 2025. The TTE demonstrated a mildly dilated left ventricle with normalisation of systolic function. The right ventricle was mildly dilated with normal systolic function. Valve appearance and function were normal. A report from Dr Leet dated 6 May 2025 was provided to the Court. Dr Leet indicated that you remain NYHA Functional Class 1,[17] meaning that you have no functional limitations, and are able to perform normal activities without experiencing discomfort or limitations. Dr Leet indicated that you apparently jog daily in the exercise yard for ten minutes, and have a daily weights session for 20 to 30 minutes. She indicated that she is pleased with your cardiac progress and the normalisation of your cardiac function. You have responded well to the modulation of your heart failure medications and remain in sinus rhythm. She expressed the hope that the next step will be the normalisation of you left and right ventricle sizes. She indicated that you have a good prognosis if the normalisation of your cardiac function continues to progress.
[17]New York Heart Association functional classification system.

You were assessed by a psychologist, Gina Cidoni, in the lead-up to the plea hearing, and the report of Ms Cidoni dated 16 December 2024 was tendered on your behalf.[18] Following her clinical evaluation of you, supported by the results of psychological testing she carried out, Ms Cidoni opined that you meet the DSM-5[19] criteria for major depressive disorder (‘MDD’), generalised anxiety disorder (‘GAD’) and post-traumatic stress disorder (‘PTSD’). Ms Cidoni indicated that in her view, your prison experience is ‘particularly burdensome’[20] due to a combination of your personal history, mental health conditions, and the restrictive prison environment. The isolation imposed upon you by the restrictive conditions in which you have been held ‘has likely exacerbated [your] underlying mental health conditions’.[21] Your PTSD is particularly affected by the prison environment, due to its mirroring of aspects of your violent upbringing, and providing constant triggers to unwelcome memories.
[18]Report of Gina Cidoni, 16 November 2024 (‘Cidoni Report’). The report was tendered as Exhibit LK4 on the plea.
[19]Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition.
[20]Cidoni Report (n 18) [80].
[21]Ibid.

Ms Cidoni’s psychological testing of you pointed to some strengths you demonstrated in cognitive functioning, but also some notable deficits. In addition, you had given to her a history of a number of episodes of concussion in your past, most of them connected with your rugby career. As a result, she considered the possibility you may have an acquired brain injury (‘ABI’). As a result of this, your legal representatives arranged for you to be assessed by a clinical neuropsychologist, Dr Laura Anderson. Two reports from Dr Anderson were tendered during the plea hearing. In short, you were found to be of average intelligence, with a broadly intact cognitive profile. You demonstrated strengths in some areas, and deficits in others. Dr Anderson expressed the opinion that your cognitive profile is unlikely to be indicative of any significant or severe underlying neurological damage resulting from previous head knocks you sustained or any other cause. She did observe some possible features of Attention Deficit Hyperactivity Disorder (‘ADHD’). She considered it unlikely that your cognitive functioning had any bearing on your involvement in the offending in this case, or that it would negatively impact your capacity to cope with incarceration.

In his initial submissions to me on 19 March 2025, Mr Tehan did not seek to rely on any of the limbs in R v Verdins & Ors (‘Verdins’)[22] in mitigation of sentence. He specifically disavowed any reliance upon limbs 5 and 6. By the next day, however, Mr Tehan had changed this position. He now sought to rely on each of those limbs, based upon particular paragraphs from the report of Ms Cidoni.[23] He submitted that the application of the principles in Verdins would be capable of having a significant impact upon the sentence I should impose.

Taumoefolau

[22][2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).

[23]Cidoni Report (n 18) [41], [70]-[72], [74] and [80]. In Supplementary Submissions on Sentence filed by counsel for Kakato on 7 April 2025, some sensitive aspects of Mr Kakato’s history were addressed. The court was asked to consider these aspects without addressing them in open court. I have acceded to that request, and considered the referenced paragraphs in my assessment of the application of Verdins principles.

Two reports from Carla Ferrari, Forensic Psychologist, were tendered during the plea, and I have had regard to their contents. Psychometric testing carried out upon you indicated symptoms of depression, anxiety, and ADHD. Ms Ferrari considered that you met the diagnostic criteria for Major Depressive Disorder with anxious stress (‘MDD’), Stimulant Use Disorder – cocaine type, in sustained remission, Alcohol Use Disorder in sustained remission, and ADHD. There was no evidence of any entrenched personality disorder, although you did present with a number of personality vulnerabilities that she considered had likely developed as a result of traumatic experiences in your life.

Ms Ferrari opined that a prison sentence would likely weigh more heavily on you than on someone without your mental conditions. She also indicated her view that there is a risk that your mental health symptoms will worsen in the custodial setting, and that this has already occurred.[24] Ms Brown relied upon the opinions of Ms Ferrari as enlivening the fifth and sixth limbs of Verdins. I note that Ms Brown disavowed reliance on any of the other limbs of Verdins notwithstanding Ms Ferrari’s contention that the presence of PTSD and ADHD symptoms would have mentally impaired you at the time of the offending such that your moral culpability would be reduced.[25] Ms Brown conceded that were I to find that limbs 5 and 6 of Verdins were enlivened, it would make a relatively minor difference to the total sentence to be imposed upon you because of the other sentencing factors which need to be given weight.
[24]Report of Carla Ferrari, 13 December 2024 [149]-[150] (‘Ferrari Report’).
[25]Ferrari Report (n 24) [155].

