Director of Public Prosecutions v Fonokalafi

[2022] VCC 1497

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-00701

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIONE FONOKALAFI

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JUDGE:	His Honour Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2022
DATE OF SENTENCE:	2 September 2022
CASE MAY BE CITED AS:	DPP v Fonokalafi
MEDIUM NEUTRAL CITATION:	[2022] VCC 1497

REASONS FOR SENTENCE
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Subject:Criminal Law Sentence

Catchwords:              Intentionally causing injury – Affray – Single punch to the head - Youth

Legislation Cited:      Sentencing Act 1991

Sentence:                  Total effective sentence of 18 months’ imprisonment in combination with a 12-month CCO.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. White	Office of Public Prosecutions
For the Accused	Mr C. Oldham	Bowler & Co

HIS HONOUR:

1Sione Fonokalafi, you have pleaded guilty before me to one charge of causing injury intentionally and one charge of affray.

2The charges arise out of the same incident.  The crime of intentionally causing injury carries a maximum penalty of 10 years' imprisonment.  The crime of affray carries a maximum penalty of five years' imprisonment.

3You have admitted one previous occasion of findings of guilt in relation to a number of different offences including a previous finding of guilt for the charge of recklessly causing injury.

Circumstances of Offending

4The circumstances of your offending are set out in some detail in Exhibit A, which is the summary of prosecution opening for plea.  Exhibit A forms part of these reasons for sentence and I do not propose to recite the detail of your offending again in addition to what is in that document.  Suffice to say that around 12.54 am on 20 March, you became involved in a confrontation between associates of yours and the victim in this matter.

5You had been out drinking and on your assessment, amongst you and your friends, of which there were several, your recollection, perhaps inaccurate was that that you had shared 20 plus jugs of beer, between all of you.  There was a dispute or perceived dispute at least between some of your group and your unfortunate victim, Mr Stock.

6As I have said ultimately, there was an altercation, a confrontation on the street and that confrontation to an extent has been captured by CCTV footage and that CCTV footage was Exhibit B on the plea and I have viewed that footage.  The footage reveals your action that underpins Charge 1 on the indictment, the charge of intentionally causing injury. It also sheds light on the facts underpinning Charge 2, the charge of affray.  You can be seen, along with a number of people associated with you, join in an unprovoked assault on your victim.

7Your victim had already been set upon by members of your group and you are a party to that affray, even though you were not captured on camera at all times, I was told that you remained in the vicinity.  During the affray, Mr Stock had been assaulted in various ways as I have said.  Whilst that affray was still underway, you entered, approached Mr Stock, you struck him with your right hand to the right side of his head, you struck him with a great deal of force, it is clear from the footage, and it is clear from what followed.  He was unconscious almost immediately after you struck him.  He fell to the ground, completely unprotected, landing on his back and his head hit the pavement. 

8

You were bouncing around on your feet for a few seconds, in an aggressive mode with your hands up in a fight-type mode and then you ran off.  Your blow to

Mr Stock's head caused him injury and a range of injuries in fact.  There are injuries suffered by Mr Stock that cannot be attributed, to the requisite standard, to your blow, although I am satisfied the blow you inflicted was of great force and had the potential to cause all of the injuries that Mr Stock has received. I will only sentence you on the basis, the agreed basis, of the injury that underpins Charge 1.

9When ambulance officers arrived, they noted that Mr Stock was unconscious, he had an altered conscious state, he was bleeding from his right ear and mouth, he had bitten his tongue, there was a laceration to the back of his head, he had vomited as a result of the assault, which carried with it a risk in the state he was in.  He suffered a rupture to his right eardrum, there are fractures that extended from his right petrous-temporal bone into his inner right ear canal.

10He has suffered impairment to his hearing.  The sort of assault you engaged in often results in far worse injuries.  As I have stated you struck him with considerable force, he was completely unprepared for your attack because you approached him from behind.  He had no opportunity to defend himself from the attack or indeed prepare himself in any way for it.  And of course because he was rendered unconscious and went to ground, it is the experience of the courts that those type of assaults often result in far more catastrophic injuries than the serious injuries that were occasioned to Mr Stock as a result of the combined affray, and the injury that you caused.  It is not uncommon in the courts to see actions such as yours resulting in death or permanent disability.

