R v Latuhoi

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0218

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NIKOLA LATUHOI	Accused

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2023
DATE OF SENTENCE:	15 March 2024
DATE OF PUBLICATION:	25 March 2024
CASE MAY BE CITED AS:	DPP v Latuhoi
MEDIUM NEUTRAL CITATION:	[2024] VSC 136

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CRIMINAL LAW — Sentence — Manslaughter — Unlawful and dangerous act — Drive‑by shooting — Shots fired into crowd at night — Unknown shooter — Accused was driver of car — Serious example of manslaughter — Late guilty plea — Opportunity to withdraw — High moral culpability — Unwilling to identify shooter — No diagnosable intellectual impairment or mental illness — No drug or alcohol use disorder — No meaningful remorse — Guarded rehabilitation prospects — General deterrence, denunciation and just punishment important — R v Verdins (2007) 16 VR 269 — Sentencing Act 1991 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	E Ramsay P Pathmaraj	Office of Public Prosecutions
For the Accused	D Gurvich KC V Vuu	Radovic Lawyers

HIS HONOUR:

Introduction

Nikola Latuhoi, on 20 July 2023, you pleaded guilty to killing Ikenasio Tuivasa just before midnight on 27 February 2021.

At that time, a group of people had gathered in a carpark at the front of the All‑Star Lounge bar in Ravenhall. Shortly before midnight, a Toyota Hilux [‘the Hilux’] pulled up outside the venue. An unknown person sitting in the passenger seat of the Hilux discharged four or five shots into the group of people. One of the bullets hit Mr Tuivasa in the skull, fatally wounding him. Another bullet hit a different man, Reza Amir, in the leg.

You were the driver of the Hilux at the time. You were charged with murder and attempted murder. You pleaded not guilty to both of these charges at the time of your committal hearing. You subsequently agreed to plead guilty to one charge of manslaughter, clearing the indictment.

The maximum penalty for the offence of manslaughter committed at the time of your offending is 25 years’ imprisonment. The maximum penalty for this offence increased from 20 years’ imprisonment to 25 years’ imprisonment on 4 June 2020.

Background
The deceased — Ikenasio Tuivasa

Mr Tuivasa was 35 years old at the time of his death. He was born in Samoa, but migrated to Australia in 2013. He had no prior criminal history.

At the time of his death, Mr Tuivasa was in a long‑term relationship with his partner, MP. They had five children together, all of whom are currently under 14 years of age. The evidence placed before the court indicates that Mr Tuivasa was a family man, spending most of his time caring for his partner, his children and his elderly parents. On occasions, he would venture out with his younger brothers and friends. It was on such an occasion that he was killed.

You did not know Mr Tuivasa, and it appears he was the unintended victim of your actions. He was an innocent man, out socialising with family and friends, whose life was brutally cut short.

Circumstances of the offending
Lead up to the shooting

Mr Tuivasa had spent the evening at his cousin’s house, watching a boxing match and having a few drinks. Once the match had ended, he and others attended the All‑Star Lounge along with his brother, James Tuivasa. The All‑Star Lounge [‘the Lounge’] is a bar and shisha lounge which was located at Unit 1, 34 Westwood Drive, Ravenhall. It has since shut down.

As it turns out, Mr Tuivasa’s group were declined entry to the venue, but remained in the carpark, drinking and socialising. They were joined by more people as the night wore on. At the time of the shooting, roughly 12 people were standing outside the Lounge.

The offending

The events that followed were witnessed by the other victim of the shooter’s actions, Mr Amir. He was standing with others between the group and the roadway. Mr Amir heard the screech of brakes, looked up, and saw a car stopped across the driveway of the Lounge. He did not recognise you.

Both you and the person who fired the shots were wearing face coverings. Mr Amir has given evidence that the shooter said words to the effect of “fuck youse”, and then pointed a gun towards the group and fired four or five shots. As I have already stated, one bullet hit Mr Amir in the leg. The other hit Mr Tuivasa in the head.

Mr Tuivasa’s cousin, Philip Lalotoa, was standing next to Mr Tuivasa at the time of the shooting. He also saw the Hilux pull up beside the group and heard one of the occupants say something. He then saw the shooter raise his right hand. Mr Lalotoa dropped to the ground and heard five shots in quick succession.

Mr Lalotoa then described looking up to see Mr Tuivasa lying on the ground in front of him. He saw blood all over Mr Tuivasa’s face and tried to rouse him, but there was no response.