The prosecution submitted, in your case, Kakato, that the material relied upon by your counsel was insufficient to enliven limb 6 of Verdins. Mr Bourke did not argue that limb 5 is not enlivened, but submitted that this would not play any significant role in mitigating your sentence. In your case, Taumoefolau, Mr Bourke did not dispute the operation of the two limbs relied upon by your counsel, but, again, submitted that these matters would have a minor impact on sentence.[26]

Analysis on Verdins issues

[26]Trial transcript (n 3) 263.

I sentence each of you, Kakato and Taumoefolau, on the basis that the fifth and sixth limbs of Verdins are enlivened in your cases. However, any impact upon sentence as a result of that fact would be very modest.

Conditions in custody and delay
Ene

You, Ene, have been in custody since November 2019, and as a result, were in the prison system for the entirety of the duration of the COVID-19 pandemic and suffered the strains and challenges it posed for the custodial system. Aside from the COVID issues, you have been held in very onerous conditions of remand, with the vast majority of your pre-trial detention spent in maximum security at Barwon Prison. I was informed by your counsel that from September 2020 to the date of the plea hearing on 18 December 2024, you were subject to 23 hour lockdown. By the time of the plea, you had been moved to Port Phillip Prison, but were still subject to 23 hour lockdown. A future move into the general prison population had been foreshadowed.

There was substantial delay in your matter reaching trial, due to the expansion of the prosecution case, the pandemic, and the resignation of the previous trial judge in this matter. Mr Marsh relied on the proposition that this matter has been hanging over your head for a long time, during which, as a remand prisoner rather than a sentenced prisoner, you had limited access to education and other programs. He submitted that the delay in your case was a significant matter. He also submitted that your time on remand of approximately five years, spent largely in difficult circumstances, would represent a significant proportion of your likely minimum sentence, and should be taken into account by me in arriving at the appropriate sentence.

Kakato

Mr Tehan relied on what he described as the inordinate delay in your case being finalised, which was not attributable in any way to your conduct. Your committal hearing proceeded in 2021, but the accused other than Ene were subsequently charged and your matter was delayed until it could be joined with the other accused. Then there were several adjournments of the trial before it finally proceeded. It has now been over five years since the offending, and well over four years since your arrest. In that period, you had this matter hanging over your head, causing stress. Mr Tehan submitted that during that time, you have experienced significant hardship in custody. In support of this contention, he pointed to the heart condition from which you suffer and will continue to suffer, the fact that you spent the entirety of the COVID-19 pandemic in custody, enduring the difficult conditions brought about by that, and the restrictive conditions under which you were housed for most of the duration of your custody to date, involving your being locked in your cell for about 23 hours per day, with restricted visits, and no access to education or work. It was submitted that none of this was due to misbehaviour by you. Mr Tehan acknowledged that you were relocated into a mainstream unit at Port Phillip Prison shortly prior to the trial. Your custodial conditions improved substantially, including because you were allowed out of your cell between 8.30am – 7.30pm. Due to the impending closure of Port Phillip Prison, your future placement is uncertain.

Taumoefolau

Ms Brown placed great reliance on your behalf, Taumoefolau, upon the difficult conditions in which you had spent your time in custody up to the time of the plea hearing on 18 December 2024. Between 10 September 2021 and the time of the plea hearing, you had spent 488 days in what could be described as solitary confinement. Ms Brown submitted that this had occurred for reasons not explained to you, although I note that in the report of Carla Ferrari dated 13 December 2024, it seems that you indicated to her that your initially being in solitary confinement followed allegations of your being in possession of contraband, and a subsequent decision not to return you to the mainstream population was in response to further allegations. In each case, the allegations were dismissed. During that time, you were held in a cell with a small window with a mesh covering, and permitted out of the cell, on your own, for no more than two hours per day, during which you were permitted in a small caged runout area with a concrete floor. You had no access to the library. Ms Brown, in criticising this treatment of you, pointed out that you are a person, not an animal. She relied upon the decision of the Court of Appeal in Yat v The King[27] in support of the contention that the conditions under which your sentence of imprisonment has been and will be served should be taken into account in mitigation. She tendered an article which discussed the harmful effects of solitary confinement.[28]
[27][2024] VSCA 93; Plea transcript (n 11) 111.
[28]Tamara Walsh and Helen Blaber, ‘Solitary Confinement and Prisoners’ Human Rights’ (2023) Monash University Law Review 49(1) 232.

In sentencing each of you, I have had regard to the delays experienced by each of you in having this matter concluded. None of the delays were your fault. I have also had regard to the onerous conditions in which you have each been held, and may continue to be held in the future. A number of letters from the correctional authorities were placed before the Court during the plea hearing, and of course, I have had regard to these. In your cases, Kakato and Taumoefolau, there is no indication that your difficult conditions of remand have been related to your conduct. I have read and had regard to the article concerning solitary confinement tendered by Ms Brown. As I acknowledged during the plea hearing, the conditions in which people are held in prison is a matter to be determined by the appropriate authorities. It can be expected that the authorities will make appropriate decisions, based on the needs of individual prisoners, and the need to ensure safe and proper management of prisons for all prisoners and staff. Each one of you poses management challenges. It is to be hoped, however, that each one of you will be permitted to serve your sentence in the least restrictive and onerous conditions possible in the circumstances.

