DPP v Maulio, Tuvale & Poluleuligaga
[2006] VSC 188
•23 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1534 of 2004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KITIANO MAULIO |
| and |
| TALA JUNIOR TUVALE |
| and |
| SILEI AGNES POLULEULIGAGA |
JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 22 May 2006 | |
DATE OF SENTENCE: | 23 May 2006 | |
CASE MAY BE CITED AS: | DPP v Maulio, Tuvale & Poluleuligaga | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 188 | |
---
Criminal Law – Sentencing – Affray – Intentionally causing injury – Recklessly causing serious injury - Pleas of guilty – Young offenders - 5 ½ years delay – Short affray – Minor role in affray and consequences - Adjournment without conviction – Community based order - Sentencing Act 1991, ss. 37, 38. 38, 75 and 109.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T Gyorffy QC with Mr P A D’Arcy | Mr S Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Kitiano Maulio For Tala Junior Tuvale For Silei Poluleuligaga | Mr Mark Rochford Mr Dermott Dann Mr David Drake | Robert Stary and Associates |
HIS HONOUR:
Kitiano Maulio, Tala Junior Tuvale and Silei Agnes Poluleuligaga, you have each been presented on a charge that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. You have each pleaded guilty to this charge.
The maximum penalty prescribed for the commission of this offence is 5 years imprisonment.
Mr Tuvale, you have been presented on a further charge that at Broadmeadows on 18 November 2000 you without lawful excuse intentionally caused injury to Mohmoud El-Haouli. You have pleaded guilty to this charge.
The maximum penalty prescribed for the commission of this offence is 10 years imprisonment.
Mr Maulio, you have been presented on a further charge that at Broadmeadows on 18 November 2000 you without lawful excuse recklessly caused serious injury to Murat Shomshe. You have pleaded guilty to this charge.
The maximum penalty prescribed for the commission of this offence is 15 years imprisonment.
I will now describe the circumstances in which each of you committed the respective offences. First I will describe the circumstances of the affray in general. Then I will move to your individual roles in that offence, which were limited, and the circumstances of the further offences with which you, Mr Tuvale and Mr Maulio, have been charged.
First, the general circumstances of the affray. At about 11.30pm on 18 November 2000 a fight occurred between two groups of youths on Pearcedale Road, Broadmeadows between the Safeway supermarket and a building known as Youth Central. At the time there were many people in the area. A cultural festival was underway in the car park and streets around the supermarket. The two groups are referred to in the depositions as the “Islanders”, which is the group to which you all belonged, and the “Turks” which is the group to which Mr El-Haouli and Mr Shomshe belonged. A third group of youths was involved in events that took place before the affray.
Shortly before 11.30pm members of that third group walked past the supermarket where they were confronted by some of the Turks. Mr Shomshe was drunk and challenged a member of the third group to fight. That person pacified him and he said “things were cool” and shook his hand.
Then an Islander, described as a Samoan, walked by. Mr Shomshe threw a bottle at his feet and it smashed. The Samoan was grabbed by another member of the Turks but the Samoan said he did not want to fight. He said he had 30 friends down the road who would bash the Turks if they saw things being thrown at him.
The Samoan alleges he was called a “black cunt” by a member of the Turks. He had a brother aged only 6 years with him and was concerned for his welfare. Mr Shomshe stepped in and said “if you want to fight let’s go now”. This did not go further after a female member of his group asked him to stop. She pushed him away. The Samoan left.
This account was supported by another member of the Islander group who was with the Samoan. This person says one of the Turks said something smart to him. He says the Samoan said he did not want any trouble. He says Mr Shomshe said not to worry about the smart thing said because the speaker was drunk. He also said the Turks would punch on if the Islanders wanted to.
I must observe that, up to this point at least, Mr Shomshe’s conduct was aggressive and ill-judged. He behaved in a drunken manner and was looking for a fight. He threw a bottle at a person’s feet. On the other hand, he was quickly pacified and tried to cool things down when something smart was said. Mr El-Haouli was part of the group of Turks who behaved in a similarly aggressive and ill-judged manner.
One of the Samoans sensed there might be trouble so he left his friend talking to the Turks group and went over to the Islander group. One of the Islanders told him to go back to the Turks and get smart with them. He went back and spoke to one of the Turks. His friend was still there talking to the Turks. He told them the Islanders wanted to talk to them and he then went across the road and spoke with the Islanders.
It is very unclear why, but soon after this members of the Turks made their way across Pearcedale road towards Youth Central. Two of them were Mr El-Haouli and his brother Abdul, and another was Mr Shomshe.