Similarly, Mr Tuivasa’s brother, James Tuivasa, saw the Hilux arrive. He remembers it stopping four or five steps away from Mr Tuivasa’s group. The window on the passenger side was completely down, and he saw a long, skinny metal object resting on the door frame. He then heard five shots, and immediately ran to his car. However, before he could drive away, he saw others trying to pick up his brother, Mr Tuivasa. He assisted the others in putting him into a car and driving him to Sunshine Hospital.

Mr Tuivasa’s death

Mr Tuivasa arrived at Sunshine Hospital and was assessed as having suffered a gunshot wound to his left temple. He was in cardiac arrest when he arrived. Mr Tuivasa was given emergency treatment and CPR. However, he was pronounced dead at 12:37am on 28 February 2021.

The other victim, Mr Amir, was taken by ambulance to the Royal Melbourne Hospital. He had a gunshot wound to his right thigh. Mr Amir received treatment and was discharged on 28 February 2021.

Post-offence conduct

After you had fled from the scene, and during your subsequent disappearance, your mother, Talanga Latuhoi, had several interactions with you relating to the shooting. At the time of the shooting, you were living with her and the rest of your family.

Your mother has given evidence that, one night in February 2021, you went to work and never came home. Mrs Latuhoi thought this was unusual, because you always came home and slept after work. She says you were missing for the next two weeks. She could not get in touch with you, as your phone was switched off.

After two weeks, you contacted your mother via Facebook Messenger. You said to her, “It’s okay mum, I had to get out of Melbourne just for a short time and will be home soon”. You changed your phone number and deactivated your Facebook account.

However, you continued to contact your mother sporadically, always via a different phone number. In the last week of March 2021, you made a video call to her. During the conversation, you told your mother that an incident you were involved in had been on the news. In relation to the incident itself, you said the following:

I was involved in a fight and someone died. It’s not me, it’s someone else, but I took dad’s van and I was driving.

Two weeks later, you visited your family home. You spoke with your mother again, and said:

There was a fight and someone died… sorry mum, it wasn’t me that did it, it’s someone else, but I took dad’s van.

The van you were referring to was the Hilux, which belonged to your father. Your mother had recognised the van in a news report about the shooting. She sent you a message, pleading with you to go to the police. She told you that the police had the van. You replied, assuring her you would go to the police.

In late June 2021, you again visited your family home. You told your mother that you were going to Sydney to say goodbye to your son, and that you would then hand yourself into the police in Sydney. Your mother was relieved, and told you to go the police and tell the truth. You replied: “I did this by myself”.

However, you did not hand yourself into police as you said you would.

The police investigation
Post-mortem examination

A post‑mortem examination was conducted by Dr Linda Iles, a forensic pathologist at the Victorian Institute of Forensic Medicine, on 28 February 2021.

Her investigation concluded that Mr Tuivasa’s cause of death was a single gunshot wound to the head.

CCTV footage

The police were able to retrieve CCTV footage of the events surrounding Mr Tuivasa’s death. Footage retrieved from various cameras near the Lounge shows the Hilux driven by you turning from Ballarat Road into Westwood Drive and continuing towards the All‑Star Lounge. The Hilux stops for approximately 20 seconds on the road at 11:58pm, at which time the prosecution alleges the shots were fired. However, the shooting is not visible from the video available. The Hilux is then seen leaving the scene via Westwood Drive.

The Toyota Hilux

The Hilux used during the offending was subsequently sold by an unknown associate of yours. On or around 14 March 2021, JE paid $500.00 for it. The Hilux had been stripped of registration plates.

JE subsequently committed some offences in the Hilux, involving the theft of petrol. This led to the car being seized by police on 23 April 2021. Victoria Police tried to contact you, as you remained the registered owner of the car. However, you did not return their calls.

The Hilux was subsequently seized on 24 April 2021 under the provisions of a search warrant.

Mobile phone records

During the investigation into the shootings, the police also obtained access to your mobile phone records. The records show that your device connected to various mobile phone towers near the Lounge at the time of the shooting.

Crime scene analysis

On 28 February 2021, a firearms examiner conducted a forensic and ballistic examination of the crime scene. During the examination, an area containing blood was detected near Mr Tuivasa’s car, and it was established that this is where he had collapsed after being shot.

Approximately 10 meters from this point was another smaller quantity of blood. The prosecution alleges this blood is from Mr Amir, and that it indicates where he was standing at the time he was shot in the leg.

