Director of Public Prosecutions v Ooi
[2021] VSC 591
•17 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0225
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| HUAI DE OOI | Accused |
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JUDGE: | Lasry J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2021 |
DATE OF SENTENCE: | 17 September 2021 |
CASE MAY BE CITED AS: | DPP v Ooi |
MEDIUM NEUTRAL CITATION: | [2021] VSC 591 |
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CRIMINAL LAW — Sentence — Manslaughter — Unlawful and dangerous act — Prolonged attack in company — Violent offending — Deliberate concealment of body — Lies to investigating police — Late plea — No psychological considerations relevant to sentence —— No prior offending — Guarded prospects of rehabilitation — Deportation upon release — Utilitarian value of plea during COVID-19 pandemic — Delay — Remorse — Sentence of 11 years and 6 months, with non-parole period of 8 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Kristie Churchill with Ms Susanna Locke | Office of Public Prosecutions |
| For the Accused | Mr Jason Gullaci | Marshall Jovanovska Ralph |
HIS HONOUR:
Huai De Ooi, on 16 June 2021 in this Court, you pleaded guilty to the unlawful and dangerous act manslaughter of Umit Bolat (‘Mr Bolat’). You had previously been charged with murder.
On 10 September 2021, I heard the prosecution opening from Ms Churchill of counsel, submissions from Mr Gullaci of counsel on your behalf and further from Ms Churchill on sentence.
The maximum penalty to which you may be sentenced for the charge of manslaughter is 20 years imprisonment.[1] It is now my responsibility to sentence you for this offence.
[1]The maximum penalty for manslaughter increased to 25 years’ imprisonment for offences committed after 1 July 2020 (see Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic), ss 2(2) and 3).
Circumstances of Offending
At the time of the offending you were working as a contractor at fruit farms in the Shepparton area. You would organise fruit picking work for other migrants. Kosin Hariphong (‘Hariphong’) also lived in the Shepparton area and helped you with sourcing workers.
You lived at 215 Hill Road, Lemnos (‘the Lemnos property’), approximately 15 minutes north east of Shepparton with your girlfriend Hafizah Binti Ahmad (‘Ahmad’) and other migrants you had engaged in fruit picking, including Boon Ping Lee (‘Lee’), Periasamy Kannan (‘Kannan’), Mohammad Zakaria (‘Zakaria’), Aiman Bin Azzahar (‘Azzahar’), and Mohd Maraly Bin Abdullah (‘Abdullah’).
Lee Chen Kong (‘Kong’) resided at 20 Jubilee Lane, Ardmona with Pei Ching Bee.
Mr Bolat and his brother Erdinc, also known as Ernie, had both worked as fruit pickers in the Shepparton area. Around April 2018, Hariphong introduced you to Mr Bolat and Ernie. Ernie was apparently aware that Mr Bolat was buying drugs from you.
At the time of his death, Mr Bolat owned and drove a yellow Holden Commodore utility. Mr Bolat also owned an unregistered silver BMW (‘the silver BMW’) that he kept at the family home in Tatura. The prosecution alleged that in the weeks prior to Mr Bolat’s death, you and he agreed that he would pay off a drug debt by transferring ownership of the silver BMW to you. You dispute that Mr Bolat owed you money for drugs but do not dispute that Mr Bolat’s failure to transfer ownership of the BMW to you was a source of friction between the two of you.
About three or four weeks before Mr Bolat was killed, you asked Ernie to talk to him about transferring the silver BMW into your name and you were angry that it had not happened.
On Sunday 12 August 2018, you allowed Mr Bolat to stay at the Lemnos property and on Monday 13 August, he was there with you, Lee, Kannan, Zakaria, Abdullah and Ahmad.
Between 7:00 pm and 8:00 pm, you rang Hariphong and told him you no longer wanted Mr Bolat staying at the Lemnos property and asked Hariphong to come over to help remove him. As a result, Hariphong asked an associate of his, Tui Tunumafono (‘Tunumafono’) to drive him to the Lemnos property.
When Hariphong arrived, Mr Bolat was sitting on the couch watching TV. Lee was sitting at the kitchen table. Hariphong spoke briefly to you in the laundry then joined Lee and Tunumafono at the kitchen table where they talked amongst themselves.
You spoke with Mr Bolat on the couch and at some stage grabbed him by his jumper and a fight started. The prosecution assert that the fight started because of the dispute over ownership of the silver BMW. Your counsel argued the fight started because you wished to evict Mr Bolat from the Lemnos property due to his erratic behaviour. It was argued that you confronted Mr Bolat in a direct and aggressive fashion because you believed he might react violently to being evicted and because you believed Mr Bolat may have a gun with him, on the basis that you had seen him with one earlier in the day. It was submitted that you did not otherwise plan for what subsequently occurred.
