Director of Public Prosecutions v Timoteo
[2021] VSC 312
•15 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0200
S ECR 2020 0201
S ECR 2020 0202
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN TIMOTEO |
| JOSAIA BOLALAILAI |
| JONATHAN FUATAVAI |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13, 14 May 2021 |
DATE OF SENTENCE: | 15 June 2021 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Timoteo & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 312 |
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CRIMINAL LAW – Sentence – Common Assault – Causing serious injury intentionally - Manslaughter by unlawful and dangerous act – Attack by 2 co-offenders against single victim – Series of attacks by 3 co-offenders against 4 victims – Complicity – Attacks in broad daylight on public streets – Offenders armed with weapons – Young offenders – Accused Timoteo sentenced to 11 years and 10 months’ imprisonment with a non-parole period of 8 years and 9 months – Accused Bolalailai sentenced to 11 years and 2 months’ imprisonment with a non-parole period of 8 years and 2 months – Accused Fuatavai sentenced to 10 years and 1 month’s imprisonment with a non-parole period of 7 years and 4 months – Crimes Act 1958 (Vic), ss 5, 16, 320, 323 - Sentencing Act 1991 (Vic), ss 1(a), 3, 5(3), 6AAA, 18(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton | Office of Public Prosecutions |
| For the Accused Timoteo | Mr J Desmond | Emma Turnbull Lawyers |
| For the Accused Bolalailai | Ms C Lynch | Papa Hughes Lawyers |
| For the Accused Fuatavai | Mr M Thomas with Mr M Weinman | Furstenberg Law |
IntroductionA.
Broad overviewA.1 [1]
[1]The parties were informed on 28 May 2021 that the sentences were ready to be delivered. As COVID-19 restrictions were announced that day, the original date for delivery was fixed for 7 June 2021. With the extension of restrictions, the date for delivery was extended to 15 June 2021.
Nathan Timoteo, Josaia Bolalailai, and Jonathan Fuatavai, you have each pleaded guilty to manslaughter, to causing serious injury intentionally, and to common assault.[2] By doing so, you have accepted responsibility for killing Ilaijah Kuru (“Kuru”), for seriously injuring Barry Tusa (“Tusa”) without a lawful excuse to do so, and for assaulting Isaac Tagatanuu (“Tagatanuu”) and Peter Tuiliau (“Tuiliau”) (collectively, “the Victims”).
[2]Manslaughter and common assault are offences under the common law, whereas the offence of causing serious injury intentionally is a crime under the Crimes Act 1958 (Vic), s 16.
There were 3 separate sets of incidents that occurred on 20 February 2020, the third of which occurred shortly after the second.[3] All 3 sets of incidents were videoed. Although the videos did not catch every detail of what occurred, the evidence demonstrated beyond any doubt that each of you involved yourselves in acts committed in broad daylight in public places that were violent, cowardly, senseless and despicable.
[3]Jonathan Fuatavai, you were not involved in the first incident.
Not only did these acts cause harm and injuries to the Victims who were not known to you, including fatal injuries to 1 of them, they subjected many others who happened to be passing by to horrific and traumatic scenes.
Such conduct must be denounced by the court in the strongest of terms.
The Victims were all young men. Kuru was 24 years old at the time of his death. He was born in Paddington, Sydney. He grew up both in Australia and New Zealand, having spent his last 13 or so years in Australia. He had a partner with whom he was very close, and had 2 children for whom he was a caring parent. He worked at Linfox as a forklift driver, as did his 2 friends Tusa and Tuiliau. They were 28 and 31 years of age respectively when these incidents occurred. Tagatanuu was also a forklift driver and was 28 years old at the relevant time. The Victims all played rugby together.
ChargesA.2
You were each charged with murder and assault-related offences on 21 February 2020. Subsequently, you each agreed to plead guilty to manslaughter, as well as common assault and causing serious injury intentionally.[4] Mr Fuatavai, on 4 February 2021 you were arraigned and formally pleaded guilty to 1 charge of manslaughter, 1 charge of causing serious injury intentionally, and 2 charges of common assault. Mr Bolalailai, on the same day you were arraigned and formally pleaded guilty to 1 charge of manslaughter, 1 charge of causing serious injury intentionally, and 3 charges of common assault. Mr Timoteo, on 11 February 2021 you were arraigned and formally pleaded guilty to 1 charge of manslaughter, 1 charge of causing serious injury intentionally, and 3 charges of common assault.
[4]Mr Bolalailai, you offered to plead guilty to manslaughter on 13 August 2020, which is a further mitigating factor. Cross-examinations were conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic) from 16 to 20 November 2020. The prosecution accepted that the evidence adduced during the examinations was useful in identifying the difference between the applicability of murder and manslaughter charges. After the Crown indicated a willingness to withdraw the murder charge against each of you, you all agreed to a settlement on the basis that it included guilty pleas to manslaughter.
At the time of the offending, the maximum penalty for manslaughter was 20 years’ imprisonment, the maximum penalty for causing serious injury intentionally was 20 years’ imprisonment, and the maximum penalty for common assault was 5 years’ imprisonment.[5] By the prosecution’s acceptance of your pleas in relation to the manslaughter charges, it has acknowledged that you lacked an intent to kill Kuru or to cause him really serious injury.
[5]Crimes Act, ss 5, 16, 320.
With respect to each of the offences, liability is put by the prosecution both primarily and on a complicity basis. As to the former, the prosecution submits that each of you is liable for your own actions. As to the latter, it is contended that you acted pursuant to an agreement, arrangement or understanding to attack the Victims and so you are liable for the actions of each other.[6]
Circumstances of the offencesB.
The first incidentsB.1
[6]See Crimes Act, s 323. As this was not really in issue (also see par 71 below), there is no need to consider the issues raised in Falzon v The Queen [2019] VSCA 294, [18] (T Forrest JA, with whom Maxwell P and Priest JA agreed); R v Semaan (No 7) (2016) 258 A Crim R 338, 341-343 [7]-[15] (Beale J).
At about 3 pm on Thursday 20 February 2020, Tagatanuu was driving from his workplace to the home of Tusa in St Albans. After he turned off the Western Ring Road onto Sunshine Avenue, he turned left into Biggs Street. He heard a car engine rev loudly, and saw a white tradesman’s ute tailgating him and getting too close to his boot. Mr Timoteo, you were driving the ute, and Mr Bolalailai you were riding in the passenger seat.
As Tagatanuu continued to drive, Mr Timoteo you pulled alongside him on his right hand side. Mr Bolalailai, you produced a black and red box cutter knife and held it up and threatened Tagatanuu with it by making a stabbing motion toward Tagatanuu. The court was informed that you had no memory of holding the knife, but that you took no issue with the prosecution’s opening for the purposes of the plea.
Tagatanuu turned right into Walter Street in an attempt to evade the 2 of you. He parked his car on the left hand side of the street, unaware that he was parking directly outside the home address of your father, Mr Timoteo, which was also the destination of yourself and Mr Bolalailai.