Shortly afterwards about ten Turks were seen in the middle of the road yelling with the two Islanders. The Islanders were much bigger than the Turks. Another Islander called to you, Mr Tuvale, and another person to see if you could sort it out. He regarded you and your friend as calm and usually capable of talking your way out of trouble.
One of the Turks was then observed swinging a tree stake around, trying to hit Samoans. This lasted only a few seconds. Mr Mohmoud El-Haouli was observed being handed a stake by another Turk and swinging it. An Islander was hit with a stake. Within a short period of time there were three Turks on the ground. One of them was Mr Shomshe. The other two were very likely Mohmoud and Abdul El-Haouli.
However the fight started, the Turkish group, who were physically and numerically smaller, were quickly overwhelmed by the Islander group, which included each of you at this early stage. The Turks attempted to flee but were pursued, caught and beaten by members of the Islander group which, at this latter stage, did not include any of you.
Tragically Abdul El-Haouli lost his life in the incident. None of you have been charged in relation to that matter. Mohmoud El-Haouli was beaten unconscious. He sustained injuries including severe bruises, grazes and lacerations and extensive cuts that required many stitches, including to the face and head. He was hospitalised but left early because his brother was not expected to survive. Mr Shomshe was also beaten unconscious. His injuries were more serious than Mr El-Haoulis’. He was struck a number of times to the body and head. One of these blows caused brain damage from which he still suffers significant medical consequences. He too was hospitalised. I will say more about the medical condition of these two men a little later.
Although these are the general circumstances of the total affray, the involvement of each of you was limited to a short period in its early stages. I will now describe the nature of each of your limited involvement in the affray and the circumstances in which the further offences were committed by you Mr Tuvale and you Mr Maulio.
Mr Tuvale, you were part of the Islander group which, before the fight began, was drinking near the Youth Central building. Two of the group, not you, walked to the edge of Pearcedale Road and exchanged taunts with Mr Shomshe and the two El-Haouli brothers. The two brothers began a fight by swinging garden stakes they had pulled out of the ground nearby. An Islander was hit with a stake, as I have said.
You heard shouting coming from Pearcedale Road and ran over to see what was happening. Your primary motivation was to assist your friends to whom you felt a sense of loyalty. You saw a Turk lying on the ground. You saw Mohmoud El-Haouli about to hit an Islander. You punched him twice and he fell to the ground and you kicked him in the ribs. These punches and this kick were done with the intention of injuring Mr El-Haouli. An Islander friend of yours then hit him with a stick three or four times after which you took off together. I note, therefore, that yours was a short-lived involvement in the early part of the affray and caused injury only to Mr Mohmoud El-Haouli. You were not involved in inflicting injuries upon Mr Abdul El-Haouli or Mr Shomshe.
Mr Maulio, prior to the fight starting, you were in the company of the Islanders near the Youth Central building. As I have said, two of the group, again not you, walked to the edge of Pearcedale Road and exchanged taunts with Mr Shomshe and the two El-Haouli brothers. One of these Islanders was a friend of yours. The two brothers began a fight by swinging garden stakes they had pulled out of the ground nearby. An Islander, your friend, was hit with a stake.
You ran to the roadway and got involved in the fight. To assist your friend, you threw two punches at Mr Shomshe, which missed. You were then present and involved in scuffling when others struck Mr Shomshe with sticks. You were part of the affray that occurred at this point and aided and abetted other Islanders who inflicted serious injury on Mr Shomshe. You recklessly disregarded the serious injury to which Mr Shomshe was exposed. You then fled the scene. I note, therefore, that you, too, were involved only in the early part of the affray. You caused injury only to Mr Shomshe. You were not involved in inflicting injuries upon Abdul or Mahmoud El-Haouli.
Ms Poluleuligaga, you were involved in the affray as part of the Islander group but also only in the early stages. You too were motivated by a desire to protect members of the Islander group with whom you were associated, especially one of them who was your cousin. You were physically assaulted yourself during the course of the incident and were quite terrified by the experience. You did not bring about the start of the affray. You got caught up in an event brought about by others and withdrew at an early stage. Although your presence and actions made you part of the affray, your individual role was minor and limited to this early stage.