Shortly after the fight started, Lee, Kannan, Hariphong and Tunumafono all joined in assaulting Mr Bolat. You then held a pocketknife to the back of Mr Bolat’s neck and made him sit on the floor of the dining room.
While Mr Bolat was on the ground, you struck his leg with a wooden stick a number of times and the stick broke. Another associate of yours, Wen Ping Aw Yang (‘Aw Yang’), arrived at the property at about 7:00 pm or 7:30 pm. He saw you hit Mr Bolat many times with a metal pole. He said you were yelling at Mr Bolat about his failure to transfer the silver BMW into your name.
Aw Yang saw a shotgun sitting on the dinner table and saw you pick it up and point it towards Mr Bolat. You apparently fired one shot at the ground between where Mr Bolat was and the dinner table, however there was no evidence of a shot in the floor of the home.
Kannan repeatedly hit Mr Bolat over the head with a dining chair and also hit him on the top of the head with a clothes iron. In addition, you stabbed Mr Bolat once above the knee with a pocketknife. Mr Bolat was calling for help throughout this assault. He was asking for more time to transfer the silver BMW. You said, “no more opportunities”.
You then told Lee to assault Mr Bolat. Lee used the metal pole to strike Mr Bolat’s legs. You told Lee to go outside and get some cable ties, which he did. You and Kannan then used them to tie Mr Bolat’s hands behind his back. Hariphong also punched Mr Bolat to the head a couple of times during the initial physical confrontation. Tunumafono was also involved in the initial fighting and also assaulted Mr Bolat.
At about 9:00 pm, Hariphong and Tunumafono left the property and at about 11:00 pm, Kong, who was at his home address, received a call from you asking him to come to the property, which he did. When Kong got there he saw Mr Bolat on the floor in the living room. His hands and legs were bound but he was still alive and talking. Mr Bolat was placed on an airbed to stop his blood going on the carpet.
You then told Kong to “go and hit him” and he did so. Kong said he hit Mr Bolat because was scared of you. Over the next two hours or so, Mr Bolat continued to be assaulted as he lay on a mattress on the lounge room floor.
At one stage, while you were wearing gloves, you and Kannan threw black metal gym weights on Mr Bolat’s head. You did this twice and Kannan did it on multiple occasions. It is this act which is the basis of the charge of manslaughter by unlawful and dangerous act. The prosecution have proceeded on the hearing of the plea on the basis that you did not have an intention to kill Mr Bolat or cause him really serious injury when this was done. On the other hand, as I understand it, your accomplice Kannan is alleged to have had that intention. He has absconded overseas and cannot be found.
Sometime between midnight and 2:00 am, you, with the assistance of others, placed a plastic bag on Mr Bolat’s head and secured it with tape. It is unclear whether Mr Bolat was still alive when this happened. It was submitted on your behalf that you believed Mr Bolat had already passed away at this time and were not attempting to asphyxiate him. Counsel for the prosecution observed that regardless of whether he was dead or alive, this was a final act of degradation towards Mr Bolat.
Later, you, Kannan and Kong wrapped Mr Bolat up with sheets and blankets. He was then placed near the door. You instructed Lee to clean up the blood. Lee also took Mr Bolat’s belongings, the wooden stick, and the airbed outside to be burnt.
At about 5:00 am on 14 August 2018, you and Lee put Mr Bolats’ body into the boot of your car. You also instructed Kannan and Kong to get rid of Mr Bolat’s car. At about 5:15 am, Kannan and Kong drove in convoy to Shepparton. Kannan drove Mr Bolat’s car, and Kong followed behind in his car. After Kannan left Mr Bolat’s car at the Shepparton Woolworths Supermarket car park, Kong drove him back to the Lemnos property and then went home.
At about 6:00 am, you and Lee drove towards Yarrawonga looking for a place to hide Mr Bolat’s body. You ultimately dumped the body in the Murray River near Cobram East. Throughout these events you seemed to have no misgivings or hesitation about what was occurring.
Mr Bolat was officially recorded as a missing person on 20 August 2018.
On 22 August 2018, you went to the Shepparton Police Station and provided a witness statement. In that statement you said that you were known as Arthur. You said that in June and July 2018, Mr Bolat was making false accusations of people having raped his ex-partner Emma Pridmore. You said you had arranged a room for Mr Bolat at 13 Sanderson Street, Shepparton with a mutual friend Jack. You said that from 24 July 2018, Mr Bolat would visit the Lemnos property every couple of days and that on 9 August 2018, Jack phoned you and told you he wanted Mr Bolat to move out. You said that Mr Bolat stayed at the Lemnos property on the Friday and Saturday. You said you had not seen Mr Bolat since the afternoon of 13 August 2021. You voluntarily provided police with a sample of your DNA while at the police station.