Mr Timoteo, you parked the ute in a driveway directly in front of Tagatanuu’s car. Tagatanuu got out of his car and walked to the rear of it and stood near the boot. The 2 of you, Mr Timoteo and Mr Bolalailai, approached Tagatanuu. Mr Timoteo, you said “You’re a cheeky cunt”, before commencing an assault on Tagatanuu. Mr Bolalailai, you joined in shortly after. A number of blows were inflicted, then Tagatanuu was thrown to the ground, and you both proceeded to kick and punch him multiple times. While Tagatanuu was on the ground, 1 of you said “I’m going to fucking stab you, cunt”. Counsel for the prosecution made no submissions as to which of the 2 of you had made this threat, and accepted that it could not be proved against either of you.[7]
[7]In these circumstances, this will not be treated as an aggravating circumstance against either of you.
While this assault was ongoing, 2 bystanders, Mario and Frank Cardamone, approached and attempted to intervene and calm the situation. Mr Timoteo, you struck Mario Cardamone and knocked him off his feet, telling him, “Get the fuck out – it’s none of your business”. You later struck him again while he was standing near Tagatanuu’s car.
During the assault, Mr Bolalailai you got into the ute and drove away before stopping the car and returning to participate further.
During these events, a neighbour, Christine Wilson (“Wilson”), came out of her house and told the 2 of you to “leave him alone”. Mr Timoteo, you turned to her and said “fucking mole”, before getting into your silver BMW sedan, which you had parked at that location earlier that day. As you drove away, you said to Tagatanuu, “This is not over”. In the meantime, Mr Bolalailai you got into the white ute and drove that away.
The assault on Tagatanuu lasted for a significant period of time, approximately 7½ minutes, though the video showed that Tagatanuu was physically assaulted for only some of this time. At 3.30 pm, the police arrived, having been called by Wilson. They spoke to Wilson and Tagatanuu. Tagatanuu’s clothing was ripped, and his jumper and high-visibility vest were torn. He returned to his car only to discover that his wallet and mobile telephone had been taken. He later attended at the police station to make a statement.
It was on the basis of this assault that the 2 of you, Mr Timoteo and Mr Bolalailai, pleaded guilty to 1 charge of common assault. Although at times Mr Timoteo, you appeared to be the primary aggressor, Mr Bolalailai, you were more than willing to join in and at times continued the physical assault while Mr Timoteo was distracted by others.
The second incidentsB.2
At around 4 pm, after leaving the police station, Tagatanuu arrived at Tusa’s house. He spoke to Tusa’s wife while he waited for Tusa, who arrived a short time later with Tuiliau and Kuru. Tagatanuu told his friends what had happened, and they tried to persuade him to go to the hospital with them because his face was swollen and bleeding. They all left Tusa’s home soon after.
While the Victims were driving, Tagatanuu showed the others the street where he had been assaulted. He described to his friends the 2 of you, Mr Timoteo and Mr Bolalailai, and the vehicles you had driven.
A short time later, the Victims were driving south along Sunshine Avenue heading towards Sunshine Hospital. When they got to the vicinity of 227 Sunshine Avenue, St Albans, Tagatanuu saw the 2 of you, Mr Timoteo and Mr Bolalailai, standing next to the silver BMW sedan outside 227 Sunshine Avenue. Mr Fuatavai, you were standing near them.
At that point of Sunshine Avenue there is a dual carriageway, with 2 main lanes for travel in each direction, a grass-covered centre median strip, and 2 service lanes which are separated from the main carriageway by 2 more grass-covered median strips.
After Tagatanuu had spotted you, Tuiliau did a U-turn on Sunshine Avenue and parked on the side of the road a few houses away.
The Victims got out of the car and approached the front of the house at 227 Sunshine Avenue. Tagatanuu said “Can I have my phone back please?” Mr Timoteo, at this point you became angry, picked up a pick-axe and began chasing the Victims. Mr Bolalailai and Mr Fuatavai, you both joined in the chase. Mr Fuatavai, you were at this point armed with a metal pole.
The Victims ran north along Sunshine Avenue before turning left into Fox Street. The 3 of you ran after them, following closely. Mr Fuatavai, you were in the lead and were carrying the metal pole. Mr Timoteo, you were next in line, and were carrying a pick-axe. Mr Bolalailai, you were third in line. It is not clear whether you were carrying anything.
As the Victims turned left, Kuru, Tagatanuu and Tuiliau stayed on the left hand footpath and ran further along Fox Street. Mr Fuatavai, you pursued them. Tusa ran to the right hand side of Fox Street. Mr Timoteo and Mr Bolalailai, you pursued him.
Mr Bolalailai, you grabbed hold of the pick-axe which was being carried by Mr Timoteo. You ran towards Tusa, who stumbled and fell to the ground. For the next few minutes, the 3 of you perpetrated a continuous assault on Tusa. Mr Bolalailai, you punched Tusa and then kicked him repeatedly in the head and body. Mr Timoteo, you retrieved the pick-axe from Mr Bolalailai and used it in an overhead motion and struck Tusa with a blow to the knee area. You also used the pick-axe to threaten Kuru, Tagatanuu and Tuiliau, who had returned to try to protect Tusa. You started to swing the pick-axe towards Tusa’s head when Tuiliau yelled, “You don’t have to do that”. You also swung the pick-axe at Tuiliau.
Mr Fuatavai, you used the metal pole in an overhead motion to strike Tusa several times to the body. You disposed of the metal pole, and then punched Tusa several times in the head while he was lying on the ground. You ignored a woman who tried to intervene and prevent a further assault.
Tusa was later discovered to have a fractured patella and puncture wound to his knee, as well as other injuries. Describing the incident, Tusa said that while he was on the ground, “The big guy [was] swinging the [pick-axe] at me. I looked up and saw the [pick-axe] above his head and he was taking a swing at me. My main concern was not to get hit with the [pick-axe] in the head, as I thought it would kill me. [Another] was hitting me with the stick over and over and he kicked me to the head. That kick made me really dizzy and I may have blacked out for a bit. I am not sure how many blows I took but I was on the ground for a while and all 3 were laying into me. I remember being punched and kicked heaps of times.”
In addition, Tuiliau was punched to the ground by you, Mr Timoteo and threatened with the pick-axe.
It was on the basis of the assault on Tusa that you have each pleaded guilty to causing serious injury intentionally.
After a few minutes, the 3 of you returned to the garage of 227 Sunshine Avenue. Mr Timoteo, you were the last to return home, and were still carrying the pick-axe.
Following the assault, a neighbour brought Tusa inside their house because he was injured. Tusa remained in the house for a few minutes before leaving to find his friends.
The third incidentsB.3
While Tusa was inside the house, his friends walked back towards Sunshine Avenue from Fox Street to get to the car they had arrived in, which was still parked on Sunshine Avenue, just past 227 Sunshine Avenue. Their route necessarily took them past 227 Sunshine Avenue. As they walked to their car, the 3 of you came out of the house again. Mr Timoteo, at this point you were armed with a long piece of white wood. Mr Bolalailai, you were armed with the pick-axe. Mr Fuatavai, you were armed with a weapon resembling the handle of an axe, or something similar.
Mr Timoteo, you swung the long piece of wood at Tuiliau. To reach Tuiliau, you had to push aside a woman who was attempting to stop the assault.