The police investigated the matter. For whatever reason, charges were not laid for about 3 ½ years. Mr El-Haouli and Mr Shomshe pleaded guilty to charges of affray and I have sentenced them recently.[1] Three other members of the Islander group have also been charged with affray (1 count), manslaughter (1 count), causing serious injury intentionally (2 counts) and causing serious injury recklessly (2 counts). They have pleaded not guilty to these charges and are awaiting trial before me. The charge of manslaughter arises out of the death of Mr Abdul El-Haouli.
[1]DPP v El-Haouli & Shomshe [2006] VSC 165
Mr Tuvale, I will now turn to your personal circumstances.
You are now 22 years of age. In November 2000, when the incident happened, you were only 16 years of age.
You were born in New Zealand of Samoan parents and came to Australia when you were 2 years of age. You have lived variously with your family in Brisbane, Mt Druitt, which is where you were brought up, Sydney and Melbourne. Your education has been disrupted and you were not able to complete year 10 of your secondary schooling. Since leaving school you have had several significant periods of employment with various companies, both in Melbourne and Brisbane. You live in Brisbane with your mother and the rest of your family.
Your mother and father separated when you were just 12 years of age and you have seen little of your father. He is a retired factory worker who lives in Sydney.
You were not charged with the offences arising out of the incident until November 2003. By this time you had moved back to Brisbane to live with your mother. Again you worked for significant periods the last of which ended in December 2005. Since this time you have been doing short-term casual-type work, always in the knowledge that the trial of the charges was hanging over you.
You have a great interest and considerable ability in rugby. You have played this sport from a young age. You knew some of the other persons involved in the incident in November 2000 from a rugby club in the northern suburbs of Melbourne. You have played international rugby and have represented your State. You still play at a very high level.
As you were only 16 at the time of the incident, if you had been more quickly charged, in all likelihood you would have been dealt with in the Children’s Court as a young offender. In the Children’s Court the focus would clearly have been upon your rehabilitation.
Mr Tuvale, you have appeared in court on one prior occasion. On 1 August 2000 you appeared in the Children’s Court. You were then 16 years of age. You were found guilty of the charge of being on premises without lawful excuse and fined $150. You went onto a house-building site near your home without permission with some friends and the police found you there.
Since November 2000 you have appeared in criminal matters on two occasions in Brisbane. The first was on a charge of wilful damage of property. In May 2002 you were fined $250 without conviction. You and some friends got into an argument and kicked a door in and broke a window by throwing a pot-plant through it. The second was on a charge of breaching bail, obstructing police and behaving in a disorderly manner. In January 2004 you were fined $450. You had been drinking with friends at Surfers Paradise and got into an argument. These offences are of concern to me. If they had occurred recently they would have raised doubts in my mind about your intentions. But the circumstances of these offences occurred in 2002 and earlier. You have nothing pending, so you have been of good behaviour for the period of 4 years from 2002.
Your counsel has given me a character reference from the president of your rugby association and it is in very favourable terms. You are clearly regarded well by the association and have made a significant contribution to its activities.
Mr Maulio, I will now turn to your personal circumstances.
You were born in Samoa and did not know your mother. You spent the first 10 years of your life in a village in Samoa being brought up by your grandmother. You were later adopted and brought up by the woman whom you now consider to be your mother. She showed her support for you by attending in court on the plea counsel made on your behalf. She is your father’s cousin. You consider her husband to be your father.
You were brought to Australia by your adopted mother and father in 1994. You lived with your family in Reservoir and attended primary and secondary school. You were a champion junior rugby player and played for Victoria in the national championships in the under-16 division. You left secondary school in Victoria at the end of year 11 after receiving a rugby scholarship to be a boarder at a private boys school in Queensland.
You completed year 12 in Queensland and played rugby for the Queensland schoolboys team. You also represented Australia in teams that toured Europe and Japan. You played professional rugby from 2001 to 2003 until stopped by injury in that latter year. You were not charged with the offences until 2004 so these outstanding sporting achievements occurred after the offences were committed.
Despite the strongly physical nature of the game of rugby you have never been called before the judiciary of that sport to answer charges of violent play or anything of this kind.
Through rugby connections, you obtained employment as a technician with an office machine company in Brisbane. You are still in full-time employment with this company. You are extremely well-regarded by your employer and they are looking forward to your return.
You were only 17 at the time of the incident and are still only 23 years of age. In the intervening 6 or so years you have focused strongly on your work, your sport and your family.
Your counsel has supplied me with a number of references and I have been impressed by their contents. Your employer, rugby coach, religious pastor and family friend have all written of your excellent character. I am quite sure your involvement in the incident was out of character. You have been, and will continue to be, a valuable member of the community.