11

You were 20 at the time and have a limited history although it is relevant for the reason I have already stated, your previous appearance in court included the very same charge that you fall to be sentenced for before me.  You are now 22, you have been in custody, for in excess of 520 days, it would be around about

527 days now.  That is a significant period of time for a young person, you are now 22 as I have stated, for a young person with a limited although relevant history, a previous disposition that was without conviction disposition.

12And in circumstances where you have been in work in the past, you have some support and in circumstances where you have had to negotiate and navigate relocating to this country and making whatever cultural adjustments you have had to make in order to progress from a young age in Melbourne.

13I take into account the impact on your victim.  And there was a victim impact statement, two victim impact statements in fact tendered by your primary victim, Mr Stock, but also from his partner.  I will not repeat the details of those victim impact statements, suffice to say the impact of your crimes upon Mr Stock and his family have been severe and very significant.  They are ongoing and I have got no doubt they will be ongoing for a considerable period into the future.

Personal Circumstances

14You were born in New Zealand.  As I have touched upon you relocated to Australia with your Aunt, Uncle and younger brother in 2012.  I was told that you moved out from your Aunt and Uncle's care at the age of 18.  You attended Wyndham Central School until about Year 8.  You had some difficulty with schooling.

15You have worked for the most part upon leaving school.  You worked for your uncle in a furniture removal business.  You have worked in a logistics company unloading containers for Shelby Food Group.  Employment was difficult for you during the pandemic and particularly during periods of lockdowns, but I was told and I accept that you have prospect of further employment with the Shelby Food Group when you return to the community.

16I will not touch on your early life but I do accept that in your formative years you were exposed to family violence and this has had an impact on you.  And the trauma from those formative experiences has no doubt shaped you and your responses and I take that into account.

Matters in Mitigation

17You made admissions to your offending and I accept that you have insight into the wrongfulness of your offending, and you have accepted responsibility for it by your plea.  I consider your plea to be an early one, indeed you pleaded to the more serious offence of recklessly causing serious injury, when the matter was still in the summary stream at Sunshine Magistrates' Court.  I will not go through the detailed history of how and why the matter came to be uplifted, but you have maintained your acceptance of responsibility in this court and you are entitled to a discount for that plea of guilty.  It is a significant discount, given the utilitarian value of your plea.

18Indeed, the utilitarian value of a plea such as yours, are greater during this period, giving the - given the state of trial lists in this court and you receive a significant discount for that early plea of guilty.  And I accept that in your case, being a young offender, it's indicative of contrition and some remorse and acceptance of responsibility is a matter which I take into account in your favour when I assess your prospects of rehabilitation.

19Generally, I accept that your prospects of rehabilitation are good.  A significant matter for me to consider in relation to sentence is the fact that you face deportation as a result of the sentence I will impose.  That fact has weighed upon you from the time of the commencement of your remand.  Whilst I do not speculate as to what in fact will happen, it is almost inescapable that your visa will be cancelled.  There are various options as to what might take place from that point in time.

20But certainly, and this is common ground between the parties, it is appropriate for me to take into account that your time in prison has been more burdensome due to the prospect of deportation hanging over your head and aside from the burden of imprisonment, the mere fact of the prospect of deportation hanging over your head and the stress and anxiety that that causes is a matter I take into account.

21There was some discussion on the plea as to the appropriateness of a head sentence and non-parole period, as opposed to a period of time in custody followed by a Community Corrections Order.  Part of the context for that discussion rested upon the powers of the Adult Parole Board in circumstances where you are not a citizen and your visa is cancelled as one expects it will be.

22I have taken that discussion into account and based on other matters together with those considerations I have concluded that for a young person, and still a young person of your age, notwithstanding the gravity of the offending and the impact on the victim, it is appropriate to impose a combination sentence in your case.  I had you assessed for a Community Corrections Order and that assessment was favourable.  The assessment also added to some of the matters I was told that during your plea in relation to the support you have in the community and I was told that upon release you will reside with your partner in Tarneit with whom you have maintained regular contact, that you also speak with your parents who reside in New Zealand and family a few times a week, but you also have family support as I have mentioned here in Victoria. 

23I was told during your plea and it was confirmed again in the Corrections order assessment that you have been employed as a horticulture billet in custody whilst not in lockdown and that you expect you have work available to you upon release with - in the meat processing trade with the Australian Food Group.