Mr Bolalailai and Mr Fuatavai, you then chased Tagatanuu and Kuru a distance of approximately 37 metres across Sunshine Avenue towards St Pauls Catholic School, where you caught up with Kuru and began assaulting him. Kuru fell to the ground. Mr Bolalailai, you continued hitting Kuru with your weapon while he was on the ground outside the school.
Mr Timoteo, you followed some seconds after your co-accused, reaching Kuru when he was already lying on the ground. You used a double-handed overhead motion to strike towards Kuru at least 4 times while he was lying still on the ground. You used such force that the piece of wood broke in 2 following the first strike. While there is no question that you intended to hit Kuru while he was lying defenceless on the ground, it is not clear from the evidence whether the first strike that caused the piece of wood to break connected with Kuru or hit the ground next to him.
Mr Bolalailai, you struck Kuru to the head region with the pick-axe.
Mr Fuatavai, you remained in the vicinity of the assault, armed with the axe handle. Once Kuru was lying on the ground, there was no evidence of you striking Kuru. The axe handle you were carrying appears to have broken in 2 at that location, as half of it was found in that area and you carried the other half back across the road.
Mr Bolalailai, while the assault was in process, you looked up towards the centre of the road, and started running, still holding the pick-axe. Soon after, Mr Timoteo and Mr Fuatavai, the 2 of you followed at a walking pace, both still armed.
Kuru remained prone on the ground and appeared to be unconscious. From that time, he did not move. He was later found in that position by bystanders, police and the ambulance service. He was treated at the scene but died without regaining consciousness.
As a result, you have each pleaded guilty to manslaughter.
Mr Bolalailai, you ran to the centre median strip, still armed, where you caught up to Tuiliau and Tagatanuu. You threatened Tuiliau and Tagatanuu with the pick-axe, causing them to retreat along the median strip. Mr Timoteo and Mr Fuatavai, you both followed Mr Bolalailai, still armed. Mr Fuatavai, you threw a piece of wood at Tuiliau, but it missed.
It is on the basis of the totality of your behaviour against Tagatanuu and Tuiliau in the vicinity of Sunshine Avenue that you have each pleaded guilty to 2 counts of common assault.
Arrests and interviewsB.4
The 3 of you retreated to 227 Sunshine Avenue. After the police and ambulance officers arrived, the 3 of you were arrested.
Mr Timoteo, you were arrested in the front garden of 227 Sunshine Avenue.
Mr Bolalailai, you were arrested outside 229 Sunshine Avenue. When you were arrested you were wearing different clothing. You had removed a pair of “arm warmers” that you had been wearing throughout the incidents in Sunshine Avenue, and had hidden them beneath a car that was parked in the driveway of 227 Sunshine Avenue. They were found there by a crime scene examiner. You had also put on a grey windcheater, having been bare chested during the attacks, and had removed a long pair of blue work pants and were wearing shorts.
Mr Fuatavai, you were arrested between 227 and 229 Sunshine Avenue. As you were being arrested you repeatedly said that you did not know the Victims. You continued, “Look we’re trying to unload our shit yeah. I don’t know these guys are coming right ... They came up and they started beating me up.”
The 3 of you were taken to the police station, where you were later questioned by police. Mr Timoteo, during your interview you admitted being part of the initial confrontation with Tagatanuu. You described that incident as a heated argument, where a few punches were thrown by each person but you falsely said that afterwards you shook hands. You also admitted to being part of the later incidents on Sunshine Avenue, which you said started when a group of 5 males came to your house and that you “blacked out” when you became angry.
Mr Bolalailai, during your interview you untruthfully denied any knowledge of the earlier incident with Tagatanuu. When asked about the incidents on Sunshine Avenue, you said “I was in the garage when everything happened. I came out and my brother-in-law, my sister's boyfriend, was on the floor and was getting rushed by these guys, so I jumped in and pushed a few off, just to get him up.” When asked what happened next, you said “We just chased them around the corner, they all (sic) around the corner and they kept coming back.” You lied in denying the use of any weapons during the incidents.
Mr Fuatavai, you exercised your right to answer “no comment” during your interview.
Post mortem examination of Kuru and injuries to the remaining VictimsB.5
On 21 February 2020, a post mortem examination of Kuru was conducted at the Victorian Institute of Forensic Medicine by forensic pathologist Dr Melanie Archer.
Dr Archer concluded that Kuru died from head injuries. The autopsy discovered that Kuru had suffered bruising and lacerations concentrated around the head region and especially involving the scalp and face. He had multiple large bruises over both sides of his scalp and over the front and back of the scalp.[8] This represented blunt force trauma in multiple places. The scalp was torn down to the skull bone at the back of the head in 2 places. He had an injury to his mouth comprising bruising and abrasions.
[8]Dr Archer described the bruises as superficial (in the sense that there was no skull fracture) but large.
In relation to the other Victims, Tagatanuu received erythema[9] to the left side of the head, the left side of the face and the nose area, as well as abrasions to his left ear and bruising to his left cheek. He also received abrasions and bruising to the right hand, wrist and elbow, and abrasions and bruising to the left hand.
[9]That is, abnormal redness of the skin.
Tusa was taken to hospital for treatment. He was found to have a fractured patella, a puncture wound to his right knee, severe bruising to his left inner arm, a bruised left ear, and an abrasion injury on his left hip and other areas of his body.
Tuiliau received grazes and abrasions to the back and upper right shoulder, linear wounds to the right elbow and left forearm area, and a wound to the upper right thigh.
Nature and gravity of the offencesC.
First assault on TagatanuuC.1
Mr Timoteo and Mr Bolalailai, the prosecution submitted that the first assault involving yourselves and Tagatanuu was a serious example of the offence, and that both the objective gravity of the offending and your own moral culpability should be assessed as being high. I accept that submission.
There were a number of aggravating factors to this assault. The attack was prolonged, lasting over 7½ minutes, and involved each of you punching and kicking Tagatanuu multiple times. This occurred both while he was standing, and when he had fallen to the ground and was offering little resistance other than merely trying to protect himself from the repeated punches and kicks. The attack occurred in broad daylight and in a public street in front of others. You each had numerous opportunities to desist, but instead continued the attack. Tagatanuu attempted at a number of points to disengage or de-escalate the conflict. Passers-by and neighbours also attempted to intervene and prevent further violence, but they were repelled with threats and violence.
The video demonstrated the brazenness and brutality of the attack on Tagatanuu by both of you.[10] There was nothing material to distinguish your moral culpability in relation to these events.
Assaults on Tagatanuu and Tuiliau, and causing serious injury intentionally to TusaC.2
[10]It is noted that some aspects of the circumstances surrounding the assaults were referred to by the prosecution for context only.
The prosecution submitted that the assaults against Tagatanuu and Tuiliau by the 3 of you, which occurred during the second set of incidents, were serious examples of this offence, and that your moral culpability and the objective gravity of the assaults should be assessed as high. They also submitted your moral culpability in intentionally causing serious injury to Tusa was high, but accepted that the injury to Tusa was at the lower end of what could be considered serious; and thus that the objective gravity of this charge should be assessed as being below mid-range.