Mr Maulio you have appeared in court on one prior occasion. On 1 February 2000 you appeared in the Children’s Court when you were 16 years of age. You were found guilty of the charge of recklessly causing injury and released without conviction until 28 November 2000 upon entering into a recognizance in the sum of $200 to be of good behaviour. You punched a schoolyard bully in retaliation to him pushing you and making racists taunts towards you. You caused him only minor injury. You have no matter pending before a criminal court.
Ms Poluleuligaga, I will now turn to your personal circumstances.
You are currently 25 years of age. You are single but have a very close relationship with your boyfriend who has been in court often to lend you moral support.
The details of your family background were explained to me by your counsel. It is neither necessary nor appropriate for me to describe the full details here. The essential facts are that your parents separated and divorced long ago. Each have remarried. You have full and half siblings and have a loving relationship with them and with your mother and step-father. You have an arms-length relationship with your father.
Your early life was severely disrupted due to difficulties within your family. You attended many different primary schools. You always tried to do your best. To your great credit you passed your VCE at Mill Park Secondary College. You were a member of the Student Representative Council, and the Chairperson for the last two years.
You are in full-time employment as a payroll officer with a plastics manufacturer.
You are an outstanding sportswomen. The high-jump record you set as a physically small young girl still stands today. I am reminded of someone else who set sporting records as a physically small young girl. She went on to be an inspirational Australian. Her name is Cathy Freeman. You have excelled in no sport more than rugby. You have played State and club rugby for many years and represented your State on many occasions. You have won awards for your rugby performances and are a State Player of the Year. You have been invited to train with the Australian Women’s Rugby Team and hope to be selected for the World Cup in Canada in November 2006.
You too have excellent character references. They have given me an insight into the valuable role you play in the community. Reading these references makes me sure your involvement in the incident was out of character. Your former employer, TAFE teacher and rugby coach have all written strongly on your behalf. I am impressed by the effort you make to be a positive role model for young rugby players. Your capacity to inspire respect in other people is amply demonstrated by the very positive reference volunteered on the morning of the plea. It was from a rugby referee who has observed you on the field and knows your family. He is a barrister who happened to notice your case in the law list.
You have appeared in court on one prior occasion. On 22 October 1999 you appeared in the Magistrates’ Court at Broadmeadows. You were found guilty of charges of unlawful assault and assault in company with other persons and were released without conviction until 20 April 2000 upon entering into a recognizance to be of good behaviour. You punched another girl who punched you when you intervened in a fight between a third girl, who was your friend, and a fourth girl. The penalty imposed shows the Court treated this as a minor matter. You have no matter pending before any court.
Mr Tuvale, Mr Maulio and Ms Poluleuligaga, you have all pleaded guilty to the charges laid against you. Although these pleas have been entered only recently, there are reasonable explanations for this which I need not go into here. In the circumstances I consider your pleas of guilty to be significant in showing you are each seriously remorseful for your individual parts in the incident.
Each of you, also, has been fully co-operative with the police since the incident took place.
I will now deal more fully with the consequences of the incident for the victims.
Mr El-Haouli’s hospital records show he was placed in a cervical collar. He had redness over the eye and a 3cm laceration to the back of his head. He had bruising and swelling to the right arm and swelling to the left hand. He required intravenous hydration, analgesia and a tetanus injection. His x-rays were normal. His laceration was cleaned and sutured and he remained in hospital under observation until about 10.30am the morning after the incident.
The tragic events of the incident changed Mr El-Haouli’s life forever. The details are set out in the victim impact statement he supplied. He tried to return to his former employment but was not successful. He and his family have been devastated by the death of his brother, although none of you were responsible for this. He lives with his mother and other siblings, and his mother is prone, even now, to very emotional displays of grief. She has decorated the house as if it were a shrine to Abdul. She is overprotective of the welfare of her surviving son. His income support has been precarious and he has had no such support for some periods. He is always sad and upset.
Mr El-Haouli’s forensic psychologist, Ian Joblin, has assessed his mental condition. The assessment shows he has not coped with the death of his brother. He is fearful of travelling at night for fear of being further harmed. He experiences constant flashbacks. He lives in a state of considerable depression and is suffering from post traumatic stress disorder. His psychological issues remain unresolved.
Mr Shomshe’s hospital records show he was more seriously injured than Mr El-Haouli. On medical examination he had a laceration above the right eye, a graze over the right cheek, a laceration through the left ear, two large lacerations behind the left ear and a graze to the left chest. A CT scan of his head revealed a left subdural haematoma and he was admitted to the trauma unit and required neurosurgery for further management.