Risk of deportation

You, Ene and Kakato, are not Australian citizens. It was submitted on your behalf that upon the completion of your sentences, you will likely be deported to New Zealand. Mr Tehan submitted that this prospect should be taken into account by the Court, as you, Kakato, have lost the opportunity to continue your life in Australia, and this will increase the burden of a custodial sentence upon you to a degree.

The prospect that an offender may be deported following service of a sentence is relevant to sentence if it will make the burden of imprisonment more onerous or may result in the offender losing the opportunity to settle permanently in Australia. Whether the prospect of deportation is mitigatory depends on the circumstances of the case, and a court should not consider the prospect as mitigatory unless it will actually be a hardship for the offender. In your cases, Ene and Kakato, whilst it is true that for some years you have sought to make your lives in Australia, and you have strong connections here, the fact is that you still have very strong links with New Zealand, and I do not think the prospect of your deportation to that country will add much to the burden of imprisonment. As much was conceded by Mr Marsh on your behalf, Ene, during the plea hearing.[29] In addition, the prospect of deportation will be of less significance in cases of serious offending such as yours.[30] Nonetheless, I do have regard to the prospect that you may be deported at the end of your sentences. It is not, however, an important consideration in the case of either of you.
[29]Plea transcript (n 11) 82.
[30]See Fichtner v The Queen [2019] VSCA 297 [96] (Maxwell P and Kaye JA).

Victim impact

Mitat Rasimi was 51 years old when he was murdered. He had two brothers, one older and one younger. He was married, and had four children. At the time of his death, the children were aged between 3 and 18 years old. Mr Rasimi lived at home in Dandenong with his wife and children. As underlined in the Crown’s Sentencing Submissions on Plea, Mr Rasimi’s wife and four children were home on the night he was murdered in his street.

No victim impacts statements were filed in this case. In view of the circumstances of this crime, and the identities and connections of those responsible, this is not surprising.

That does not mean that I should not have regard to the effect of your crime on its many victims. The Sentencing Act 1991 (‘the Act’) requires me, in sentencing you, to have regard to the impact of your offence upon any victim of the offence, the personal circumstances of any victim of the offence, and any injury, loss or damage resulting directly from the offence.[31] As was stated by the Court of Criminal Appeal in R v Miller:[32]

Even in the absence of a victim impact statement, a sentencing judge is entitled to draw reasonable inferences from the evidence before him of any injury, loss or damage suffered by victims and their immediate families.[33]

[31]Section 5(2)(daa), (da) and (db).

[32][1995] 2 VR 348 (Southwell, Ormiston and McDonald JJ).

[33]Ibid 354.

Your crime ended the life of a man who was only 51. You took him away from his wife, and his four young children. It is inevitable that the loss of Mr Rasimi had a devastating effect on his wife and children, from which they will never recover. The grievous loss suffered by the brothers of Mr Rasimi should also be remembered.

I have regard, in sentencing all of you, to the terrible consequences of your crime upon the loved ones and friends of Mitat Rasimi.

Before leaving the matter of the impact of the murder of Mr Rasimi upon his family and friends, I note that in some reporting about the crime, Mr Rasimi has been described in very unflattering terms by media outlets. For example, as recently as 16 May 2025, he was labelled by the Herald Sun as an ‘organised crime figure’. This type of reporting is gratuitous and unfortunate, and tends to obscure the important and undeniable fact that Mr Rasimi was an entirely undeserving and innocent victim, a husband, father and friend gunned down in the street for no better reason than because he was viewed as being an appropriate vehicle for the sending of a shocking and vicious message by a group of heartless and cowardly men.

Nature and gravity of offending and moral culpability and degree of responsibility
Ene

It was admitted on your behalf that this murder falls into ‘an extremely grave category of murder’,[34] although Mr Marsh did not concede that it falls into the ‘worst category’. Mr Marsh conceded the high objective gravity of your offending based upon the high degree of sophistication and pre-planning, the selection of an innocent victim, and the use of an illegal firearm. As against those matters, however, Mr Marsh relied upon the contention that the general public was not exposed to the risk of harm, in contrast with the circumstances in the Love Machine case,[35] the relatively limited role he said you played in the pre-planning, and the absence in this murder of some of the factors of aggravation sometimes present including prolonged violence, and mutilation or disposal of the body.
[34]Outline of plea submissions on behalf of Mr Ene, 17 December 2024 [33] (‘Ene plea submissions’).
[35]DPP v Elliott & Fares [2022] VSC 554 (Tinney J); Fares v The King [2024] VSCA 108 (Orr, Kaye and T Forrest JJA) (‘Fares’).

