Director of Public Prosecutions v Fualausia
[2021] VCC 1952
•23 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 21-01657
Indictment No. L12293964
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Junior FUALAUSIA |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2021 | |
DATE OF SENTENCE: | 23 November 2021 | |
CASE MAY BE CITED AS: | DPP v FUALAUSIA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1952 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally causing serious injury in circumstances of gross violence. Near fatal joint attack with 3 others with kicks, punches and multiple knife wounds. 21 ½ years old at time, 23 as at sentence. Relatively short criminal history; prior and subsequent appearance for assault. On CCO at time. Youth. Early guilty plea. COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Ms K. Rolfe | VLA |
HIS HONOUR:
1 Junior Fualausia, you have pleaded to one charge of intentionally causing serious injury in circumstances of gross violence.
2 You have a brief criminal history. You were 21 and a half years of age and on a community corrections order at the time you chose to commit this serious offence.
3 You are 23 years of age now.
4 You have been in custody since your arrest on 25 September 2020.
5 The summary correctly sets out the maximum penalty. This is one of those offences where Parliament has seen fit to enact some special provisions such as to fetter my discretion. Unless a special reason exists, there is a mandatory minimum non parole period of no less than 4 years imprisonment. It is also what is described as a category 1 offence, and so even if there was a special reason, there must still be confinement. I do not need to say anything more about these provisions as your counsel does not suggest that there is any special reason in existence here at all. She was explicit in saying there are none. Though there is no onus on you to bring yourself within the exceptions (Fariah[1]), having viewed all the materials I am satisfied that your counsel’s submission was correct and that there are no special reasons here. I have looked at a range of cases that look at forms of mandatory minimum periods and the sentencing task in such cases. Principally the case of Mammoliti[2], but also Johns[3] and Esmaili[4].
[1]Fariah v The Queen [2021] VSCA 213
[2]Mammoliti v The Queen [2020] VSCA 52
[3]Johns v The Queen [2020] VSCA 135
[4]Esmaili v The Queen [2020] VSCA 63
Facts
6 Ms Malobabic appeared to prosecute on the plea and relied upon a lengthy written amended summary of prosecution opening that was dated 15 November 2021. Your counsel, Ms Rolfe, told me that with one exception, it was an agreed statement and that document then was marked as Exhibit A on the plea. There was only that single issue and that was in relation to one answer in the interview by the police (see question and answer 158), and the suggestion from the prosecutor that it related to this victim. I accept your counsel’s submission in that regard and do not act on that answer.
7 As it is a lengthy agreed summary, I see no need to set out the full sentencing facts in these, my reasons. What I will do is sentence pursuant to that agreed summary.
8 By way then only of very brief summary, and that is all it is, the 24 year old victim was owed some money in connection with a drug debt of some description. The size of that debt was not made clear to me. The victim was pressing for the payment of the debt, and you sent some texts to others indicating you had to put it to rest. The next day he sent you texts asking for payment, and he suggested that you were beating around the bush. On the day of the assault, you sent him a text at 2:29pm saying you had his money and to swing past. He agreed to do just that. Plainly you had no intention of paying him. He was lured to 54 Hammond Street and upon exiting his car was immediately assaulted. It was a joint attack by you and three others. He was kicked, punched and struck with a light pole by your offsiders and stabbed by you on multiple occasions. He was completely overwhelmed. It was broad daylight and a frightening sight, and nearby residents and a few passers by either observed or heard the attack. The victim was defenceless and was lying back being struck by all and sundry.
9 One of the residents went out after hearing the commotion which ran not for seconds, but for some minutes. She saw a group walking away and she then heard the victim call out ‘help me’. The victim was by then seated in the car covered in blood and saying that he could not breathe, and he could not. There was blood bubbling at the site of some wounds. Others attended. I am not going to set out all the observations made of the assault or the aftermath of the assault. The agreed summary does that. I will act on the agreed summary which sets out what was seen and done. The assault was brutal. It was sustained and with a high level of violence. Kicks and punches to head and body. Multiple knife wounds and a victim who really could do nothing but absorb the punishment that was being inflicted.
10 Essentially, you walked away leaving him to his fate and it really is a matter of pure luck that he did not die. He received CPR at the scene.
11 The summary sets out some of the injuries and the treatment required. There were 12 separate stab wounds.
12 I mentioned that at the scene he said he could not breathe and that was because his lungs were severely compromised. He had a near complete right lung collapse and a large collapse of the left lung. There was a knife wound to his neck. The jugular vein was implicated. There was injury to the laryngeal nerve and paralysis of the right vocal cord. There were a number of stab wounds to his trunk, some were deep, and the liver capsule was impacted. There were rib fractures and broken front teeth. I am not going to set out all the injuries. The summary does that, read in conjunction with the expert report within the depositions from Dr Schreiber of the Victorian Institute of Forensic Medicine. Having been resuscitated at the scene, he was then rushed to hospital in a critical condition. Again, but for the treatment at hospital which included a massive emergency blood transfusion, he would likely have died. He was intubated and spent three days in intensive care and was seen by a battery of health care professionals including emergency specialists, general, plastic, orthopaedic and cardiothoracic surgeons as well as an ear, nose and throat specialist and a dentist. He remained in hospital for 9 days. He was discharged on 7 February but presented with chest pain on 9 February. He spoke of the ongoing impacts when he was compulsorily examined on 30 March 2021 (see page 1595 of the depositions and paragraph [54] of the Crown opening).