Four fired cartridge casings from a .22 calibre firearm were seized from the area. The bullet that was retrieved from Mr Tuivasa’s body and from Mr Amir’s leg were also seized. An unfired bullet of a different calibre was also found on the ground.

The ballistic analysis concluded that:

(a) the four fired cartridge casings recovered from the scene were all Federal Brand .22 calibre rounds that had been discharged by the same firearm; and

(b) the bullets recovered from Mr Tuivasa and Mr Amir had probably been discharged by the same firearm and had characteristics consistent with those seen on Federal Brand ammunition.

Arrest and interview

You were arrested for unrelated matters on 13 July 2021, about four and a half months after your offending. Later that day, you were informed you were also under arrest for the murder of Mr Tuivasa.

You made no comment during your police interview and were remanded in custody.

You have remained in custody since that date.

Procedural history

Your plea of guilty was entered on 20 July 2023, being more than two years after your arrest and just four days prior to the start of your trial.

During the years between your arrest and plea of guilty, you conducted a contested committal hearing in the Magistrates’ Court of Victoria. At the conclusion of that hearing, you entered pleas of “not guilty” to the offences you then faced. You denied being the driver of the Hilux.

It was only at the time that you pleaded guilty to the charge of manslaughter on 20 July 2023 that you formally and publicly acknowledged your role in Mr Tuivasa’s death.

Victim Impact Statements

The court has not received any Victim Impact Statements from Mr Tuivasa’s family and friends.

I will refrain on speculating as to why this may be the case, but I am certain that the absence of statements is not a reflection of Mr Tuivasa’s importance to his loved ones. Rather, the available evidence shows that Mr Tuivasa was a committed family man. His partner, children, parents and friends clearly loved him and relied upon him.

Personal circumstances

You were 26 years old when you killed Mr Tuivasa. You are now 29.

Childhood and upbringing

You were born in New Zealand to parents of Tongan background. Your parents worked as unskilled labourers and, after your birth, decided to migrate to Australia to improve their financial and employment prospects. You therefore moved to Australia with your parents before your first birthday. You are now an Australian citizen, having lived here for nearly all your life.

Your father’s health deteriorated shortly after your family moved to Australia. He suffered numerous life‑threatening heart attacks, and eventually needed to cease work. As a result, your family was financially dependent on your mother’s employment as a full‑time factory worker for some time.

As to your family structure, you are the fourth child in a sibship of seven.

Through your family, you have been involved in the Free Wesleyan Church of Tonga for much of your life. Your upbringing has been described as “heavily spiritual”.

Education and employment history

As to your education, you attended mainstream schools, and graduated in 2012 with a Victorian Certificate of Applied Learning [‘VCAL’] from Werribee Secondary College. The evidence before the court indicates that rugby was your main focus throughout your schooling. You competed for Victoria in the Rugby State Championships for three years during high school. After you graduated, you moved to New South Wales to play in the National Rugby League with the Manly Warringah Sea Eagles. You were also employed as a labourer during this time.

Your rugby career continued to blossom when you were recruited to play for a French club in southern France. You played in France for three seasons between 2015 and 2017.

At the end of 2017, you retired from rugby and returned to Melbourne. You did so to care for your father, who remained seriously ill.

When you returned to Melbourne, you began working with your brother in logistics as a forklift driver and unloader of trucks. This often involved night shifts.

Relationship history

As to your relationships, your first long‑term personal relationship began when you were 18. You have one child from this relationship, a son who was born in 2015 when you were 22 years of age.

This relationship came under strain while you lived in France, as your partner did not accompany you overseas. When you returned to Australia in 2017, you and your partner decided to part ways amicably. It was agreed that you would become your son’s primary carer. As a result, your son lived with you from 2017 until January 2021, when he travelled to Sydney to visit his mother. He has remained there with his mother in Sydney, on account of your offending.

Prior to the offending occurring, you commenced a new relationship. Your counsel stated that this relationship has been tested by the length of your remand, and will be further tested by your sentence.

Criminal history

You have no prior criminal convictions.

Mental health

The court received a report on your mental health from Luke Armstrong, a consultant psychologist at JLA Consulting Psychologists. Mr Armstrong has many years of experience working with individuals presenting with complex psychiatric and substance use disorders. He conducted a lengthy face‑to‑face interview with you on 20 November 2023, and also spoke with your mother and sister. Mr Armstrong was of the opinion that you were honest with him and did not present a false narrative of your life.