Aggravating factors highlighted by the prosecution with respect to these offences included:
(1)The attacks occurred in broad daylight on a public street.
(2)The attacks were clearly terrifying to people who were nearby.
(3)The Victims were plainly retreating.
(4)The attacks continued despite the protestations of women who were trying to intervene, with 1 of the women being pushed aside to enable an attack to continue.
(5)You were each armed at various stages of the incidents.
(6)The strike to Tusa’s knee with the pick-axe, which caused the serious injury, occurred while he was already lying on the ground.
(7)Mr Fuatavai, the video shows you in a frenzy, repeatedly striking and kicking Tusa while he is on the ground.
(8)Mr Timoteo, you appear at 1 point in the video to swing the pick-axe towards Tusa’s head. Tuiliau yelled, “You don’t have to do that” in an attempt to stop you, and you responded by swinging the pick-axe towards him.
Mr Fuatavai, your counsel made submissions that the overall seriousness of the offending was mitigated because there was no planning between the 3 of you, but that rather the offending was a spontaneous response to the attendance of the Victims at 227 Sunshine Avenue. The prosecution accepted the offending was almost spontaneous, and that there was limited opportunity for planning.
Mr Bolalailai, your counsel made similar submissions with regard to spontaneity and planning, and further submitted that the seriousness of the offending was mitigated by the fact that the weapons used were readily accessible. The prosecution accepted that the weapons used by the 3 of you were “to hand”, having been selected from items inside the garage or in the rubbish skip in the immediate vicinity.
There was some material which suggested that the Victims acted in a threatening manner when they first approached the 3 of you at 227 Sunshine Avenue. The evidence before the court meant it was not possible to conclude beyond reasonable doubt that there was no provocation. Equally, defence counsel accepted that there was not sufficient evidence to conclude on the balance of probabilities that you were provoked, and thus I could not treat provocation as a mitigating factor. I am satisfied that this is the proper position on the evidence, but I note that the relevance of any initial provocation would be minimal at its highest. It is clear from the video evidence that the Victims retreated from the 3 of you by running around the corner into Fox Street, and that the 3 of you chased and continued to pursue them and, once you had caught up to Tusa, continued the assault. You had the opportunity when the Victims were running from you to desist, and failed to take it.[11]
[11]For completeness, Mr Bolalailai your counsel was instructed that you had a misconceived paranoia about what occurred on 20 February 2020 in relation to these incidents, compounded by the use of alcohol and cannabis. However, she correctly disavowed that this could be the basis of any provocation submission.
In light of the above matters, and having viewed the video evidence carefully, I conclude that the moral culpability of the 3 of you was high in the attacks on Tusa, Tuiliau and Tagatanuu, and that the objective gravity of the assaults on Tuiliau and Tagatanuu forming the basis of the relevant offences of common assault was also high. I accept the position agreed by counsel that the objective gravity of the serious injury intentionally caused to Tusa was below the mid-range. I consider the moral culpability of each of you is indistinguishable.
Manslaughter of KuruC.3
The prosecution submitted that the manslaughter of Kuru was a serious example of the offence. To demonstrate the high objective gravity of the offending, it was noted that:
(1)The crime was committed in broad daylight on a public street.
(2)The crime was committed with multiple weapons, and while each of you was armed.
(3)The manslaughter occurred during a prolonged attack which lasted minutes.[12]
(4)The attack was against an apparently non-violent victim, who was clearly retreating and who was separated from his friends.
(5)The attack involved strikes to Kuru while he was standing, and continued with multiple strikes while he was on the ground.
[12]The actual physical attack that resulted in Kuru’s death lasted about 15 seconds.
The prosecution also submitted that the moral culpability of the offending was high. They noted that Mr Timoteo and Mr Bolalailai, you had previously engaged in a prolonged assault on Tagatanuu, and that the 3 of you had only shortly before the death of Kuru been involved in riotous behaviour which had resulted in the crimes of causing serious injury intentionally to Tusa and common assaults on Tagatanuu and Tuiliau. There was a clear break between the earlier and later offending. On this basis it was submitted that the preceding crimes should not be taken in this case to increase the seriousness of the manslaughter charge.
You will be sentenced separately for these crimes. Further, you should not be punished twice for the same offending.[13] However, it is plain there were time intervals between the incidents in which each of you had a chance to desist from your offending, and the fact that you did not desist is a factor which increases the moral culpability of the offending.
[13]Azzopardi v The Queen (2011) 35 VR 43, 51-52 [26]-[27] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
Your counsel submitted that various factors lowered the seriousness of the offending. The prosecution accepted a number of these submissions, including that:
(1)There was a limited opportunity for planning prior to the offending and little evidence of planning.
(2)The offending was almost spontaneous.
(3)The weapons used were “to hand”, having been selected from items inside the garage or in the rubbish skip immediately outside.
The prosecution also accepted that the cause of death of Kuru was multi-factorial. The autopsy report concluded that the cause of death was head injuries sustained by a man with a suspected pre-vulnerability due to the low placement of his cerebellar tonsils, which are located underneath the back part of the brain.[14] Dr Archer concluded that Kuru may have suffered from an abnormality called an Arnold Chiari I malformation, which causes the cerebellar tonsils to protrude through the foramen magnum, which is the hole at the base of the skull where the brainstem exits the skull. Particularly in the setting of head trauma, protruding cerebellar tonsils can compress the brainstem, and cause the heartbeat and breathing to stop. Dr Archer also noted that Kuru had further pre-vulnerabilities for sudden death in the form of an enlarged heart, with severe ischaemic and hypertensive heart disease. Mr Timoteo, your counsel submitted that the expert evidence of the trauma demonstrated that “even if it wasn’t intended”, the level of force to the deceased’s head was moderated.
[14]Other trauma included deep bruising underlying the philtrum, deep bruising to the posterior left shoulder and fractures to 2 of Kuru’s ribs (non-displaced).
Notwithstanding this, your pleas of guilty to manslaughter acknowledge that the attack on Kuru involved each of you consciously, voluntarily and deliberately engaging in an unlawful and dangerous act that was a substantial and operating cause of his death.[15]
[15]To adopt the language used by your counsel, Mr Fuatavai. See also R v Aidid (2010) 25 VR 593, 602-603 [62] (Ashley JA, with whom Weinberg JA and Coghlan AJA agreed); R v Lam (2008) 185 A Crim R 453, 469 [64] (Buchanan, Vincent and Kellam JJA); Royall v The Queen (1991) 175 CLR 378, 411.6 (Deane and Dawson JJ).
Mr Timoteo, your counsel further submitted that the fact that you reached Kuru after he had already been beaten to the ground was a mitigating factor which marginally reduced the seriousness of your offending, on the basis that your pursuit of Kuru was slower and that without the intervention of your co-offenders Kuru might have gotten away.[16] In my view, any reduction in seriousness which might have followed from your slower pursuit is insignificant when the incident is viewed as a whole. The video evidence shows Kuru was already lying on the ground when you reached him, and was clearly not a threat, and that despite this you proceeded to strike him repeatedly with a weapon. This conduct was brutal and sickening, and no less culpable than a scenario involving the striking commencing when Kuru was on his feet. Again, I consider that the moral culpability of each of you cannot be distinguished, with a marginal exception in relation to you, Mr Fuatavai ,which I will explain shortly.