13 As I have said, it really was a matter of pure good fortune for your victim, and hence for you, that he survived. Had he not, you undoubtedly would have been charged with murder, and if convicted you would have spent all of your twenties and likely most of your thirties at least, behind bars. He did survive and so I am dealing with you for the serious offence of intentionally causing serious injury in circumstances of gross violence.
14 The summary sets out the ongoing investigation. In the days immediately after this attack, you had made some admissions to your then girlfriend to stabbing your victim everywhere including to the neck. You said you thought you had killed him. Your phone was seized on an unrelated matter on 29 February 2020 and various messages were downloaded. Phone records showed you were in the vicinity at the time of the assault, and also had been sending texts indicative of having some role. There was also an intercept in place in relation to another number you were using later on. That was from 3 September 2020 and there were many calls where there was some veiled discussion about the event and the progress of the police investigation.
15 You were arrested on 25 September 2020 and interviewed by the police. You were not in any way truthful with them. That is not in any way a matter in aggravation. Simply, you just cannot point to being co-operative with the police or making admissions. You did neither. Had you done so, well of course, that would have been a mitigatory consideration. But it does not exist here.
16 As I understand it, only one other person has been charged and he has yet to be dealt with.
17 So much then for my short summary of the summary. I sentence pursuant to the more detailed agreed amended written statement which is marked as Exhibit A.
Impact
18 There is no victim impact statement here. It is however obvious that this was a frightening attack which almost killed your victim. He may not be happy to tell a Court that, but it is the inescapable conclusion from the materials placed before me. He was hospitalised in a critical condition and underwent surgery. He had damage to his vocal cord and salivary glands, broken teeth and a host of other injuries. There has been serious physical impact in the short term, as well as a decent level of residual physical and psychological impact as well. He described earlier this year at the compulsory examination still being short of breath and unable to do what he used to do physically. Of having issues with his lungs and nerve damage and anxiety and post-traumatic stress disorder. Of being ashamed of the scarring on his body and the ongoing problems that he was experiencing with the teeth injuries. You have changed his life forever. He will certainly never forget the day that you came so close to ending his life.
In Mitigation
19 Your counsel Ms Rolfe conducted the plea on your behalf and relied upon a written outline dated 15 November 2021 as well as a letter from your sister, three drug screens and a statement of results from Box Hill institute.
20 She placed before me some details of your personal and family background including your educational and employment history. She made some submissions as to the relative gravity of the offence and the relevant sentencing principles in play in this case. She made submissions about your prospects of rehabilitation, describing them as reasonable.
21 She relied upon the following matters in mitigation:
· Your early guilty plea in the midst of the global pandemic;
· The presence of some remorse to be implied from your guilty plea;
· Your youth; and
· The impacts of COVID-19 upon your custodial experience to date and into the future.
22 In truth, there were not too many matters in mitigation in this case. That is just a fact and is not said to downplay the matters which were being relied upon.
23 I have mentioned already the special provisions within the Sentencing Act which exist in relation to this offence. Your counsel was not suggesting that there was any special reason in play here. Plainly, she was correct in that submission, and I will spend no further time dealing with the various exceptions set out in the Act. It follows then that I must impose a non-parole period of no less than 4 years.
24 Your counsel was correctly conceding the inevitability of a significant prison sentence with a non-parole period.
Prosecution
25 Ms Malobabic, on behalf of the Director of Public Prosecutions had prepared some detailed written submissions dated 15 November which were marked as part of exhibit A. I see no need to repeat those various matters. She made submissions about matters of seriousness and the relevant purposes of sentencing, but also concessions as to the existence of some matters in mitigation in this case. They were generally uncontroversial submissions as your counsel made clear to me when I asked her about them. The prosecutor referred to a handful of examples of sentences imposed for this crime though there was no suggestion any case was on all fours with this one. The fact is, there have not been that many people dealt with for this offence.
26 The prosecution was calling for a prison term with a non-parole period but so much had been readily conceded by your own counsel. That is a given, as soon as there is the absence of a special reason, as there is here.
Background
27 I am not going to descend into the fine detail of your background. I have no reason to doubt what I have been told about the details of your personal and family background. Those details have been placed before me in the written submissions from paragraphs 3 to 13, as well as in the letter from your sister. I accept that background. I am not satisfied on the balance of probabilities that your background has anything to do with your decision to commit this very serious crime. Your counsel did not suggest that there was any link at all between your background and the offending. She made it clear she was not relying upon any of the principles from the well-known case of Bugmy[5]. Those principles, of course, do not require any causative link but they were not being relied upon here. She was explicit.