Childhood and adolescence

Mr Armstrong notes that your upbringing, despite your father’s health problems, was relatively stable. There was no family violence, alcohol or drug use within your home. You told Mr Armstrong that you respected your parents, and whilst you feared being disciplined, corporal punishment consisted of an occasional slap. You reported a very strong and enduring attachment to your parents, particularly your father.

Mr Armstrong concludes that there is no evidence you experienced emotional or behavioural problems at home. He notes that while your upbringing was somewhat impoverished, you were a happy child who was grateful for what he received and whose essential needs were met. You told Mr Armstrong that you never went without.

Likewise, with respect to your education, Mr Armstrong notes that you did not have any academic difficulties, social difficulties, behavioural issues or problems with authority figures. In summary, you remained stable throughout your schooling and adolescence, maintaining a strong connection with your family.

You also reported to Mr Armstrong that you have no criminal links. You candidly acknowledged to him that your first cousin is a Sergeant at Arms for the Comancheros outlaw motorcycle gang, but reported that you did not associate with him often. On one occasion, in 2019, you attended an end‑of‑year party hosted by the Comancheros with your cousin. However, you reported that you left early and have had no subsequent association with the Comancheros.

Cognitive functioning and mental health

Mr Armstrong used various tests to measure your general intellectual ability. He concluded that your general cognitive ability is within the borderline range of intellectual functioning, with your overall thinking and reasoning abilities exceeding only four percent of people your age. He is of the opinion that you may experience difficulty in keeping up with your peers in situations that require thinking, comprehension and reasoning. Your memory and processing speed fall within a similar borderline range.

However, Mr Armstrong opines that you do not have a diagnosable intellectual impairment or disability.

In relation to your mental health more broadly, Mr Armstrong notes that your upbringing was stable and that your strong family attachments are a protective factor. He also observes that there are no indicators of child, adolescent or adult deviance in your life. Although you may be prone to anxiety, lack self‑confidence and experience a sense of depression in relation to your future, Mr Armstrong opines that you have no diagnosable mental health condition. However, he notes that you may require significant mental health support throughout any custodial sentence.

Against this background, Mr Armstrong concludes that your offending was out of character. He is also of the opinion that, given your borderline intellectual functioning and poor social judgment skills, there is a risk of you being manipulated by more sophisticated offenders.

Drug and alcohol use

You reported to Mr Armstrong that you have a history of drinking socially, but you denied alcohol misuse. You also admitted to some experimentation with illicit drugs before your arrest, but denied using them before that. Mr Armstrong has found no evidence to contradict this, and therefore does not believe you have a substance use disorder.

Insight into offending

Mr Armstrong is of the opinion that, given your present court appearances and borderline intelligence, you have yet to develop a meaningful sense of remorse for your actions.

However, he believes you have the capacity for remorse, and that you show some level of insight into your offending. You told Mr Armstrong that you think about the fact that, if you had not agreed to drive the Hilux on the night of Mr Tuivasa’s death, his children would still have their father around. You are also aware that your offending has brought your family into disrepute in the Tongan community.

Risk assessment

Mr Armstrong opines that you have positive rehabilitation prospects. This is on account of your unremarkable background, your conduct prior to your offending, your reflections regarding your offending, and the fact that you enjoy the ongoing support of your family.

Submissions for Latuhoi

Your counsel provided the court with written submissions, which were supplemented with oral argument at the plea hearing.

Objective gravity of offending

It is agreed that you are to be sentenced for manslaughter on the basis that you knew the shooter, your co‑offender, was going to fire shots toward a crowd of people, which is an unlawful and dangerous act. Your counsel conceded that you assisted the co‑accused in committing this act, by driving him to the location, intentionally stopping the car while the shots were fired, and then driving away. It was acknowledged on your behalf that your offending was serious.

However, your counsel advanced multiple factors that were said to lessen the gravity of your actions:

(a) while you were aware the co‑accused wanted to travel to the Lounge to settle a dispute with violence, you only became aware of your co‑accused’s firearm and his plan to fire shots into the crowd shortly before the shots were fired (this was later conceded to be “a matter of seconds before the shooting took place”);

(b) there was a limited opportunity to withdraw from the situation;

(c) you allegedly did not know anyone had been hit, or that Mr Tuivasa had been shot in the head;

(d) you did not have any ill‑will towards Mr Tuivasa or Mr Amir;

(e) there was limited planning and preparation on your part;

(f) your general cognitive ability and intellectual functioning is low, therefore impeding your ability to quickly reason during the offending; and

(g) you remain unable to confirm the identity of your co‑offender because of a genuine fear for your safety, both in custody and in the community.