[16]Although your counsel sought to distinguish your role, in making this submission he accepted that you were complicit in the attack.
Your counsel also submitted, Mr Timoteo, that Kuru’s injuries were not consistent with having been struck to the head with a terrible amount of force, and could be contrasted with a man beaten to death with heavy blunt force trauma. The prosecution submitted the objective gravity of the offence of manslaughter was not affected by this contrast. It sought to put this submission in context by noting that if Kuru had indeed suffered more serious head injuries, such as a fractured skull, the charge of murder might have been maintained. While I accept the factual basis of defence counsel’s submissions is supported by the evidence and must be taken into account, the injuries sustained were serious and as a result of a dangerous and unlawful act. In short, I do not consider this to have a significant impact on the assessment of the gravity of the offending. By your pleas, each of you admit that you were involved in acts of violence that would cause a reasonable person to conclude that those acts carried with them the appreciable risk of serious injury.[17]
[17]R v Klamo (2008) 18 VR 644, 660 [67] (Maxwell P, with whom Vincent JA agreed), 664 [95] (Neave JA); Wilson v The Queen (1992) 174 CLR 313, 325.4, 333.3 (Mason CJ, Toohey, Gaudron and McHugh JJ).
Mr Fuatavai, there was no evidence that you struck Kuru once he had fallen to the ground. For this reason, your moral culpability for the manslaughter was marginally lower than that of your co-offenders (although the evidence is clear that you stood by and allowed your co-offenders to continue striking him without taking any exception to what was occurring).
Concluding comments on offendingC.4
Throughout the hearing, Mr Timoteo, your counsel described the offending variously as “unwarranted”, “horrific”, “graphic and disturbing” and, in relation to Kuru’s death, “a bad example of manslaughter”. Your counsel also described the video of the killing of Kuru as “horrendous and very graphic”. I agree with these sensible concessions. The characterisations are applicable to the offending by the 3 of you.
In view of the nature of your offending, denunciation and just punishment are important factors which must inform any sentence. Additionally, general deterrence is an important consideration. Other young men who might be tempted to engage in this manner of shocking violence must be shown the serious consequences such actions might have, not only for their victims but for themselves as well.
Impact on victimsD.
The impact you had on the Victims has already been touched upon. They were not the only people to suffer as a result of your crimes. The impact of the manslaughter you each committed has been profound and enduring. In victim impact statements read to the court, friends and family of Kuru spoke in terms of their severe loss, their devastation and their overwhelming sense of grief. It is clear that they will never completely recover from what has occurred. The statements were striking in the love that the writers felt for Kuru, and the devastation they felt at the senseless loss of his life.[18]
[18]Nine victim impact statements were read in court by and on behalf of the friends and family of Ilaijah Kuru.
Riana Haa, the partner of Kuru, with whom he had 2 children, spoke of the day he died, the day she had to identify the body, and the day of the funeral. She described these as the worst days of her life. As a consequence of Kuru’s death, she and their children had to move back to New Zealand. Kuru had been the main earner in the family, and without him they were unable to support themselves in Australia. She said that she had lost 20 kilos because her grief had left her unable to eat. She spoke of her distress in being bombarded by the media for a story, and the way her grief had affected her ability to look after her children. In various ways, she demonstrated what a loving and close relationship she and Kuru had had. She said that since Kuru’s death, her life had been hell, and would never be the same, but expressed that she would try to be strong for the children they had brought into the world together.
Lisa Maxwell, Kuru’s mother, said the day she lost her son was the hardest day of her life. She spoke of needing to explain to her children and grandchildren that their brother and their father would not be coming home. She said that what she saw when she had to identify Kuru’s body will haunt her forever. She said that because Riana and her children had had to relocate to New Zealand, she had lost not only her son but his entire family. She said that the loss of Kuru had caused the separation of her marriage, and had caused her to neglect her 2 younger children because of the hurt and despair she felt.
Teariki Maxwell, the husband of Lisa Maxwell, said that having to deal with the loss of their son had been the hardest thing that he had had to do in his life, and that his death had completely changed the dynamics of his family’s future. He said that he was the first to deliver the news to his wife, and described those conversations as the hardest moments of his life. He spoke of how he had worked with Kuru at Linfox, and that he was dearly missed at the worksite they had shared. He spoke of missing many days at work, and of how first his leave entitlements and then his savings were severely depleted. He explained how the loss of Kuru had contributed to the breakdown of his marriage.
Lakisha Kuru, Kuru’s oldest sister, who also worked at Linfox, described her brother as the 1 male she could count on for anything, and said that his death had not only taken away her safe haven, her therapist and her backbone, but that it had taken a huge part of her heart and forever corrupted her functionality. She said that his absence had left her feeling trapped and lonely. She said that after Kuru’s funeral she had taken a year off work because she could not cope, and that she had to say goodbye to a workplace and a team that they both had loved.
Jane Kuru, Kuru’s aunty, said that the day Kuru died will haunt her and her family for the rest of their lives. She said it felt as though there was a void that could not be filled, and that there was always going to be a missing piece of their family. She said that your actions had dismantled a family that was built on love, trust, and faith.
Mazal Takiri, another of Kuru’s aunties, said that on learning of the death of Kuru, her family’s world came crashing down. She said that hearts were shattered beyond repair, and that lives were forever changed by choices she could never understand. She said that her nephew was her son, and that he was the big brother to her 10 children. She said her children had lost their protector.
Tiana-Shayne Tekuru-Takiri, first cousin to Kuru, said she looked to him as her big brother. She spoke of how Kuru had supported her and protected her, and that his loss had pushed her further into depression, anxiety and self-harm. She said that she had made 3 attempts at suicide, and that her cousin, her brother, her superhero was no longer there to save her.
Anthony Tutaka and William Metuariki both spoke of their friendship with Kuru, how they would cherish the good times, and how they missed their friend. Their descriptions of Kuru’s happy, funny, generous and loving nature was echoed by everyone who made statements.
The impact on the victims, including as conveyed in the victim impact statements, has been taken into account.
Personal circumstancesE.
TimoteoE.1
Mr Timoteo, you were born in New Zealand on 23 April 1997 and are 24 years old. You moved to Australia when you were 2 months old. You have 2 younger sisters and 1 older brother, and are close to your siblings.
Your parents divorced when you were 12 or 13 years old. You were exposed to arguments and domestic violence as a young boy. After the divorce your father moved to Samoa. You lost contact with him until you were 16 years old. Your parents now talk and are amicable, and both have visited you in custody.
Prior to the events of 20 February 2020, you had spent a lot of time over the previous 5 years in Samoa, working with your father as an arborist. Apart from this work, your employment consisted of casual work for a mechanic in Sunshine around 2012 to 2013.
You have a partner. She was pregnant for 5 or 6 months last year, but miscarried while you were on remand. That was a difficult time for you.
You completed year 11 at Sunshine Technical College. You completed year 12 at the Melbourne Youth Justice Centre in Parkville.