Mr Marsh contended that the seriousness of your offending should be moderated to an extent by the fact that whilst the crime was a meticulously planned one with a degree of sophistication, you were not involved on a strategic level with the dispute behind the crime, and simply did as you were told.

Kakato

In the written outline filed on your behalf, it was submitted, as going to the nature and gravity of your offending and degree of moral culpability, that the shooting, while planned, was not prolonged, and that you did not issue any order or direction for Mr Rasimi to be killed. It was acknowledged that the fact that you were on bail at the time of the offending is a relevant matter.[36] Before me, Mr Tehan accepted that the objective gravity of your offending is high. He questioned the utility of discussion about whether your offending fits within the ‘worst case’ category, before seemingly conceding that it may be arguable either way, in view of the objective gravity of the crime. Specifically, Mr Tehan accepted that the objective features of your crime place it towards the upper end of the scale of seriousness. However, he emphasised that ‘the other side of the equation’ is your personal circumstances, and the fact that you are not beyond redemption or reformation.

Taumoefolau

[36]See above nn 65.

Ms Brown conceded that this was a murder of a very high order of seriousness, constituted by the brazen killing of an innocent person which was planned over time. The selection of Mr Rasimi as a target showed a callous indifference to the sanctity of human life. The offending does not fall into the worst category however, she submitted, as it did not involve a breach of trust or opening fire into a crowd of people.

Analysis

The various points of distinction between your crime and some other instances of the crime of murder relied on by your respective counsel as reducing somewhat the seriousness of your murder of Mr Rasimi were entirely unconvincing.

I do not accept Mr Marsh’s submission that the crime did not expose the general public to the risk of harm. At least six shots were fired from one vehicle, likely to have been in motion to some degree, into another vehicle, at night, in a public street in a built up area. The risk of a pedestrian or occupant of a house being struck by a stray bullet was far from a remote one.

As for the various potential aggravating features absent from your crime, as outlined by your respective counsel, it is obvious that the seriousness of a crime should be judged by the aggravating features it possesses rather than by those which are absent.

On any view, as correctly conceded on behalf of all three of you, your crime was one of a very high order of seriousness.

I have said enough already to clearly illustrate the great seriousness of your offending. You were all willing and important participants in the murder of an entirely innocent and blameless man. The motivation behind the murder was the most malevolent one of reinforcing and enhancing the reputation of the criminal organisation of which you were members. That reputation was essential in the future successful pursuit of the criminal business operations of the Comanchero. The plan to carry out violence in connection with the debt-recovery activities of the club changed with the changing landscape of circumstances, morphing from a threat to injure Witness L or Witness F, to a plan to kill Mitat Rasimi, apparently to ensure that some form of retribution could be successfully administered, and to send the desired message to Witness L and the local community. As pointed out by the Crown, the plan to murder Mitat Rasimi had solidified by mid-February 2019, and in the period between then and the murder of Mr Rasimi, there was ample opportunity and time for the three of you to consider the enormity of your intended actions, and withdraw. Rather than withdraw, and notwithstanding the reluctance you, Taumoefolau expressed after the driveway meeting, all three of you remained steadfast in your willingness to carry out the plan, in full knowledge of the fact that its intended victim was entirely innocent.

This was a carefully thought out plan to kill, involving a degree of sophistication. Encrypted devices were used in the planning phase. An illegal firearm was sourced and used. Surveillance was conducted. Multiple vehicles were used in an effort to evade detection. The plan was carried out, in practical terms, by you, Ene and Kakato, with the involvement and necessary assistance of you, Taumoefolau. The crime was carried out with clinical efficiency, in a suburban street, at night, at close range, by the repeated discharge of a firearm into the body of Mr Rasimi. The message conveyed by this outrageous crime was, as you all intended, brutally violent and chilling.

Once the crime had been carried out, all necessary steps were taken by you, along with your co-offender, for you all to avoid responsibility. Once the dust had settled, you willingly accepted your reward for your efforts, constituted by the awarding of the COMOS patch, a high honour in the Comanchero organisation.

The prosecution described the murder of Mr Rasimi as brutal, barbaric and callous. That is a reasonable description. It was a premeditated, heartless crime which would shock any fair-minded member of the community.

The prosecution submitted that your crime is an example of the crime of murder falling within the ‘worst category’.[37]
[37]R v Kilic [2016] HCA 48 [18] (‘Kilic’).

As to whether your murder of Mitat Rasimi can be said to fall within the worst category of such offending, I would question whether there is actually much utility in seeking to divide up crimes of murder into a number of well-defined categories. As was said by the Court of Criminal Appeal in R v Dumas (‘Dumas’)[38] as long ago as 1988, at a time not long after the removal of life imprisonment as the mandatory sentence for murder:

The crime of murder is a crime of the utmost gravity. In our opinion, it does not admit of categorising each offence into degrees of gravity. While the new legislation will permit courts to sentence persons convicted of murder to terms of years and even to fix relatively low minimum terms in appropriate cases having regard to various facts which may be taken into account in mitigation of penalty, nevertheless, the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.[39]

[38][1988] VR 65 (Young CJ, Murray and McGarvie JJ).

[39]Ibid 71.