[5]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
28 She asked me not to ignore your background. Well, of course I will not. After all, you are the person I am sentencing.
29 In any event, there is no point me restating your background in all of its detail. Very briefly then, you are 23 years of age born on 10 July 1998 to a mother of Thai and Samoan background and a Samoan father. You were one of 5 children. You are the second youngest and you came to Australia really as an infant, aged 9 months, in 1999. Your parents had separated prior to that and your father has been a very distant, almost non-existent figure in your life. You last saw him at a funeral when you were 8. So many years ago now.
30 That trip to Australia was for a wedding, but owing to a health emergency involving your mother, she and the rest of the family – including you - stayed here. Your mother’s health remained very poor for some years, and you were looked after by your sister. Her reference describes the family setting and the existence of continued support on offer to you. I take that letter into account. You had an older brother who has some serious issues including an intellectual disability. You are an Australian citizen, so at least there is not the spectre of deportation hanging over your head in this case. You have a close relationship with your mother and sister. You were very protective of your mother as you grew up. Your mother did her best for you and your siblings and she has held down a number of jobs, but it was pretty tight financially as you grew up as I understand it. There was certainly no hint of privilege in your existence. You lived at the family home until 2019 and you were excluded pursuant to an intervention order at that stage. Your counsel explained the circumstances of that order arising from an assault upon your sister where in response to her striking you, you punched her in the mouth and smashed a bowl. That act seems now to have been forgiven according to her letter. You resided though, with one of your brothers in Cranbourne and that is where you lived at the time of this crime.
31 Educationally, you completed year 11 VCAL and left towards the end of year 12 VCAL. You then completed a TAFE course. You have had a number of unskilled jobs - referred to in paragraph [11] of the defence submissions. You had a relationship with Neleah Williams, which spanned 5 years, but that has now ceased. I am told you have had issues with cannabis with escalating use over the years.
32 You have a short but relevant criminal history. At the time of the offence I must deal with, you were on a community corrections order for the incident with your sister which had occurred in early June 2019. That went to Court on 6 August 2019, and you were placed onto the community corrections order. In fact, the day before you were due to attend that Court hearing, so on 5 August 2019, you committed another assault. This time upon a man at a library. I have not really been told what that was all about. Further, in late February 2020 I was told you committed a number of driving offences as well as a car theft and possession of property suspected of being proceeds of crime. All but the library assault had occurred in the currency of that earlier community corrections order I described. Those fresh matters and the breach of the community corrections order that you were on were dealt with in May 2020. The order was varied to take effect upon your release from the prison term which was imposed on the same day for those fresh offences. That prison term of 150 days aggregate was for the driving offences as well as for that library assault.
33 I was also told as a matter of completeness, that whilst in custody you were charged with intentionally causing injury and assaulting a worker arising from an alleged incident in custody in March 2020. That matter is outstanding and your plea at this point is uncertain, so I have no regard to that matter at all. That is listed at the same time as the breach of the second community corrections order later this month at the Sunshine Magistrates Court. The breach, as I understand it, is admitted.
34 It is then your second time in custody. It has not been an easy time to be in custody, coinciding as it has with a number of restrictions arising as a result of COVID-19. You have been held at the Metropolitan Remand Centre and more recently at Port Phillip Prison.
35 No expert report has been provided to the Court. I asked about that merely as it struck me as unusual not to have a report provided to the Court in a case of this level of seriousness. Ms Rolfe told me one had been commissioned and obtained from a clinical psychologist but was not being relied upon and so had not been placed before the court. Well that is entirely a decision for your legal team and of course, it is a matter which is entirely neutral. I do not speculate about what was in it or why it was not filed. It just was not. I have decided, though, not to call for any report myself.
36 I am told you have remained drug free and there are three clean drug screens as well as the course statement of results placed before me, marked as Exhibit 3.
37 Now, I am not sure there is such a thing as a perfect background. We certainly do not see too many offenders with excellent backgrounds in this Court, but we see a lot with far worse backgrounds than yours. When I reflect on your background, it seems clear to me that it was not the easiest of backgrounds. Money was not abundant. You had no father in your life and a mother who was unwell for periods. She did her best by you, and as a result you had a level of stability in your life. You went to a single primary school and a single high school. Plainly enough, your mother and sister loved you and they still do and provided as best they could for you. There is no suggestion of any exposure to violence in the family home or to bad role models. That is not what has been put before me at all.
38 Well I do not ignore your background. It was not the easiest of backgrounds though as I say, we see far, far worse. The fact is though, there is the absence of any lengthy history before the Courts. There were no Children’s Court appearances. You got to the pointy end of school and did a TAFE course and then you found employment. Considering your background, you really have not done too badly at all and I accept the submission that this is pertinent to the judgment that I make as to your future prospects. It does not though, lead to any significant reduction in your culpability. That is not the nature of the background that you had, and that much is conceded explicitly by your counsel. I turn then to consider the other matters raised by her.