Plea of guilty, remorse and criminal history

It was noted on your behalf that you have pleaded guilty, and that your plea has utilitarian value. Although you entered your plea on 20 July 2023, more than two years after your arrest and just four days prior to the start of your trial, your counsel submitted that it should be considered as one made “at the earliest reasonable opportunity”. It was noted that, until at least 15 December 2022, you were facing charges of murder and attempted murder, both of which were put on a different factual basis to the facts presently alleged against you. Your counsel submitted that your plea followed shortly after the consolidated charge of manslaughter was made available to you.

However, in oral submissions, your counsel accepted that you initially filed a defence response that stated you were not the driver of the vehicle. The submission that your plea was made “at the earliest reasonable opportunity” was moderated slightly by your counsel.

As to your remorse, it was submitted that you are profoundly sorry for what you have done. The court was referred to Mr Armstrong’s report and various character references, which were described as supporting this submission. Character references from your sister, mother, former partner and previous church pastor are relied on. In broad terms, they speak to your stable and loving childhood, your religious background, your sense of loss after the death of your father (who passed away from cancer while you were remanded in custody) and your feelings of remorse over the death of Mr Tuivasa. It is noted that the references describe you as a respectful, reliable man who provided significant support to your family.

During oral submissions, the court queried how much weight should be put on your remorse, given Mr Armstrong noted that you are “yet to reconcile that [your] conduct driving the vehicle led to the death of the victim”, and the fact that you have not disclosed the identity of the co‑offender who fired the shots. In response, your counsel acknowledged that Mr Armstrong’s report had neglected to deal with your inconsistent versions of events.

Application of Verdins

It is acknowledged that R v Verdins[1] and the principles contained within that case have very limited application to you, given Mr Armstrong has concluded you were not suffering from any diagnosable mental illness at the time of the offence, nor are you suffering from one now. However, your counsel submitted that principle six should be applied in a limited fashion, given Mr Armstrong noted that there is a high risk you may develop more serious mental health problems after you are sentenced. Principle six of Verdins states that where there is a serious risk that imprisonment may have a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[1]R v Verdins (2007) 16 VR 269 (Maxwell P, Eames and Neave JJA) (‘Verdins’).

Age and rehabilitation prospects

It is noted that you are 29 years old and that you had no prior criminal history at the time of your offending. This is your first time in custody, a significant proportion of which was served during the Covid‑19 pandemic and associated prison lockdowns.

Your counsel submitted in written submissions that you have “very good to excellent” rehabilitation prospects. This was later moderated in oral submissions to “good to very good” prospects. It was noted that you are a person of previous good character, strong family ties and a robust employment history. The court was again referred to the report of Mr Armstrong and the character references provided on your behalf. Further, it was noted that you have worked continuously since arriving at Port Philip Prison, taking up cleaning and billeting roles. You have also completed two courses at the Kangan Institute in cleaning, undertaken a number of other courses and are on the waitlist for various Certificate III qualifications.

It was submitted that you intend to resume caring for your son, once you are released from custody. It was noted that your son is currently unsettled and experiencing major behavioural issues associated with your imprisonment.

Sentencing practices

Your counsel referred the court to the decision of the Court of Appeal in Director of Public Prosecutions v Yucel,[2] which was said to be comparable to the present circumstances. In Yucel, the accused pleaded guilty to manslaughter by an unlawful and dangerous act, in circumstances where he shot the victim in the leg and upper body. He had originally been charged with murder. However, a compromise was reached between the prosecution and the defence, whereby the accused agreed to plead guilty to manslaughter in exchange for the withdrawal of the murder charge. This compromise arose due to the prosecution’s inability to disclose material that may well have been exculpatory. The documents, which were likely to be of substantial assistance to the defence, were unable to be disclosed due to a ruling that they were protected by public interest immunity.
[2]DPP v Yucel [2019] VSCA 53 (Kaye, Niall and Weinberg JJA) (‘Yucel’), on appeal from R v Yucel [2018] VSC 506 (Taylor J).