In The Queen v Debs & Roberts,[40] Vincent JA, with whose judgment the other members of the Court agreed, reiterated, citing Dumas in support, that it is inappropriate to approach the sentencing task in a given case by reference to categories of murder. The practice of trying to determine whether a particular crime falls into any particular category or range of seriousness has also been deprecated in recent times.[41]
[40][2005] VSCA 66.
[41]DPP v Weybury (2018) 84 MVR 153 [33]-[34] (Maxwell P and Hargrave JA) and [54] (Priest JA), quoted in Lee v The Queen [2018] VSCA 343 [31]-[32] (Ferguson CJ, Priest and Beach JJA).

If there truly is a useful category which could be described as the worst category where the crime of murder is concerned, its boundaries would be difficult, if not impossible, to define or describe.

I am mindful, of course, of what was said by the High Court in R v Kilic:[42]

What is meant by an offence falling within the “worst category” of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the “worst category”, it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.
Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here - a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”. It is a practice which should be avoided.[43]

[42]Kilic (n 37).

[43]Ibid [18]-[19] (citations omitted).

The requirement, of course, is for me to take into account all of the circumstances of your crime in determining the nature and gravity of the offence, which is one of the matters to which I am required by law to have regard.[44] An appreciation of the nature and gravity of this crime is not really advanced by a decision as to which category of murder your crime may fall within. Having said that, it seems clear to me that your crime of murder, with all of its surrounding circumstances, could comfortably be considered to fall at or very close to the upper end of the spectrum of seriousness. This is no less the case simply because even worse individual cases of murder may readily be envisioned.
[44]Sentencing Act 1991 s 5(2)(c).

That conclusion, of course, would not compel a decision one way or another on the question whether a sentence of life imprisonment should be imposed upon any one of you. I will turn to that matter shortly.

As for the matter of moral culpability, it is obvious that the moral culpability of each of you for your offending should be considered to be extremely high.

Category 1 offence

Murder is a category 1 offence pursuant to s 3 of the Act. Sections 5(2G) of the Act requires the sentencing court to impose a term of imprisonment when sentencing for this crime.

Standard sentence scheme

As your crime was committed after 1 February 2018, the standard sentence scheme applies to the offence of murder of which you have been found guilty. The standard sentence for murder is 25 years.

Pursuant to s 5A(1)(b) of the Act, the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.

The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen (‘Brown’).[45] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a “standard sentence offence” must “take the standard sentence into account as one of the factors relevant to sentencing”. This requirement:
·     is to be treated as a “legislative guidepost”, having the same function as the maximum penalty;
·     does not affect the established “instinctive synthesis” approach to sentencing;
·     does not require or permit “two-stage sentencing”; and
·     does not otherwise affect the matters which the court may, or must, take into account in sentencing.[46]

[45][2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Brown’).

[46]Brown (n 45) [4].

I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for each of you on the charge of murder by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown.

Section 5B(5) statement

Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

The applicable law does not require me in complying with the requirement of s 5B(5) to ‘attribute particular mathematical values’ to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[47] It does, however, require me to ‘identify fully the facts, matters and circumstances’ which bear upon the judgment I have reached as to the appropriate sentence.[48] I have endeavoured to do that in some detail during these reasons for sentence.
[47]Muldrock v The Queen (2011) 244 CLR 120 [29].
[48]Ibid.

In arriving at the sentences I will shortly pass upon each of you, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentences I will announce.

Prohibited person possess firearm - Ene

In respect of the prohibited person possess firearm charge, Mr Marsh submitted on your behalf, Ene, that your conduct should be viewed through the same lens as the murder of which you have been found guilty. That is, that the conduct occurred in the context of and because of your membership of the Comanchero. Mr Marsh conceded that this offence should attract a term of imprisonment, but he urged me to make such term wholly concurrent with the sentence on the charge of murder. Mr Bourke did not speak against that proposition.

Parity

In sentencing each one of you, I will have regard to the sentences which I will also pass on your co-offenders, including the co-offender who is being sentenced separately, and whose name and role is presently suppressed, which consider the personal and other circumstances of the co-accused, including their respective roles in the commission of the murder.

As between the three of you, the question of parity is a difficult one to grapple with. Insofar as your relative moral culpability for your crime was concerned, Mr Bourke submitted that there was little to distinguish between the three of you, but that if there was to be any distinction, I should assess you, Kakato, as the most culpable, and you, Taumoefolau, the least.

Your moral culpability, of course, is only a part of the picture, albeit a very important part. In the case of each of you, there were differing considerations of your personal backgrounds, criminal histories, family support, medical and psychological conditions, circumstances of custody, and many other matters.

The matter of parity is not some complex mathematical formula into which the data is input and the correct answer is spat out at the end of the process. It is an aspect of equal justice, which to state it simply, requires that like be treated alike, and that differences in the overall positions of co-offenders, taking into account all of the circumstances, be reflected in sentence.

I have had regard to the principle of parity in sentencing all of you, and in sentencing your co-offender.