You have previously been convicted on 2 occasions for affray and also for intentionally causing injury in circumstances of gross violence. You were placed on a 12 month community correction order following a conviction for affray in May 2017. These matters distinguish your position somewhat from your co-offenders.
A psychiatric report of Dr Fiona Best said that you had no significant past psychiatric history, and had never been treated for a major mental illness.[19] She noted that you have a significant history of alcohol and cannabis use beginning in your late adolescence. Dr Best said you had a history of antisocial attitudes and conduct difficulties in adolescence. You reported having a difficulty managing anger, with associated low frustration tolerance and poor impulse control.
[19]Your counsel stated that Dr Best’s report was not relied upon, except to the extent that it contained aspects of your history in terms of family, background and mental health.
She said that there was not enough supporting material to support a conclusion that you were suffering from a disease of the mind or in a dissociated state during your offending, and that the more logical explanation was that you had been drinking alcohol and using cannabis in the early hours of the morning, which increased the possibility of disinhibition, and that you became angry and tried to “defend” yourself.
Dr Best also noted that you reported a history of witnessing significant family violence when you were a child, and as such that you were potentially a secondary victim of that violence. She outlined that there could be consequences for children who witness family violence, which can be traumatising and predispose them to developing mental illness. She said that in your case there may have been psychological, social, educational and behavioural impacts, as well as inter-generational transmission of violence secondary to the abuse you experienced in childhood.
Psychologist, Warren Simmons reported that you were asked to complete a post-traumatic stress disorder checklist, and that your score of 56 was above the cut-off score of 34, which was suggestive of a diagnosis. He said that you described a pattern of symptoms consistent with a diagnosis of post-traumatic stress disorder and expressed the view that there was an overall pattern of physiological responses to traumatic events, or events that were potentially threatening. He suggested that you would benefit from referral to a therapist skilled in the treatment of post-traumatic stress disorder in the context of an abusive violent family member. He said such therapy would be able to focus on your emotional responses, and help to find other ways to manage your behaviour that would be less likely to lead to further aggressive behaviour.
BolalailaiE.2
Mr Bolalailai, you were born in Fiji on 14 April 1997 and are 24 years old. You are the youngest of 5 siblings, and have a younger paternal half-brother.
Your childhood was characterised by instability, after your parents separated when you were young. Your mother re-partnered and your father migrated to Australia. You and your siblings were essentially abandoned by your parents, and were left in the care of extended family members in Fiji.
At age 5, you migrated to Australia with your 2 older brothers to live with your father, who by then had re-partnered. Your sisters remained in Fiji. You initially struggled to cope due to the language barrier and the cultural change.
You were raised by your father who was very strict. From a young age you were focused on doing well both in your schoolwork and in sport. At 15 years of age, you worked part time at a fast food outlet, in addition to your school and sporting commitments.
You completed year 11 at Braybrook College by way of the VCAL[20] pathway, which involved completing a number of civil construction certificates. At 17 years old, you left school. You started a bricklaying apprenticeship in addition to working night shifts at a fast-food outlet.
[20]Victorian Certificate of Applied Learning.
Your father passed away when you were 18 years old. This was a significant, profound and destabilising event. You became depressed, and were overwhelmed by feelings of parental abandonment. You were left on your own, without the strict structure and support your father had provided. In this context you drifted towards alcohol and cannabis use.
Following your father’s death, you lived by yourself. Without your father pushing you, you lost your employment, and for the next 3 months spent most of your days drinking and smoking cannabis with friends. Your house became overrun as you became completely absorbed in this lifestyle.
You met Mr Timoteo through playing rugby, became friends, and were invited to live with the Timoteo’s family to provide you with support to get your life back on track. You lived with the Timoteo family from that time and developed a strong bond with them. You consider Mr Timoteo’s mother to have played a significant maternal role in your life.
With the stability of living in a family environment, you obtained employment installing panels on houses and worked in that job for the next 6 to 8 months. You were then employed as a tree-lopper in Mr Timoteo’s father’s business. At the same time, you were working night shifts at the airport installing panels on luggage conveyor belts.
Your criminal history includes that you have previously been convicted of burglary and theft and received a community correction order in 2017. That order was completed in 2018. You have not previously been sentenced for the commission of violent offending.
At 21 years old, you met your now former partner, and on 20 April 2018 your first child Aria was born extremely premature and did not survive. You found it profoundly difficult to deal with the death of your daughter, and your alcohol and cannabis use increased as a way of trying to cope.
On 21 June 2019, your second daughter Zinnia was born. Your relationship with your partner has ended, however she continues to facilitate contact between you and your daughter.
FuatavaiE.3
Mr Fuatavai, you were born in New Zealand on 1 February 2000 and are 21 years old. At the age of 3 you moved to Australia with your family, and resided in Cairns until the age of 17, when your family decided to move to Melbourne.
You were brought up in a strict and religious family. You were disciplined by being struck with various objects. You reported that you felt depressed, hurt and angry, because you did not understand why you were being belted. Despite this, you now have a good relationship with your parents.
You attended Woree State High School in Cairns, completing year 11. You described yourself as having difficulties during school, requiring ongoing teaching aid and having to attend catch up classes. You attempted to complete year 12 after moving to Melbourne, but your learning difficulties meant that you struggled with the curriculum and you ceased your studies.
After leaving school, you remained employed in a number of warehouse-based positions around Melbourne. You were employed on a casual basis but consistently worked full time hours. You were employed on a full time basis at Logistics Freight Solutions from 2019 until the start of 2020. Then for a short while you worked in a tree lopping business on a sporadic basis.
You were an active member and contributor to your local community churches both in Melbourne and in Cairns. You were ordained a young deacon of the Seventh-Day Adventist Church in Cairns, and were given responsibility for assisting in the organisation of church-led youth activities. In Melbourne, you were heavily involved in the Craigieburn Samoan Church, and organised weekend sporting and social events. You were also a member of the church band.
You have been in a significant relationship with Chauntelle Timoteo for over 4 years. From this relationship, you have a son who is 2 years old. In a letter to the court, she has spoken highly of you. She is very supportive of you and referred to you being very sorry for what has occurred.
You told psychologist Dr Mathew Barth that you had commenced drinking alcohol when you were 14 years old, and that your alcohol consumption increased in your late teenage years. Your drinking behaviour continued to increase in the months leading up to your offending. You informed Dr Barth you had been stressed about finding stable employment. You were also troubled over conflict with your partner, and with regard to feeling overwhelmed with the responsibility of being a young father.
You told Dr Barth that you had also begun smoking cannabis at age 14, and that you had become addicted to the drug after using it with your social network. You said you had used cannabis to escape from your problems and avoid thinking about your life. After ceasing for a short time, you continued using cannabis on a sporadic basis when you moved to Melbourne.
You reported to Dr Barth that you had used methamphetamines 2 years ago, on 3 or 4 occasions, when you felt depressed following arguments with your partner. You rejected the suggestion that any form of substance misuse was implicated in your offending conduct.