Guilty plea
39 The first of those matters is your early guilty plea. The chronology is set out and it is apparent that there were occasions when you were awaiting further material. It was entered at what I will treat then as the earliest stage and as a result there have been considerable savings. By pleading guilty you have taken early responsibility for your offending.
40 As a result, the time, cost and effort of a committal hearing or trial has been avoided. Witnesses have not been required to give evidence - other than the victim I should say - and you are not responsible for that event. That was not at a committal hearing, but rather at a compulsory examination owing to his lack of cooperation with the police.
41 Pretty clearly then, the chief witness was a reluctant one and giving evidence at a trial or committal would have been an unpleasant undertaking for him. It has not been required.
42 You have in these ways facilitated the course of justice.
43 Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes[6]. There is an ever-growing backlog of cases waiting for a hearing and your case is not one of them.
[6]Worboyes v The Queen [2021] VSCA 169
44 I take these various matters into account in mitigation.
Remorse
45 Your counsel pointed to your plea and argued it was indicative of some remorse. She said she could point to no other material suggestive of remorse. Well, I do not see evidence of remorse here. None in the police interview. None in the text traffic where there is not a whisper or hint of concern for your victim’s predicament.
46 You have pleaded guilty and that is sometimes, though not always, indicative of some remorse. I am, though, prepared to treat it in that light in this case. Other than your guilty plea though, I can really see no remorse on display. So I take the existence of this limited remorse into account in your favour.
Youth
47 Your counsel relies upon your relative youth at paragraph [20] to [21] of her submissions.
48 I will come in one moment to set out my conclusions as to your prospects of rehabilitation. Your youth is plainly relevant to that task. The setting here is not of some 40-year-old lag who has been offending repeatedly and ignoring court orders for two decades. You are still young and were younger still at the time of the offence. You were 21 and a half years of age then and 23 now. You were however not some silly teenager or youthful first offender.
49 Your counsel was relying on the well-established principles which must be considered and applied when a court is dealing with a youthful offender. So she referred to the cases of Mills[7] and Azzopardi[8].
[7]R v Mills [1998] 4 VR 235
[8]Azzopardi v The Queen [2011] VSCA 372
50 There are references in a number of cases to the reduced weight which sometimes must be given to youth. See Azzopardi and Lawrence[9]. See also the recent case of Jawahiri[10] which discussed some of these principles.
[9]DPP v Lawrence [2004] VSCA 154
[10]Jawahiri v The Queen [2021] VSCA 287
51 The law ordinarily treats youth as a matter of importance. Young people are less mature and more prone to acting under peer pressure or without really thinking through the consequences.
52 They are generally speaking, less culpable.
53 Generally speaking, greater weight is devoted to rehabilitation and less weight is given to punitive purposes such as punishment, community protection and deterrence.
54 The law recognises also that young or youthful offenders are more able and likely to be rehabilitated as they are less set in their ways. With youth there is almost always some hope.
55 It is for these and many other reasons that the benchmark for sending a youthful offender to prison is a high one indeed.
56 There is no question here, but that I must send you to prison for a long time and that is so, despite your youth. The general principles of sentencing would require such an outcome and that is before considering the specific statutory provisions which mandate a non-parole period of no less than 4 years.
57 Your youth is still of significance, but what is also clear from the cases is that the weight to be given to youth and rehabilitation will vary from case to case. As I said on the plea, Redlich JA, in Azzopardi, stated that as a general proposition, the more serious an offence, the less weight will be given to youth and rehabilitation. That is because more weight must be devoted to some of the other purposes of sentencing.
58 I do not lose sight of your relative youth. I do accept your counsel’s submission that this is not one of those cases referred to in Azzopardi where the mitigatory effect of youth is all but extinguished. That is not the position I find myself in at all. I do not say that there is no realistic prospect of rehabilitation at all here, but \this was a serious crime indeed.
59 It is conceded that at the end of the day, your youth and rehabilitation must surrender ground to the other purposes of sentencing here.
Rehabilitation
60 I turn now then to those prospects of rehabilitation. I have already mentioned a moment ago that in my view those prospects are not all but extinguished.
61 It is a bit hard not to be guarded here.
62 Your counsel argues that you have reasonable prospects of rehabilitation. That you have youth on your side. You have the short but relevant criminal history - prior and subsequent - but you had actually not done too badly at all given your background. You had finished school, you have worked in the past and you have a supportive family. She argued you are at least ashamed for bringing impact upon your mother - see paragraph 9. You have been clean in custody and you have done a course. You have pleaded guilty at the earliest of stages and there is some limited remorse. Well these are all positives.
63 You were however, on a Court order at the time of this serious offending and what offending it was.
64 You committed other violence offending - the library assault - the day before you were due to face Court for that assault upon your sister. You have chosen to commit this serious crime that I must deal with whilst on that original community corrections order. You have now breached two community corrections orders.