On the morning of 10 October 2018, Victoria Police members executed search warrants at the Lemnos property and at 20 Jubilee Lane. You, Lee and Kong were arrested and were interviewed by police over the following two days. Lee informed the police about the dumping of Mr Bolat’s body and the body was later recovered. Mr Bolat’s body was found wrapped in a doona and his head was covered with two plastic bags that were secured with tape. His hands were bound behind his back with tape, his ankles were bound together with cable ties, and fabric bands bound the left elbow to the left knee, and the right elbow to the right knee.
The pathologist found evidence of both blunt force and incised trauma to Mr Bolat’s body, which in combination may have caused or contributed to death. Plastic bag asphyxia was a possible cause of death if placed on Mr Bolat’s head while he was still alive. Toxicology revealed the presence of several clinically prescribed and illicit substances in Mr Bolat’s body.
When you were interviewed by police 10 and 11 October 2018 you made several admissions including:
(a) It was [Kannan] who caused the death of [Mr Bolat];
(b) It happened because [Mr Bolat] always visits them and disturbs them;
(c) They to punish [Mr Bolat] and then take him to the police station in the morning;
(d) He doesn’t know why but that Kannan then took the heavy thing and hit [Mr Bolat];
(e) That Mr Bolat did many things to annoy them and said that he wanted ‘fuck’ [Hariphong’s] wife;
(f) You said you took the knife but didn’t do anything with it;
(g) That when [Mr Bolat] sat down, Kannan straight away fly and took a chair and hit him;
(h) That they just hit [Mr Bolat] until night time, which was not a long time and then they tied him;
(i) That there were no problems, [Mr Bolat] could talk, and you told him, “you wait until the morning. OK? We let you go.”
(j) But then [Mr Bolat] started yelling and Kannan suddenly went crazy and took the gym thing and threw it at his head;
(k) After this [Mr Bolat] was lying down straight away, he not wake up but he could still breathe;
(l) [Mr Bolat] was then wrapped up in plastic bags and blankets;
(m) [Mr Bolat] was put in [Mr Bolat]’s car;
(n) Kannan took [Mr Bolat]’s car to the supermarket;
(o) Kannan disposed of [Mr Bolat]’s body but would not tell anyone where;
(p) You went to Cobram with Lee but did not have [Mr Bolat]’s body with you.
You denied any involvement in the disposal of Mr Bolat’s body.
You attempted to conceal your offending and misled investigating police officers. When you did make limited admissions in a record of interview, you significantly minimised your role. These matters are not to your credit. Whilst this is so, I accept your counsel’s submission that your attempts to distance yourself from the offending are also consistent with the behaviour of a person who was panicking after placing themselves in an unfamiliar and extremely serious situation.
I am told by the prosecutor that Lee, Kong, Hariphong and Tunumafono have all pleaded guilty to and been sentenced for offences relating to events surrounding Mr Bolat’s death.
As I earlier noted, Kannan fled Australia on 28 August 2018 and returned to Malaysia. At this stage, investigators have been unable to locate him.
The level of sustained violence perpetrated against Mr Bolat during this incident is repulsive and would shock the public consciousness. Whatever issue motivated the offending, be it that you wanted to evict Mr Bolat from the Lemnos property, that you wanted to know where the gun you had seen was, the transfer of the silver BMW, or drugs, the violence you and others committed against this man is so far out of proportion as to be utterly inexplicable. Over many years I have never ceased to be amazed at the lengths that people will go to inflict excessive violence on others. Your actions in this incident add to my despair. You had time to reflect on what was happening and desist but instead the violence continued over a protracted period of time until Mr Bolat’s almost inevitable death. He was then trussed up and his body dumped in the river.
Appropriately, your counsel has conceded that this is a very serious example of the offending to which you have pleaded guilty. I accept that you did not plan this incident but given the period of time over which it occurred, with ample time for reflection, spontaneity is a difficult claim for you to make.
Victim Impact Statements
On the hearing of the plea I received 9 victim statements as follows:
(a) Senol Bolat – mother of Mr Bolat
(b) Kubra Bolat – sister of Mr Bolat
(c) Ebru Bolat – daughter of Mr Bolat
(d) Sahara Bolat – daughter of Mr Bolat
(e) Aylah Bolat – daughter of Mr Bolat
(f) Ernie Bolat – brother of Mr Bolat
(g) Kader Bolat – sister in law of Mr Bolat
(h) Aleyna Bolat – daughter of Mr Bolat
(i) Merve Bolat – daughter of Mr Bolat
Several of these statements were read to the Court by Ms Locke of counsel and victim assistance person Ms Paice. The balance were simply filed. They all contain the eloquent description of the consequences of the death of a loved family member. These people carry the grief, loss and burden of the death of their son, brother, brother-in-law and father. These are now life-long feeling of loss and they are directly related to what you did in these inexplicable and violent acts.