Dr Barth reported that you presented as an immature and unsophisticated young man, and that your decision-making skills, coping strategies and broader view of life remain very undeveloped. Dr Barth said that as a result, you often fail to consider the consequences of your behaviour. In respect of your anger management skills, Dr Barth said that your level of emotional awareness is poor, and that it was often very difficult for you to understand the processes associated with your anger. This made it difficult for you to exercise effective behavioural control, particularly at times of stress or in circumstances where you felt overwhelmed.
You have no criminal record.
Factors in mitigationF.
Guilty pleasF.1
You have each pleaded guilty to each offence with which you have been charged. The prosecution accepts that each plea of guilty was made at an appropriately early stage.[21] Your pleas of guilty have a significant utilitarian value, resulting in the saving of police and court resources, as well as sparing witnesses from giving evidence at trial.[22] The pleas of guilty are a significant mitigating factor.
YouthF.2
[21]See also fn 3 above.
[22]Director of Public Prosecutions v Whitelegg [2016] VSC 412, [55] (Jane Dixon J); Phillips v The Queen (2012) 37 VR 594, 605 [37]-[39] (Redlich JA and Curtain AJA).
You are each young men. Mr Timoteo and Mr Bolalailai, you were both 22 at the time of the offending. Mr Fuatavai, you were only 20 years old at the time.
None of you fall within the definition of “young offenders” in section 3 of the Sentencing Act 1991 (Vic). However, your counsel each referred to the principles in R v Mills, where it was held that:[23]
(1)Youth of an offender, particularly a first time offender, should be a primary consideration for a sentencing court where that matter properly arises.
(2)In the case of a youthful offender, rehabilitation is usually far more important that general deterrence, as punishment may in fact lead to further offending, while rehabilitation might prevent further offending and thus benefit the community as well as the offender.
(3)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effect of her or his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.
[23][1998] 4 VR 235, 241.4 (Batt JA, with whom Phillips CJ and Charles JA agreed).
There was no issue that it was appropriate that you all should receive a prison sentence in an adult prison. However, the prosecution accepted that given your youth, rehabilitation was an important sentencing consideration and additional weight should be afforded it. That said, they submitted, appropriately in the circumstances of this case, that rehabilitation should not be given primacy over other sentencing considerations such as general and specific deterrence, denunciation and just punishment.
To elaborate, in a case where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to factor more heavily in the sentencing process, the youth of the offender will be given correspondingly less weight.[24] I consider this to be such a case, in view of the nature of your offending. That said, I do not consider this case to be an example of the “gravest criminal offending” where there is “no realistic prospect of rehabilitation”, and thus do not consider that the mitigatory considerations of your youth to have been extinguished.[25]
RemorseF.3
[24]Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
[25]Ibid.
Each of your counsel submitted that you feel remorse for your actions and the pain those actions have caused, and each relied on your early pleas of guilty as evidence of this remorse.
Mr Timoteo, your counsel also relied on your psychologist report, in which it was stated that without hesitation you expressed remorse for your actions and did not attempt to justify what had occurred. He was also instructed by you to make an abject apology of sincere regret on your behalf for the untimely death of a young man.
Mr Bolalailai, your counsel referred to a letter you had written to the court, where you said “I will never forgive myself for my actions on that day”. You acknowledged that your actions not only affected Kuru, a young man, but that they also affected his family, his loved ones and your family as well.
Mr Fuatavai, your counsel referred to your psychological assessment, in which it was noted that you expressed remorse by saying “I wish I could go back to that day and do things differently. I’m so angry at myself. I’ll never forget what happened, an innocent life has been lost.” You also wrote a letter to the court, where you said, “Everyday and night I plead to the man above to forgive me and my brother not only for our actions that have unfortunately taken the life of a young Polynesian brother but also for the pain and grief that his family and many loved ones have [endured].”
I accept that each of you feels remorse for your actions.
Prospects for rehabilitationF.4
Your counsel submitted that you each have prospects of rehabilitation. It was submitted, and I agree, that this should be taken into account both with respect to the head sentences and the fixing of non-parole periods.
Mr Timoteo, your counsel referred to your good employment history, the fact that you have been drug free while in custody,[26] and your participation in programs available while you have been in custody (limited as these were by the COVID-19 pandemic). Psychologist, Warren Simmons assessed that you had some prospect of rehabilitation given your relative youth, the support of your family and the fact that there was not a more wide pattern of offending behaviour which would be indicative of significant antisocial personality traits. Your counsel summarised your prospects as reasonable to good.
[26]Based on 2 certificates of urine analysis provided to the court, dated 15 September 2020 and 10 April 2021.
Mr Bolalailai, your counsel referred to your employment history, the fact that you have engaged in educational and training courses while on remand, that you have been employed in the kitchen, and that you have participated in a number of drug and alcohol counselling sessions. The court was provided with a number of letters of support from members of your family, who attested to your character despite a difficult upbringing. They spoke of their shock of your offending in this way and emphasised the importance of your connection to your daughter. They are committed to supporting you on your eventual release.
Mr Fuatavai, your counsel referred to the psychological assessment of Dr Barth, who concluded that violence prevention training, substance abuse treatment and mental health treatment would be key to your rehabilitation and to reducing the risk of recidivism. Dr Barth acknowledged you have expressed a strong desire to participate in any treatment required. Your have enrolled yourself in a number of courses to facilitate your rehabilitation, and have completed the “Take Stock” module conducted by Relationships Australia. The court has been provided with letters of support from your family, as well as from leaders of the churches you have been involved in, both in Cairns and in Melbourne. They spoke to your prior good character and showed you have a network of support to assist in your rehabilitation. While it was accepted that your prospects of rehabilitation were contingent on your participation, it was submitted that your attitude to seeking assistance meant you had good long term prospects in this regard.
Counsel for the prosecution has accepted that each of you have some prospects for rehabilitation. I accept that, especially in light of your youth, each of you has reasonable to good prospects of rehabilitation.
HardshipF.5
Your pre-sentence detention has occurred in the context of the COVID-19 pandemic. Mr Timoteo, your counsel set out that the pandemic has resulted in greater hardship for prisoners, requiring as it has:
(1)Restriction of in-person visits from family and friends.
(2)Restriction in mixing with other prisoners.
(3)Increased lockdowns and time spent in cells.
(4)Reduced ability to participate in programs and gaol house recreations.
Mr Bolalailai and Mr Fuatavai, your counsel submitted that in addition to the hardship of the COVID-19 pandemic, you have both faced additional hardship in having been separated from your young children.
Further, neither of you are Australian citizens.[27] Both of you fear the prospect of deportation following your release from prison. If deported, you will be further separated from your daughter and son respectively, as well as your family and friends in Australia. The prosecution accepted that a likelihood of deportation would make the burden of imprisonment more onerous than in the case of other prisoners.[28] However, while the potential of deportation is a relevant mitigating circumstance because of its impact during the currency of the sentence and upon release, the weight to be given to it must be diminished somewhat by the seriousness of your offending.[29]
Additional mattersG.
ParityG.1
[27]The court was informed that you, Mr Bolalailai, are a permanent resident. In relation to you, Mr Fuatavai, the court was simply told that you are not a citizen of Australia.
[28]Guden v The Queen (2010) 28 VR 288, 294-295 [25]-[26] (Maxwell P, Bongiorno JA and Beach AJA).