65 You have had issues with drugs over a number of years, and that always casts something of a shadow over the future.
66 One would hope that the time you have served to this point and the significant time which lies ahead in prison into the future will deter you from offending.
67 I certainly will not write you off. Having considered all of the materials, I am prepared to accept that you do have realistic prospects of rehabilitation.
COVID-19
68 I accept the submissions made by your counsel at paragraph [22] of her submissions as to the impact of COVID-19 restrictions on your custodial experience.
69 It is clear that the COVID-19 virus and the response to it by those running the prisons has increased your prison burden. Prison has undoubtedly been a more stressful environment in the time that you have been there to this point and that is for a period well exceeding 400 days. Social distancing would not be easy. No doubt there has been worry about catching the virus in such a setting where, unlike someone in the community, there is just no level of autonomy. There have been some lockdowns and you have also experienced the increased burden of quarantine on occasion.
70 You have had some limitations to visiting and courses in the period in which you have been held.
71 It has not been a good time to be locked up.
72 What lies ahead in the future is impossible for me to determine. I am not free to speculate about that. I cannot speculate for instance about how long restrictions on in person prison visits will persist. We have been starting to open up in the community owing to the increased vaccination rate. Significant opening up in the community occurred late last week owing to us reaching the 90 per cent vaccination target. Prisons seem to have lagged a bit behind the community in terms of lifting restrictions. Presumably the restrictions in a prison setting will lift in the not too distant future, but I cannot say when that will happen. Those whose job it is to run the prisons will be able to reflect on the impact of any past and any ongoing limitations on a case by case basis. They will have the power to address any increased burden in your case by way of conferring emergency management days. Now I cannot know if that will take place or not, and I do not proceed on the assumption that it will. I just cannot know. I cannot speculate about that.
73 I do take into account though that it seems likely that these current restrictions will continue into the future, at least in the short term. No doubt that will produce some worry, uncertainty and heightened custodial burden. So I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel.
General
74 I turn then to some more general matters. I am required to take into account a large range of matters including the maximum penalty and the nature and gravity, as well as the impact of the crime.
CSP
75 I am required to take into account current sentencing practices. Current sentencing practices are only one factor amongst many, and they are not a controlling factor. I have looked at a variety of materials. I have looked for instance at the Sentencing Advisory Council Snapshot No. 238 for the crime of intentionally causing serious injury. Plainly enough sentences for that crime will have relevance to my task. That was recognised by your own counsel who referred me to a Court of Appeal case of Nash[11] dealing with that crime and the principles at play including the assessment of gravity of the given offence.
[11]Nash v The Queen [2013] VSCA 172 (“Nash”)
76 I am dealing with you for intentionally causing serious injury, but with the additional element that it was committed in circumstances of gross violence. This crime has the same maximum penalty as intentionally causing serious injury. That additional element of gross violence attracts the special sentencing provisions I have discussed. The s15A provision does not however alter the way that I must assess the offence seriousness.
77 There is no sentencing snapshot for this offence. I have looked instead at the Sentencing Advisory Council online data.
I have looked also at the Judicial College of Victoria sentencing manual case collection of sentences for this crime at 4.1.
78 I have looked at a number of cases including those I was referred to. None of those cases is on all fours.
79 I have looked at the cases of Lukudu[12] and Evans[13] which speak of the importance of general deterrence and the reality of sentences in the high single figures and into double figures for some instances of the crime of intentionally causing serious injury. I note also the observation in Lukudu that sentences have increased for the crime of ICSI – see paragraph 46.
[12]Lukudu v The Queen [2019] VSCA 248
[13]Director of Public Prosecutions v Matthew John Evans [2019] VSCA 239
80 In the case of Nash a case to which your counsel referred, Priest JA said that the experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable and therefore the sentences imposed widely vary.[14] He went on to say that there were cases involving protracted savagery while others were constituted by a single punch. There were some involving a variety of weapons. Further, that the injuries widely varied from gross and permanently disabling injuries to others that barely cross the threshold of the definition of serious injury.
[14]Nash v The Queen [2013] VSCA 172 at [55]
81 Well those same things will apply to an assessment of the gravity of an instance of intentionally causing serious injury in circumstances of gross violence.
82 I have mentioned looking at the various statistics, but they have inherent limitations. They say nothing at all about the individual features of any case. They say nothing about the offender. They say nothing about the crime. They are just numbers on a page and they are, hence, silent as to all of the many features of aggravation or mitigation which might exist in a given case and which would explain a particular sentencing outcome.
83 Other cases, even comparable ones if they can be found, also have significant limitations. They are not precedents to be followed unless somehow distinguishable. They are merely instances of either another single judge or an Appellate Court sentencing another offender for another instance of this crime. As I have said, there have not been too many such instances. There are always differences as there were in the handful of cases to which I was referred, and the various other cases that I have looked at in the JCV sentencing manual.
84 There is no such thing as one correct sentence, and another judge in any of these other cases I have looked at might permissibly have imposed a different sentence, either higher, or lower for that matter. What I must do is pass an appropriate sentence in your case.