So far as your respective roles in the offending are concerned, whilst all of you are to be distinguished from your co-offender, whose role was more serious, there is not much to distinguish between the three of you. There is reason to consider that your involvement, Taumoefolau, was at a slightly lower level than that of Ene and Kakato, but not to the extent asserted by your counsel. Notwithstanding your expressed reluctance after the driveway meeting, which showed your appreciation of the outrageous nature of the planned crime, you continued to play your part, as you had done throughout. Not even your strong reservations had the effect of summoning within you the shred of human decency which would have had you, even at that late stage, reflecting on the shocking nature of this crime, and desisting from any further involvement. You then took further steps, the very next day, to secure the stolen Ranger for use in the crime. Up until the time of the meeting at Ene’s house just prior to the murder, it had been your intention, at least as far as your co-offenders were concerned, to play a direct role in the crime by driving the secondary getaway car. That you chose not to do so, or were unable to do so through circumstances outside your control, as you later claimed to Witness I, says little about the level of your involvement in this crime. You were an important and active contributor, and willingly received the spoils of your involvement with your acceptance of the COMOS patch.

As for your relative positions, Ene and Kakato, there is no reason to distinguish between your respective roles. You were both very much in the thick of it, and willingly undertook the vital roles of the shooter and the driver of the Ranger as it was driven to and from the scene of the murder. As for other matters personal to each of you, including the fact that in your case, Ene, you are to be sentenced for an additional charge, these are not such as to lead me to the view you should be sentenced differently.

Having reflected carefully and at length on the matter, and having had regard to all of the circumstances relevant to each of you, I have determined that you, Ene and Kakato should receive the same sentence, and that you, Taumoefolau, should receive a slightly lesser sentence.

Current sentencing practices

The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[49]
[49]R v Brown [2018] VSC 742 [111] (Champion J).

The prosecution provided to the Court a table of cases in which sentences of life imprisonment have been imposed. The cases in that table went as far back as 1989. The table included cases in which sentences had been passed under the standard sentence regime, and some passed before that scheme came into effect. An additional table showing only standard sentence scheme cases was also provided.

Mr Marsh, on your behalf, Ene, made particular mention of the Love Machine case, in which two men were convicted of a double murder outside a nightclub, in circumstances where shots had been discharged by one offender towards an area where many people, including patrons and staff, were milling around. Whilst acknowledging that there are some aspects of your crime which are, ‘on their face, far more grave’ than those in the Love Machine case,[50] he sought to distinguish your crime from that crime on the basis of what he described as ‘the sheer magnitude of the disregard for the life and wellbeing of the victims and bystanders’ in that case.
[50]Plea transcript (n 11) 93-4.

Mr Tehan, on your behalf, Kakato, supported his argument against the imposition of a life sentence upon you by referring to the sentences imposed in the case of DPP v Rider & Ong.[51] In particular, the offender in that case who ran a trial received a sentence of 35 years’ imprisonment with a minimum of 24 years 6 months. When asked by me whether he accepted that the offending in your case is even worse than that in the case of Rider & Ong, Mr Tehan was reluctant to answer, conceding, correctly in my view, ‘I don’t think you can weigh to a nicety those sorts of [things]’.[52]
[51][2023] VSC 466 (Beale J).
[52]Plea transcript (n 11) 207.

I have had regard to sentences passed in previous cases of murder as a standard sentence offence in understanding current sentencing practices. I have also had regard to sentencing principles canvassed in other cases.

I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentences I must pass on the three of you.

Important sentencing purposes

As I have already indicated, the murder of which you have all been found guilty is exceedingly grave, and at the upper end of the spectrum of seriousness. Set against the background of your membership of the Comanchero, the efforts of that organisation, with no justification at all, in seeking the recovery of a debt not even owed to it, and anger apparently felt within the organisation about the perceived affront to the reputation of the Comanchero as a result of the actions of Witness L and in rebuffing the demands of the Comanchero, the three of you along with your co-offender, embarked upon a plan to murder an innocent man, Mitat Rasimi, who was seen, as the Crown put it, as ‘a convenient, accessible and sufficient vehicle’, in your eyes, to send the desired message.[53] Yours was a truly terrible crime, carried out with shocking and brutal efficiency, following a high level of planning. Your crime showed a complete disregard for the law, a distinct lack of human decency and humanity, and a callous disregard for the sanctity of human life. Your crime was an affront to normal, decent society.
[53]Crown Sentencing Submissions on plea, 17 December 2024 [22].

In the aftermath of your crime, you took steps to evade responsibility. You willingly accepted the kudos of a grateful organisation. You showed no sign of regret or remorse for your actions. Nor have you to this day.

In acting as you did, you seemingly shared the belief that the deliberate taking of the life of an innocent person, as occurred in this case, could be justified by the perverse motivation of protecting the reputation of a criminal organisation. You also acted out of self-interest in furthering and enhancing your own individual reputations within the Comanchero. What you did in this case says something reprehensible about the character of each of you as individuals, and the Comanchero as an organisation.

To my mind, the important purposes for which sentence must be passed on you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community.

You must be punished in a way which reflects the shocking seriousness of your crime and amounts to an appropriate response to it.

The sentence must communicate in clear terms this Court’s condemnation and disapproval of your violent criminal conduct. As was said by the Court of Appeal in Fares v The King:[54]

[I]t was of primary importance that the sentence imposed by the judge constitute an unambiguous condemnation, by the Court, and as such by our society, of the total and utter disregard displayed by the applicant…for the sanctity of human life, which is the most fundamental value of our community.[55]

[54]Fares (n 35).