[29]Fichtner v The Queen [2019] VSCA 297, [96] (Maxwell P and Kaye JA). See also Sentencing Advisory Council, Deportation and Sentencing: An Emerging Area of Jurisprudence, November 2019.
The principle of parity requires consistency of approach in the sentencing of co-offenders who have committed the same offence.[30] Even if things are not entirely equal between the offenders’ circumstances, the sentences of co-offenders must not be so disparate as to give rise to a “justifiable sense of grievance”, such that it would appear that justice has not been done.[31] However, this principle is only applicable to the extent that the co-offenders’ background, culpability and criminal history are comparable.[32] Age, background, criminal history, general character and the part each has played in the criminal conduct are all matters that may give rise to different sentences being appropriate between co-offenders.[33] The principle is relevant to all components of the respective sentences.[34]
[30]Sentencing Act, s 1(a).
[31]Lowe v The Queen (1984) 154 CLR 606, 610.2 (Gibbs CJ), referred to with approval in Green v The Queen (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ).
[32]Green v The Queen (2011) 244 CLR 462, 474-475 [31] (French CJ, Crennan and Kiefel JJ).
[33]Ibid.
[34]Postiglione v The Queen (1997) 189 CLR 295, 302.4 (Dawson and Gaudron JJ).
There are a number of features that distinguish you from each other for the purpose of sentencing you.
Mr Timoteo, you have previous convictions for crimes involving violence, including gross violence.
Mr Bolalailai, you also have previous convictions, but not involving violence. You offered to plead guilty to manslaughter before any examinations occurred in relation to your offending. You have a young child.
Mr Fuatavai, you are a couple of years younger than your co-offenders and have no criminal record. There is no evidence that you hit Kuru once he was on the ground. You also have a young child.
Parsimony and totalityG.2
The principle of parsimony requires that the sentence imposed on each of you is no more severe than is necessary to achieve the sentencing purposes.[35] The principle of totality requires me to ensure that, in sentencing each of you for multiple offences, the aggregate term imposed is a “just and appropriate measure of the total criminality involved”.[36] In this context, the ongoing effects of the pandemic must also be taken into account.[37]
[35]Tannous v The Queen [2017] VSCA 91, [41] (Redlich and Ferguson JJA). See also Sentencing Act, s 5(3).
[36]Postiglione v The Queen (1997) 189 CLR 295, 304.2 (Dawson and Gaudron JJ), 307.9–308.3 (McHugh J), 321.2 (Gummow J) 340.2 (Kirby J). See also Azzopardi v The Queen (2011) 35 VR 43, 59-63 [56]-[69] (Redlich JA, with whom Coghlan and Macaulay AJJA agreed).
[37]Alexander v The Queen [2021] VSCA 140, [19] (Niall JA); Stanger v The Queen [2021] VSCA 25, [65], (Maxwell P, Kaye and T Forrest JJA); Wyka v The Queen [2020] VSCA 104, [163] (noting also [143]-[162]) (Croucher AJA, with whom Niall JA agreed); Brown (aka Davis) v The Queen [2020] VSCA 60, [48] (Priest and Weinberg JJA).
In this case, it is appropriate that there is a degree of cumulation between the sentences imposed for each offence in relation to each of you.
Sentencing practice and comparable casesG.3
Counsel for the prosecution and for Mr Fuatavai have each provided lists of comparable cases, which I have reviewed. Counsel for Mr Timoteo provided a sentencing snapshot for manslaughter.[38] While I have considered these materials, and both the comparative cases and the sentencing snapshot are relevant considerations, their ultimate utility for determining a sentence is limited given that the circumstances which may give rise to a conviction for manslaughter are so varied,[39] and the answer in a particular case must be distilled from a number of particular competing and contradictory considerations.[40]
SentenceH.
[38]This was for the years 2013-2014 to 2017-2018. See also R v Lucas [2021] VSC 81, [212] (Croucher J).
[39]See, for example, Tito v The Queen [2011] VSCA 303, [53] (Sifris AJA, dissenting), referring to R v Blacklidge (Unreported, New South Wales Court of Appeal, Gleeson CJ, Grove and Ireland JJ, 12 December 1995) 4.
[40]Ibid, [31] (Tate JA, with whom Buchanan JA agreed).
As was said at the outset, the gratuitous and violent conduct evident in this case must be strenuously denounced. However, this is not to occur to the exclusion of the other sentencing factors, or without affording them due weight.[41] Taking each of the matters referred to above into account,[42] and balancing the factors as best as I am able, I sentence each of you to be imprisoned according to the tables below.
[41]See, for example, R v Duncan [2009] VSCA 253, [12] (Buchanan JA, with whom Dodds-Streeton JA and Hansen AJA agreed). See also Lunt v The Queen [2011] VSCA 56, [31]-[34], [39]-[40], [58]-[61], [82]-[85] (Nettle JA, with whom Neave and Tate JJA agreed).
[42]Again, noting the matters identified by the prosecution that were for context only.
Under section 6AAA of the Sentencing Act, I am required to state the total sentence and non-parole periods I would have imposed but for your pleas of guilty. I have included this information the tables below.
Nathan Timoteo
Charge
Offence (Victim)
Maximum
Sentence
Cumulation
1 Common Assault (Tagatanuu) 5 years 2 years 6 months 2 Common Assault (Tagatanuu) 5 years 10 months 5 months 3 Common Assault (Tuiliau) 5 years 10 months 5 months 4 Causing Serious Injury Intentionally (Tusa) 20 years 4 years 1 year 5 Manslaughter (Kuru) 20 years 9 years and 6 months Base Total sentence
11 years and 10 months
Non-parole period 8 years and 9 months Total sentence had you not pleaded guilty 14 years Non-parole period had you not pleaded guilty
10 years
Josaia Bolalailai
Charge
Offence (Victim)
Maximum
Sentence
Cumulation
1 Common Assault (Tagatanuu) 5 years 1 year 9 months 5 months 2 Common Assault (Tagatanuu) 5 years 9 months 4 months 3 Common Assault (Tuiliau) 5 years 9 months 4 months 4 Causing Serious Injury Intentionally (Tusa) 20 years 3 years 10 months 10 months 5 Manslaughter (Kuru) 20 years 9 years and 3 months Base Total sentence
11 years and 2 months
Non-parole period 8 years and 2 months Total sentence had you not pleaded guilty 13 years and 6 months Non-parole period had you not pleaded guilty
9 years and 6 months
Jonathan Fuatavai
Charge
Offence (Victim)
Maximum
Sentence
Cumulation
2 Common Assault (Tagatanuu) 5 years 6 months 2½ months 3 Common Assault (Tuiliau) 5 years 6 months 2½ months 4 Causing Serious Injury Intentionally (Tusa) 20 years 3 years and 8 months 8 months 5 Manslaughter (Kuru) 20 years 9 years Base Total sentence
10 years and 1 month
Non-parole period 7 years and 4 months Total sentence had you not pleaded guilty 12 years and 6 months Non-parole period had you not pleaded guilty 9 years
As required by section 18(1) of the Sentencing Act, I declare that up to but not including today you have each been held in detention for a period of 481 days. I will cause that declaration to be noted on the court records.
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