85 That outcome is not driven by what has happened in other cases, or by what the statistics disclose as to what has most commonly been done in the past. I am exercising a sentencing discretion in this case. Your case.
Purposes
86 I have to take into account the various purposes of sentencing.
87 Rehabilitation is one such purpose. I do not ignore your youth or my conclusion that you have realistic prospects of rehabilitation. Your youth and rehabilitation are not however the only things that I must consider.
88 As I have said, and as is conceded by your counsel, youth and rehabilitation must surrender ground to some of the other sentencing purposes here and that is owing to the very serious nature of your offence.
89 Punishment is obviously an important sentencing purpose here.
90 You must be punished for your crime, justly and proportionately.
91 I must also denounce your conduct. Again, that is an important purpose of sentencing for a crime as serious as this one. This was an extraordinary act of violence carried out in a public place in broad daylight. It must be roundly denounced. I do not accept that it occurring in daylight and being observable by witnesses is a feature somehow in mitigation. Whether a night time event is worse or not would depend on a range of factors. It was a curious submission at paragraph [16](a) of the written submissions. I do not accept it is mitigatory that it occurred in broad daylight. Nor though, do I treat that as an aggravating feature. It is just the fact of this case that it occurred in daylight hours.
92 Community protection is self-evidently an important purpose of sentencing here. This was a dreadful offence committed upon an unarmed and defenceless man in a public place. He was lured to attend, surrounded, and pounced upon. You were using a weapon with abandon. The crime involved really quite gratuitous violence.
93 Specific deterrence - that is to say the need to deter you - is obviously of real importance here. You must be deterred from ever offending in the future in this way. You were on a community corrections order at the time for a crime of violence albeit an offence at a much lower level committed against your sister. That community corrections order seems not to have deterred you. As I said, the other assault – the library assault – for which you were dealt with, occurred the day before you were to go to Court for the assault on your sister, and that second community corrections order has also been breached though the hearing lies ahead later this month. Plainly I must deter you.
94 I trust that being arrested and remanded in custody has had some role in deterring you already. I also believe that the sentence I will soon impose which will significantly extend your stay in custody will also serve to deter you to.
95 General deterrence relates to the need to deter other offenders in the future. It is an important sentencing purpose in this case. There is some reduction of your culpability owing to your youth and some allowance for your background. There is, however, no reason to greatly reduce the weight given to general deterrence in this case.
96 Unfortunately, it is clear that there are enough young men who engage in violent acts. There are also, regrettably, enough young men who carry weapons and even use them. The use of a weapon raises the stakes very significantly as it did in this case.
97 A proportion of the offenders who commit serious acts of violence in public places are young, and the message must be driven home to that group.
98 The fact is though, I must seek to deter any likeminded offender - young or old - from engaging in this style of conduct.
99 This was a violent joint attack with fists, boot, a light pole and a knife. All of it occurring in public. The courts have a role in deterring other people in the community who might be minded to commit this type of serious offence of violence. The message must be sent loud and clear to likeminded potential offenders that this sort of serious crime of violence will simply not be tolerated and it will be met with strong punishment.
Gravity
100 I have to pay regard to the gravity of the offence before the court. Intentionally causing serious injury in circumstances of gross violence is an inherently serious crime.
101 I have to assess the nature and gravity of this particular instance of the offence.
102 It Is not too strong a word to describe this offence committed by you as grave. I have already mentioned some of the features which make it so. The ‘in company’ nature of the attack is the particular which is relied upon to establish gross violence, but I am entitled to have regard to the numbers and what was being done by them and the vulnerable position of the victim. Those things are not rendered irrelevant because the ‘in company’ nature is specified as the circumstance of gross violence.
103 There was obvious premeditation here. Your counsel seemed, in her written submissions, to rely upon the absence of that particular of planning in s.15A(2)(a) as somehow removing from the equation any suggestion of planning in the lead in to your conduct. That is impossible to accept. The fact is there are a variety of circumstances which can be specified as the circumstance of gross violence. One matter is specified, and here it was your being in company with two or more others. That plainly does not foreclose the courts consideration of the actual circumstances of the offence. What it does do is satisfy the element of intentionally causing serious injury with gross violence as one circumstance under s.15A(2) is enough.
104 Well, you were ‘in company’. This was neither spontaneous or opportunistic offending. Your victim, as I’ve said earlier, was lured to the location and then the four of you fell upon him. You had the knife. One of the other men had a weapon being the light pole. You all had disguises. So there were vastly superior numbers, and he was quickly and completely overwhelmed. The attack continued and was sustained. Kicks, punches and strikes with the light pole – they would be bad enough, but there was your extraordinary repeated use of the knife to stab him in such a setting as that, including a number of stabs into vital areas.
105 It was in fact, a dreadful joint attack. It was sustained and continued well beyond any point where he was meaningfully able to do anything to resist. That he was being used as a punching bag, well that would be bad enough. But you were not punching him. You were knifing him and you were doing that repeatedly. There were 12 strikes.