His medical condition is described in a report prepared in 2001 by Sunshine Hospital. After the fight, he was hospitalised for 3 days. He has required rehabilitation since being discharged. He experiences headaches and post traumatic stress disorder. He has impaired memory functioning and poor capacity to maintain attention. He is slow to perform complex tasks. His executive (ie decision-making) functions are mildly to moderately impaired.
The effects of the incident upon Mr Shomshe are described in detail in the victim impact statement he supplied. These effects are consistent with his psychological condition as set out by his forensic psychologist, Tim Watson-Munro, in April 2006. He continues to suffer from the impact of the injuries he sustained. The diagnosis of post traumatic stress disorder is still appropriate. He experiences sleep disturbance, depression and anxiety. He is socially withdrawn and hypervigilent to danger. The cognitive deficits identified in the Sunshine Hospital report appear to be ongoing to some extent. His recovery from his medical conditions remains uncertain.
I have fully described the impact of the incident upon Mr El-Haouli and Mr Shomshe because, for them, there was a single incident during which were inflicted the totality of their injuries and from which they experience general ongoing consequences. However, each of you were not responsible for inflicting all of those injuries and are not responsible for all of those consequences. All of you were involved in the affray, but only in the early part. Mr Tuvale, you caused injury to Mr Mohmoud El-Haouli but caused no injury to anyone else. Mr Maulio, you aided and abetted in the reckless causing of serious injury to Mr Shomshe but caused no injury to anyone else. Mr Tuvale and Mr Maulio, I do not underestimate your culpability. But the nature of your involvement in the incident is such that you must have caused only a minor part of the injuries and the consequences suffered respectively by the two victims.
Mr Tuvale, Mr Maulio and Ms Poluleuligaga, you all committed the serious crime of affray. This crime is so serious that a sentence of imprisonment might ordinarily be called for. The manner in which you behaved in the incident deserves strong condemnation. At a cultural festival attended by law-abiding members of the community, each of you engaged in a fight and made an affray. Even though it was short in duration, it would have put innocent members of the public in fear when they were simply trying to enjoy the cultural festival. If it were not for the exceptional nature of your cases, you would all have faced certain prison sentences for your criminal conduct.
The following circumstances, taken together, make your cases so exceptional that, in my view, prison sentences are not called for:
· None of you were responsible for the commencement of the affray.
· The fight which constituted the affray in which each of you was involved was in the early part of the incident and short in duration.
· After this initial involvement, each of you quickly left the scene. None of you were responsible for the continuation of the affray beyond this point.
· Your crime of affray was a serious one but was not at the higher end of the scale of seriousness for this crime. It is not alleged that members of the public suffered any affect over and beyond the affect of observing the fight.
· By reason of the limited nature of your involvement, you are each responsible only for a minor part of the consequences of the affray for Mr Mohmoud El-Haouli and Mr Shomshe. None of you were responsible for the tragic death of Mr Abdul El-Haouli.
· You have each pleaded guilty and demonstrated that you suffer from serious remorse for your involvement in the incident.
· You each have excellent prospects of rehabilitation.
· You all come from supportive families.
· Each of you was of a young age at the time of the commission of the offence. Mr Tuvale, you were aged only 16 years. Mr Maulio, you were aged only 17 years. Ms Poluleuligaga, you were aged 19 years. You are now aged 22, 23 and 25 respectively, which is still relatively young.
· There has been an unusually long delay, both in the investigation that led to the laying of the charges and the commencement of the trial. It took some 3 years for the charges to be the laid and some 2 ½ years for the trial to commence, a total delay of some 5 ½ years.
· Each of you has made admirable progress in reconstructing your lives in the long time that has passed since the offences were committed. Mr Tuvale, you got involved in some further trouble but have been of good behaviour for 4 years. Mr Maulio and Ms Poluleuligaga, you have not re-offended and have been of good behaviour.
· The DPP does not seek a term of imprisonment for any of you.
These circumstances all suggest I should give less weight to the sentencing considerations of general and specific deterrence, and denunciation, and greater weight to rehabilitation and remorse, than the Court normally would where the offence is one of affray.
Mr Tuvale and Mr Maulio, the fact you have each committed a crime of violence in addition to the crime of affray demands you be dealt with differently to Ms Poluleuligaga.