[55]Ibid [222].

In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out a planned killing of another person that, upon apprehension, such conduct will be met with very strong punishment.

In the case of each of you, it is clear that you must be deterred personally from any future violent actions to which you may be disposed.

As for the protection of the community, that purpose will largely be met by the imposition of the long sentence of imprisonment which is inevitable for each of you for offending of this seriousness. Notwithstanding that, the protection of the community is still an important consideration. There is no material before me to indicate that any one of you has renounced your connection with the Comanchero, or renounced your adherence to the warped beliefs of that organisation. Notwithstanding that I acknowledge you may not feel it safe to denounce the organisation given your co-existence with its members in prison, for as long as you maintain those beliefs, views and allegiances, or appear to maintain them, you will remain a danger to the community.

Counsel for each of you relied, to an extent, on the importance of rehabilitation in your respective cases. In your case, Ene, Mr Marsh submitted that the lengthy head sentence I would undoubtedly pass upon you would provide ample opportunity for a relatively youthful man such as you to reform. He submitted that a merciful non-parole period would foster your rehabilitation. As he put it, the fixing of a non-parole period ‘preserves an important spur to rehabilitation through the hope of ultimate release’.[56]
[56]Ene plea submissions (n 34) [35].

In your case, Kakato, Mr Tehan made your prospects of rehabilitation the centre-piece of his plea on your behalf, which he described at the outset as ‘a plea for redemption’.[57] Mr Tehan relied in particular upon your age, your lack of prior criminality, and your loving and supportive family. He submitted that you have reasonable prospects of rehabilitation.
[57]Plea transcript (n 11) 173.

In your case, Taumoefolau, Ms Brown relied on a number of matters which she submitted were relevant to your prospects of rehabilitation, including your age and limited criminal history, the fact you became a Comanchero only months before your offending, the continued support of your wife, children and extended family, and the efforts you have made to deter your sons from developing a belief system that supports anti-social behaviour.

This is clearly a case, in respect of all of you, in which your possible rehabilitation is not as important in the sentencing calculus as other sentencing purposes. That is not to say that I have not had proper regard to the interest the community has in your ultimate rehabilitation. I do not consider any one of you beyond redemption. That, however, will not be possible, as long as you maintain your commitment to the Comanchero and the OMCG way of thinking and looking at the world. At this time, there is no material in the case of any of you to indicate that you have renounced your commitment to the Comanchero or the lifestyle and thinking to which you were previously so committed. If that remains the case, your prospects of rehabilitation will be very poor, notwithstanding the many positive things which were able to be advanced on behalf of all of you. However, the fixing of a non-parole period is intended to allow for at least the possibility of your release into the community on parole at the expiration of your non-parole period, allowing for the prospect of your rehabilitation being advanced in that fashion, albeit, many years from now. The non-parole periods I will fix will hold out the prospect for each of you of being able to lead a meaningful and useful life in the community upon your release on parole, should that be granted to you.

Question whether term of life imprisonment open and appropriate

The position of the Crown was that the offending of each of you was so serious that only a head sentence of life imprisonment would constitute a sufficient response by the Court to your actions. It was submitted that the extreme gravity of your offending warrants the imposition of a life term.

Ene

As noted earlier, Mr Marsh conceded that your murder of Mr Rasimi ‘does fall within an extremely grave category of murder’,[58] but challenged the prosecution contention that it falls into the ‘worst category’. He distinguished your crime from the crimes committed in the Love Machine case, although he did acknowledge that in some respects, particularly the matter of pre-planning, your crime is far more grave. He submitted that whilst a head sentence of life imprisonment would arguably be open to me, in the circumstances of this case touching on the offence and personal to you, I should be slow to conclude that life would be the only appropriate sentence. He submitted that the relevant sentencing purposes could be achieved by a head sentence measured in decades, with a non-parole period also in decades. Therefore, the principle of parsimony demands that no more severe sentence should be passed.

Kakato

[58]Ene plea submissions (n 34) [33].

It was argued in the written outline filed on your behalf that a head sentence of life imprisonment is not reasonably open in your case. Before me, Mr Tehan maintained that submission, although conceding that reasonable minds might differ on whether it would be open or not. He submitted, however, that should I consider such a sentence is open, I should not impose one, for the reasons he advanced in argument, which he described as ‘compelling’.[59] These reasons included your relatively young age, your lack of criminal history, the circumstances of your background, your very strong family support, and the fact that you will need to live with your heart condition for the rest of your life, which will not only make imprisonment more burdensome for you, but will be a troubling matter for a young person such as yourself to deal with.

Taumoefolau

[59]Plea transcript (n 11) 201.

Ms Brown submitted that the Court should impose a head sentence shorter than life imprisonment. That would be appropriate, she submitted, having regard to your limited role in the crime, your limited criminal history, and the strong support of your family.