106 The injuries were life threatening. He would likely have died but for the treatment he received at the scene and then at the hospital, and he might easily have died anyway, notwithstanding all of that treatment.
107 You walked off and left him to his fate.
108 Serious injury is defined as ‘injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted’. Both limbs are made out here. Your victim was left in a critical condition. He survived.
109 Further, the effect of those injuries has been substantial and protracted.
110 I have mentioned already the discussion in the case law as to the large variants of conduct that can make up an instance of intentionally causing serious injury. Those statements from cases including that of Nash clearly have application here. Some serious injuries whether under this provision or s16 intentionally causing serious injury can be caused by a single punch. Sometimes there might be a case with injuries which just barely meet the definition, or where there is some disconnect between the mechanism and the extent of injury such as when a person is punched and falls and strikes their head.
111 That is not what I am dealing with here. This was a joint, planned, and as it turned out, brutal attack and you were using a knife repeatedly to attack a subdued and overwhelmed victim. You came perilously close to killing him. Priest JA mentioned in that case of Nash, as I have said - the concept of protracted savagery and it is apposite here. It is very hard to fathom why someone could or would act as you did with such savagery, but you did. That is what I must deal with.
112 In fact I am satisfied beyond reasonable doubt that you intended to cause your victim really serious injuries.
113 The Court of Appeal in Lukudu made some observations that are pertinent to my task in assessing the gravity of this conduct.[15] Well here I have the use of the weapon. I have the context of the offence. I have the severity of the injuries.
[15] See paragraphs [35] to [40] and also [46]
114 Injuries that as I say, so easily have been fatal but for prompt medical attention at the scene and then later at Hospital.
115 As a Judge of this Court, regrettably I do see from time to time, injuries that are more catastrophic than these in terms of their ultimate physical residual effect. So injuries, if you like, with a greater lasting impact. We as judges see some victims who are reduced to a highly compromised - even a dependent state - as a result of, for instance, a brain injury. We see some unfortunate victims who have sustained spinal injuries and they might be wheelchair bound for life with all of the adjustments to be made. I am not dealing with that sort of impact here. That is obvious.
116 But the serious injuries which I am dealing with were of a very high level in that they could so easily have proved fatal.
117 It would seem that your victim has not been left with massive residual physical issues, but the impact has still been large enough.
118 The violence and the mechanism of injury was extreme.
119 Your counsel set out in paragraph 16 of her submissions, factors which she said could cause this instance of the offence to be distinguished from more serious examples of the offence. I have already mentioned the timing of the event. I reject that submission if it was being relied upon by way of mitigation. I do not believe it was actually being relied upon in that way. Rather, it was suggested as being the absence of a matter in aggravation. That point goes nowhere in my view. I will deal with you for the crime you have committed, not for one occurring at night, though I repeat that I am dubious as to one being worse than the other by virtue of the timing alone.
120 The absence of planning is simply impossible to accept. I do not, by the way, conclude that you had planned to commit this actual crime. I do not conclude against you that you had mapped out this intention to inflict serious injuries in company with others. But it is inescapable on the materials, and I am satisfied of this beyond reasonable doubt, that this man was being lured to the scene to be assaulted by a group. Your counsel I believe ultimately accepted that. I note that she took no issue with the Crown sentencing submissions which mentioned a degree of planning here.
121 The absence of threats is neither here nor there. A threat had it been made, would have put your victim on notice to stay away from the scene. You did not want that. Instead, he was lured by the promise of payment of the debt, that payment being the furthest thing from your mind.
122 The absence of restraint is simply a factor not present here. It is not in any way mitigatory. He did not need to be restrained. He was surrounded by four men who immediately went about the business of assaulting him.
123 I have spoken already about the absence of any ongoing profound physical issue such as a brain injury. The absence of profound ongoing disability is more by way of good fortune than anything else, but of course I must take that into account.
124 Finally I reject the suggestion it was of brief duration. It really was not. I asked your counsel what she meant, and she said that the attack did not go on for hours. Well, I certainly accept that. The fact is though it was a sustained attack. The summary is after all an agreed one.
125 In truth these various matters in paragraph 16(a) to (f) in the written submissions were being raised as the absence of matters of aggravation.
126 The fact is, there are ample features of aggravation present in this case.
127 One can probably always imagine a more serious example of a crime. There can almost always be more serious outcomes. That is not the best way to judge the seriousness of the actual crime before the Court. What I must do is look at this crime and how it was committed to assess the seriousness of this instance of intentionally causing serious injury in circumstances of gross violence. Viewed objectively, this crime is, in my judgement, a serious example of that crime. It was, in my view, grave offending. The use of the knife was just totally extravagant.
128 I dealt with an intentionally causing serious injury case recently when dealing with a young man named Jawahiri. I had occasion to review some of the past case law in relation to that crime and the serious examples of that offence.