24Taking into account the gravity of your offending, also I have due regard to the importance of general deterrence, and the community's denunciation of this sort of random street violence which ended in catastrophic consequences for your victim on this occasion, but as the community well knows from its experiences, can often result in even more catastrophic and far-reaching consequences.  Community is sick of this sort of random violence from young men fuelled by alcohol and other things.  And in particular, the severity of an assault such as yours when it occurs in those circumstances.

25So, I take those matters into account.  I also take into account specific deterrence in relation to yourself, but also your prospects of rehabilitation and your plea of guilty, acceptance of responsibility.  I was provided with some assistance in relation to other cases which help provide some idea of the range of course current sentencing practices, is only one matter that I had regard to.  But as I opened during your plea and already touched upon in this - in my reasons for sentence, it is not an insignificant amount of time that you have already been in custody, for a person in your circumstances of your age and your background and given the charges that you face and the maximum penalties available.

26So I sentence you as follows.

Sentence

27

Mr Fonokalafi, on the charge of causing injury intentionally, I sentence you to

18 months' imprisonment in combination with a 12-month Community Corrections Order.  We will come to those special conditions of the Community Corrections Order in a moment.

28In relation to the charge of affray, you are sentenced to three months' imprisonment to be served concurrently with the sentence imposed on Charge 1.

29I declare, pursuant to s 18 of the Sentencing Act, that you have served 527 days pre-sentence detention in relation to this matter.

30And pursuant to s 6AAA, if it were not for your plea of guilty, I would have sentenced you to a head sentence of three years and nine months' imprisonment with a non-parole period of 24 months.

31

In relation to the Community Corrections Order, the special conditions will include Alcohol treatment rehabilitation, you will be assessed for alcohol and drug treatment and rehabilitation.  Supervision, you will be subject to and also programs to reduce re-offending, in particular, whether it be anger management or a

Men's Behaviour Change whenever Corrections determine as the more appropriate program to address this sort of unbridled street violence that you have engaged in on this occasion.

32

I am not going to impose a community work condition.  I am satisfied that the

18 months or so, that you have - thereabouts, that you have served in custody, to date, is sufficient for the punitive aspects of the combined sentence I have imposed in relation to Charge 1.  Now are there any other orders, I need to make?

33MR WHITE:  No Your Honour nothing, further.

34MR OLDHAM:  Nothing further Your Honour.

35HIS HONOUR:  All right Mr Fonokalafi, it seems to me that you will be eligible for release onto a CCO, almost immediately, or very soon, if not immediately.  Do you consent to the Community Corrections Order?

36OFFENDER: (Inaudible response.)

37HIS HONOUR:  You are nodding your head, so I'll just indicate that - - -

38OFFENDER:  Yep.

39HIS HONOUR:  - - - for the sake of the transcript that you're indicating your consent for the Community Corrections Order.  Did I state it's to be of 12 months duration?

40MR OLDHAM:  Yes, Your Honour.

41HIS HONOUR:  Yes, it's a 12-month Community Corrections Order Mr Fonokalafi.

42OFFENDER:  Yep.

43HIS HONOUR:  I've declared you've served 527 days in custody.  I think 18 months is probably around about 540 days.

44MR OLDHAM:  It's 548, Your Honour.

45

HIS HONOUR:  So, 548.  I suspect you've probably got some emergency management days somewhere so that's not for me to speculate into, but at the outside you've got about 20 days to go before you go on a

Community Corrections Order, but I suspect with administrative adjustments you'll be, well Mr Oldham might be able to talk to you more about that, but it may well be today or tomorrow, I don't know.  But what you will be required to do, is to sign the Community Corrections Order, which will be conveyed to the prison and you are required to, within two working days of release, attend Werribee Corrections for your induction into the corrections order.

46OFFENDER:  Yes.

47HIS HONOUR:  The Corrections orders have got very important conditions attached to it.  It doesn't have community work but it does have treatment conditions.  So you're expected to - you're required to abide by those conditions and go to those treatment programs as directed.  If you don't you'll be in breach of the order and you'll be brought back before me for re-sentencing.  Do you understand all of that?

48OFFENDER:  Yep.

49HIS HONOUR:  All right.  All the best Mr Fonokalafi.

50OFFENDER:  All right, thank you.

51HIS HONOUR:  We'll adjourn the court.

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