A sentence of life imprisonment has not-infrequently been described as a dreadful sentence reserved for dreadful cases. In The Queen v D.J.H.,[60] Brooking JA, with whose judgment the other members of the Court agreed, noted, ‘The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration’.[61] Having set out a passage from Dumas to which I earlier referred at [117], his Honour stated:

It seems to me, if I may say so, that on occasions sentencing judges have not given sufficient weight to the observation that the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.[62]

[60][1998] VSCA 108 (‘D.J.H.’).

[61]D.J.H. (n 60) [13].

[62]Ibid [14].

In the many months that have passed since the commencement of the plea hearing in this case, by which time the prosecution had made clear its position that each one of you should receive a head sentence of life imprisonment and it had been indicated on behalf of each of you that that proposition was challenged, I have had ample time and opportunity to reflect upon this issue. Strong submissions have been advanced on behalf of each of you in support of the contention that a head sentence in years, rather than one of life imprisonment, would meet the needs of justice in your respective cases.

I have carefully considered all of these submissions, and all of the sentencing principles which govern me. Having done so, in the end, I have been moved clearly to the conclusion, in respect of each one of you, that a sentence of life imprisonment for the crime of murder of which you have been convicted is both appropriate and necessary. In my view, your crime cannot be properly met with a sentence other than life imprisonment. I am driven, in each case, to that conclusion by a consideration of the enormity of your offending, the extremely high level of the objective gravity of your crime, your substantial subjective moral culpability, and the relevant purposes for which sentence must be passed in your case. In my view, only a head sentence of life imprisonment can adequately reflect and pay due regard to the important sentencing purposes in your respective cases.

In reaching that conclusion, I realise, in contemplating current sentencing practices, and in particular some other cases in which terrible offences of murder have not attracted sentences of life imprisonment, that not every judge may agree with my conclusion. However, I have reached a conclusion which I believe to be open to me and correct.

Non-parole period
Ene

In respect of the position should I impose a head sentence in excess of 30 years, Mr Marsh submitted that I should not consider myself to be unduly fettered by the requirement in s 11A of the Act to impose a non-parole period of 70 per cent of the head sentence, as the requirement would be to have regard to the interests of justice.

Kakato

On your behalf, Kakato, Mr Tehan urged me to not impose a crushing sentence. Any sentence I pass, he submitted, must preserve some hope in you for a useful life following the completion of your non-parole period.

Taumoefolau

Ms Brown, too, sought to have me impose a non-parole period which would avoid a crushing sentence by leaving you the hope of a meaningful life after your release from prison. She submitted that in the event that I sentenced you to a head sentence of life imprisonment, the imposition of a sentence of at least 30 years, in accordance with s 11A(4)(a) of the Act, would not sufficiently recognise the principle of parsimony. Ms Brown submitted that it would be of assistance to me in determining both the head sentence and non-parole period in your case to contrast what you actually did in this case with what was done by offenders in other cases who received less than life imprisonment, with minimum terms less than 20 years.

I have decided to fix a non-parole period for each of you. Of course, I sentence you on the basis that you may be required to serve every day for the remainder of your life in custody under the head sentence I will impose on each of you. The non-parole period, like the head sentence, must pay due regard to, and adequately reflect, the purposes for which you are to be sentenced for this crime. It is obvious, therefore, that the non-parole period must itself be very lengthy, as your counsel all acknowledged.

Indeed, upon the passing of a head sentence of life imprisonment, I am required by s 11A(4)(a) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 30 years.

The High Court in Power v The Queen,[63] explained the purpose of parole as:

to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[64]

[63](1974) 131 CLR 623 (Barwick CJ, Menzies, Stephen and Mason JJ).

[64]Ibid 629.

As Winneke P explained in R v Mulvale:[65]

The fixing of a minimum period is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.

[65](Victorian Court of Appeal, Winneke P, 20 February 1996).

Having considered all of the matters advanced by counsel on behalf of each of you, I have determined that it is in the interests of justice that non-parole periods lower than the 30 year period specified in s 11A(4)(a) be fixed in each of your cases. The non-parole periods will still be very substantial, and will have the sad effect of removing you from the community and your families for many of the best years of your lives. That is an unavoidable consequence of the extreme gravity of your crime. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in the case of each of you.

Sentence

Richard Ene, for the murder of Mitat Rasimi, you are sentenced to be imprisoned for life.

On the charge of being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for 12 months.

By operation of law, these sentences will be served concurrently.

The total effective sentence is life imprisonment.

I fix a period of 28 years during which you will not be eligible to be released on parole.

I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge of being a prohibited person in possession of a firearm, I would have imposed a sentence of 2 years’ imprisonment on that charge.

I declare a period of 1915 days up to and including yesterday, 19 May 2025, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

Laiseni Kakato, for the murder of Mitat Rasimi, you are sentenced to be imprisoned for life.

I fix a period of 28 years during which you will not be eligible to be released on parole.

I declare a period of 1911 days up to and including yesterday, 19 May 2025 as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

Christian Taumoefolau, for the murder of Mitat Rasimi, you are sentenced to be imprisoned for life.

I fix a period of 26 years during which you will not be eligible to be released on parole.

I declare a period of 936 days up to and including yesterday, 19 May 2025 as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

[2025] VSC 281

20 May 2025 (First Revision 11 July 2025) [1] [2]