129 One of the cases was that of Zullo[16] where Nettle JA made it clear that sentencing practices for that crime had moved on from those days where there had been a lesser maximum. He said that the top of the range was now upwards of 15 years. That was when he spoke in 2004. The Court of Appeal in a later case of Terrick[17] referred to a series of cases handed down in 2004 where a number of statements had been made as to the seriousness of the offence of intentionally causing serious injury. The cases included the case I have just mentioned, Zullo, as well as Lawrence, Huynh[18] and Sa[19]. The Court of Appeal in Terrick made clear that the aggravating features common to many of the cases with the high level sentences were;
i) where the attack was unprovoked;
ii) that it continued after the victim had become unconscious; and
iii) the victim sustained very severe injuries.
[16]DPP v Zullo [2004] VSCA 153 (“Zullo”)
[17]DPP v Terrick [2009] VSCA 220 (“Terrick”)
[18]R v Huynh [2004] VSCA 156 (“Huynh”)
[19]R v Sa [2004] VSCA 182 (“Sa”)
130 Very fortunately for you and for your victim, as dangerous and precarious as his injuries were on the day and days beyond, and as serious as the impact undoubtedly has been, it has not reached that highest level of injury represented by those catastrophic impacts that I have mentioned such as brain injury or paraplegia.
131 There is no question, but that he has been affected by your crime, but as a matter of pure chance, he has not been left with those sorts of catastrophic outcomes that I have spoken of. That was the point being made by your counsel. I accept it.
132 Let me tell you, it is only for that reason that you avoid the imposition of a sentence well into double figures and that is because there are many other features of aggravation in this case.
133 Your counsel conceded the inevitability of a term of imprisonment. Well, that was obvious. The legislation sets minimum non-parole periods. That is what they are. They are minimums. I apply the principles from Mammoliti[20] to my task.
[20]Mammoliti v The Queen [2020] VSCA 52; 281 A Crim R 511
134 There must be a gap of at least 6 months between a head sentence and a non-parole period. It follows that for anyone committing this crime and who does not fall under the exceptions in the legislation, the lowest theoretical sentence, would be 4 and a half years. I am not passing a theoretical sentence. I must pass an appropriate one. Your culpability was high here. The objective seriousness, also high. The only reduction of any note in your culpability arises from your youth.
135 A crime such as yours demands a sentence well above that figure of 4 and a half years and a non-parole period well in excess of the mandatory minimum period, which is set at 4 years.
136 At the same time of course, I must avoid a crushing outcome upon you.
137 Plainly then I must impose a sentence of over two years. There are only a handful of circumstances in which a Court sentencing someone to a term of 2 years or more is not required to fix a non-parole period, and they do not exist here. So I must fix a non-parole period, but must not speculate as to whether you will be released on parole. That decision will be made by the Adult Parole Board.
138 I will fix a non-parole period which will provide for the possibility of a decent period on parole should you be so released. Whether you are, is a matter for the Adult Parole Board, not me.
Sentence
139 On Charge 1, the charge of intentionally causing serious injury in circumstances of gross violence, I convict and sentence you to 8 and a half years imprisonment. That is the only sentence and is therefore the total effective sentence in this case.
Non Parole Period
140 I fix a period of 5 and a half years during which you will not be eligible for release on parole.
Section 18 PSD
141 You have been in custody already for a period of 424 days, and you get credit for that. That will be noted in the records pursuant to s18 of the Sentencing Act.
6AAA
142 I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty of this offence by a jury, I would have sent you to prison for 11 years. I would have fixed a non-parole period in that setting of 8 and a half years and that declaration, likewise, is to be entered into the records of the court.
143 HIS HONOUR: Let me just see if there any other matters, please. Any other matters from you, Ms Malobabic?
144 MS MALOBABIC: No, Your Honour. As Your Honour pleases.
145 HIS HONOUR: From you, Ms Rolfe?
146 MS ROLFE: There’s not. As Your Honour pleases.
147 HIS HONOUR: All right. Now I’m assuming you’ll need to make arrangement to speak to your client and to discuss what’s occurred here today and his rights in relation to it.
148 MS ROLFE: Yes. Certainly, Your Honour. I just wonder, would be able to be accommodated for a couple of minutes following, or - - -
149 HIS HONOUR: No. Well you’ll be cut off, I’m sure. We’ve really only got this link. I’ve enquired and I’ve been told that it cannot be – it just can’t be extended. So we’re going to lose it in probably two minutes I think. So I don’t think that’s going to be much use to you, is it?
150 MS ROLFE: No, Your Honour.
151 HIS HONOUR: So you’ll be arranging some form of conference with your client in due course. All right.
152 MS ROLFE: I certainly will, Your Honour.
153 HIS HONOUR: Yes. Okay. Well thanks each of you for your assistance, and that completes the matter. So Mr Fualausia your counsel will be in contact with you to discuss the outcome and give you advice in relation to it all right.
154 OFFENDER: Too easy.
155 HIS HONOUR: Yes. So I’ll disconnect the link now please. Thank you. And yes. All right.
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