Personal circumstances
Your personal circumstances are set out in the report of Mr Warren Simmonds, psychologist, which was prepared following a teleconference with you on 31 August 2021. The interesting feature of that report is that your history is unremarkable, in the sense that it does not explain why you committed the offending.
When this incident occurred you were 29 years of age and you are now 32. You were born and raised by your family in Malaysia and educated to about a year 7 level before commencing work. You initially worked in an aluminium factory, as well as selling glassware and DVDs, before working in the family business selling vegetables wholesale. Later, you and other family members came to Australia in search for work. Your work here has been in fruit picking and as a mechanic. You were previously married in Malaysia although that relationship was brief. You have one daughter from that relationship, who is currently 10 years old. She resides in Malaysia with your mother. In the future, you may have some need for assistance with your use of methylamphetamine and possibly alcohol.
You are without prior convictions, which makes your conduct even more difficult to understand. Your counsel submitted on your behalf that the offending was out of character given that you have no criminal history. The fact that the offending was prolonged, occurred in company and was so violent necessarily reflects very poorly on your character. However, I accept that you are not a person who has previously been convicted of violent crimes and then continued to act in a violent way.
You have been remanded in custody since early October 2018. Like all prisoners, you have been subject to relatively significant restrictions over the last 18 months due to the COVID-19 pandemic. I note that this very day a number of cases of COVID-19 are reported in the Victorian prison system, 5 at the Metropolitan Remand Centre and 1 at the Melbourne Assessment Prison. You have completed a number of courses and worked while in custody. I accept that you have tried to use your time on remand productively.
Upon your release from custody it is expected that you will be deported back to Malaysia which is the outcome you desire.
Your counsel asserted that your prospects of rehabilitation are positive but as Mr Simmonds reports, that may depend on your future drug use and its effect on you if you do not have it under control. I am guarded about your prospects of rehabilitation.
Mitigating circumstances
Plea of guilty
A matter to be taken into account is your plea of guilty. Understandably, you were originally charged with murder but the Director of Public Prosecutions was willing to accept a plea of guilty to manslaughter in lieu of that charge.
There is no doubt of the significant utilitarian value of your plea of guilty. This is a case where there was a charge of murder laid against you that, on trial, would not have been without merit. The prosecution accepted your plea to manslaughter. That was, in my opinion, to your considerable advantage. Nevertheless, as the prosecutor has accepted, the principle enunciated by the Court of Appeal in Worboyes v The Queen [2021] VSCA 169 to the following effect, is apposite:[2]
For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.
[2][2021] VSCA 169, [39] (Priest, Kaye and Forrest JJA).
The mystery in the quoted passage is the meaning of the words “all other things being equal” which, of course, they never are. Nevertheless, I proceed on the basis that the utilitarian value of the plea, which is always there regardless of the subjective features of the case, is magnified to some degree by the fact that it is entered during a pandemic.
Remorse
So far as remorse is concerned, the assertion that it exists is based on your plea of guilty and what you said to Mr Simmonds, namely that you feel bad that Mr Bolat died and the entire event is something that should not have happened. Counsel for the prosecution argued that given the timing of your plea, any expression of contrition for the offending occurred very late in proceedings. I would accept that you feel some regret for what occurred but it may be sufficient for me to say that this regret, to the extent that it considers Mr Bolat and his family, is somewhat measured and sparse in its expression.
Delay
This matter has hung over your head since August 2018. I accept that this delay would have caused you a degree of anxiety and uncertainty.[3]
[3]Rodriguez v. DPP (Cth) [2013] VSCA 216, [36] (Warren CJ and Redlich JA).
Conclusion
Current sentencing practices are one matter that inform the proper sentence to be imposed on you, although they are not to be regarded as a determinative factor.[4] Manslaughter is an offence committed in a wide variety of circumstances and each case must be decided on its own facts.
[4]DPP v Dalgliesh (a pseudonym) [2017] HCA 41, [68] (Kiefel CJ, Bell and Keane JJ).
After consideration of the circumstances and issues I have described, in my view the appropriate sentence for the charge of manslaughter in this case is 11 years and 6 months imprisonment. That is the sentence I will impose on you.
I fix a period of 8 years and 6 months to be served before you become eligible to apply for release on parole.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to this charge but had stood your trial on the charge of manslaughter and been found guilty by a jury, the sentence I would have imposed on you would have been 14 years imprisonment with minimum term of 11 years.
I declare that the pre-sentence detention is a period of 1073 days and I direct that it be recorded in the records of the Court and treated as time already served.
I will make the disposal order and two forfeiture orders sought by the prosecution consented to by you.
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