I have considered whether to impose upon each of you a term of imprisonment for committing these further offences. All of the circumstances I have already specified apply with almost equal force in this context. The DPP does not seek prison terms as sentences for these further offences. Although you respectively intentionally caused injury and recklessly caused serious injury to Mr El-Haouli and Mr Shomshe, the injuries and consequences suffered by these two men were in the major part caused by the actions of others and not by either of you. Therefore I consider imprisonment to be inappropriate.
Ms Poluleuligaga, I consider it to be appropriate to release you without conviction. Mr Tuvale and Mr Maulio, I consider it to be appropriate to release you without conviction also. I do so by reason of the combination of the factors that I have mentioned. The DPP does not seek convictions as part of your sentences. I believe each of you sincerely understands the seriousness of what you have done and intends to be a law-abiding member of the community and not a criminal. You have each demonstrated your capacity to do so and a conviction could harm your further rehabilitation.
Ms Poluleuligaga, I have considered whether to fine you or to release you on an undertaking. I think the nature of your involvement in the incident does not warrant a fine and little would be achieved by imposing one in any event. I have condemned your criminal conduct and I am quite sure you understand its gravity. I consider no fine I could impose is necessary to strengthen either my condemnation or your understanding. The DPP does not seek a fine as part of your sentence. Since the incident, you have made a significant contribution to the community as a sportswomen with outstanding leadership skills. You intend to continue to make this contribution in the future. I think the appropriate response to your circumstances is to place you on a bond to be of good behaviour.
Mr Tuvale and Mr Maulio, your further crimes both aggravate the affray of which you are both guilty and require additional punishment in themselves. In your cases I consider you should both perform unpaid community work pursuant to a community-based order. You have both consented to this course and I take this into account as a factor that itself stands in your favour. Performing unpaid community work will allow you to put something back into the community by way of reparation in part for the wrong that you have both done. A community-based order will also allow you both to demonstrate your capacity to be of good behaviour for the period of the order, which will allow me to assess whether you are able to live up to the trust that I intend to place in you. The DPP does not submit it would be wrong to place you on community-based orders as the sentence for your crimes.
I have considered whether to differentiate between you for the purpose of the sentence to be imposed. In my view the differences between you are small and cut in different directions. I will therefore not treat you differently. Mr Maulio, in treating you in the same way as Mr Tuvale, I have particularly taken into account your excellent behaviour since the incident.
Mr Tuvale, Mr Maulio and Ms Poluleuligaga I will now announce my sentence.
Mr Tuvale, I am satisfied you are guilty of the crime of affray in that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. I am also satisfied you are guilty of the crime of intentionally causing injury to Mohmoud El-Haouli at Broadmeadows on the same date. For each of these crimes you will be placed concurrently and without conviction on a community based order until Wednesday 23 May 2007 or earlier expiration under s. 39(6) of the Sentencing Act 1991. The order will be subject to the mandatory core conditions specified in s. 37 (1). The order will also be subject to the program condition specified in s. 38(1)(a) that you perform unpaid community work as directed. Pursuant to ss. 39(2) and 109(3)(b), I determine 160 hours to be the number of hours of unpaid community work that you must perform.
Mr Maulio, I am satisfied you are guilty of the crime of affray in that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. I am also satisfied you are guilty of the crime of recklessly causing serious injury to Murat Shomshe at Broadmeadows on the same date. For each of these crimes you will be placed concurrently and without conviction on a community based order until Wednesday 23 May 2007 or earlier expiration under s. 39(6) of the Sentencing Act. The order will be subject to the mandatory core conditions specified in s. 37 (1). The order will also be subject to the program condition specified in s. 38(1)(a) that you perform unpaid community work as directed. Pursuant to ss. 39(2) and 109(3)(b), I determine 160 hours to be the number of hours of unpaid community work that you must perform.
Ms Poluleuligaga, I am satisfied you are guilty of the crime of affray in that at Broadmeadows on 18 November 2000 you unlawfully fought and made an affray. I release you without conviction and adjourn the proceedings for a period of 12 months on you giving an undertaking on the following conditions:
(1) You must appear before the Court if called upon to do so during the period of the adjournment.
(2) You must be of good behaviour during the period of the adjournment.
On you giving the undertaking with these conditions, the proceedings concerning you will be adjourned until Wednesday 23 May 2007. If the Court is satisfied that you have observed the conditions of your undertaking, the charge of affray will then be dismissed without any further hearing of the proceedings. If the Court is not satisfied that you have observed the conditions of your undertaking, you will be brought back to this Court and may be punished on the charge of affray that has been adjourned. You may also be punished for failing to be of good behaviour.
---