The trial judge accepted that the accused was in genuine fear of his life, that this fear was reasonable and well‑founded, and that he shot the victim in circumstances that were a “notch” above self defence. Moreover, it was accepted that the accused was aiming the gun at the ground, but that the victim had leant forward and positioned himself in the line of fire. It was also held that the accused was genuinely remorseful. He was sentenced to five years’ imprisonment, with a non‑parole period of three years.

The Director of Public Prosecutions appealed the sentence on the basis that the sentence was manifestly inadequate. The Court of Appeal upheld the trial judge’s decision, ruling that the “unusual”, “unique” and “exceptional” factual circumstances were such that the sentence was entirely within range and not manifestly inadequate.

Your counsel conceded that the facts of Yucel are distinguishable from the facts of your offending. However, the court was urged to note the Court of Appeal’s reasoning that manslaughter can be committed in a variety of different ways, involving significantly different levels of moral culpability.

Your counsel also referred to the case of Director of Public Prosecutions v Williams and Godfrey,[3] which was raised in the prosecution’s submissions (and is summarised further below).[4] It was submitted that the facts were analogous to your offending, and particular emphasis was placed on the trial judge’s reasoning in relation to the timing of the pleas of guilty entered by the accused individuals:

Your pleas of guilty came at a late stage in these proceedings. However, that must be viewed in the context that you were both charged with murder and were not willing to plead guilty to that offence. Counsel on your behalf have submitted that your pleas should be regarded as having been entered at the first available forensic opportunity, that is, once the prosecution offered a plea for the appropriate charge.
I also note that the trial in this matter was listed to commence on 10 March 2020 and the State Government first declared the State of Emergency in response to COVID‑19 on 16 March. If this matter had proceeded to trial as planned, in all likelihood, it either would not have started or, if started, may not have been able to be concluded. Therefore, in my opinion, for that reason alone, the finalisation of this matter through your guilty pleas means their utilitarian value is significant.
…
The fact that you pleaded guilty does not, of itself, demonstrate remorse. I remain unpersuaded that you, Craig Williams, are remorseful despite your counsel’s suggestion. As to you, John Godfrey, there may be an element of remorse in your plea of guilty.

[3]DPP v Williams & Godfrey [2020] VSC 483 (Lasry J) (‘Williams and Godfrey’).

[4]See paragraphs 99–102 below.

Finally, reference was made to the prosecution’s reliance on Director of Public Prosecutions v Phillips,[5] and to the principle that an unlawful and dangerous killing of a human being by the deliberate presentation and firing of a weapon is a particularly serious instance of manslaughter that demands rigorous punishment. Your counsel did not cavil with this proposition, but stressed that every case is different and that a sentence of around six years may be appropriate in the present circumstances.
[5]DPP v Phillips [2009] VSCA 68 (Maxwell ACJ, Nettle and Buchanan JJA) (‘Phillips’). See paragraph 105 below.

Submissions for the prosecution

The prosecution provided written submissions, supplemented by oral submissions, that responded to the arguments made on your behalf.

Objective gravity of offending

At the outset, the prosecution noted that the basis of your plea is that you knew your co‑offender, who was sitting in the front passenger seat of your car, was going to fire a loaded firearm into a crowd of people standing outside the Lounge. This is the unlawful and dangerous act for the purposes of the offence of manslaughter.

Although it is conceded that you only became aware of the plan to fire these gunshots shortly prior to the incident, the prosecution submits that you intentionally assisted the co‑offender by driving this person to the Lounge in your car, stopping while the shots were fired, and then driving the co‑offender away from the scene. Of course, at the same time you were also driving yourself away from the scene of your crime.

It is submitted that that the following aspects make the gravity of your offending particularly serious:

(a) you knew the firearm was to be deployed in a highly culpable manner, namely being deliberately fired into an unsuspecting crowd outside a busy public venue in the middle of the night. There was a real and inherent risk that the bullets would hit people, as demonstrated by the death of Mr Tuivasa and the injury caused to Mr Amir;

(b) although you only became aware of the co‑offender’s intention to use a gun shortly before the incident, you knew from the moment you first picked your co‑offender up that the aim of this person was to commit an act of violence. Your knowledge of that plan is evidenced by the fact that you covered your face some time before the shots were fired. It is not possible to say exactly when. The prosecution submit you were a party to the plan to commit violence from the time you left the house you came from;

(c) your role in the carrying out of the offending was crucial to its execution. It is submitted that, upon learning of the plan, you could have decided not to have stopped your car outside the Lounge. Instead, the CCTV footage shows your car slowly creep up to the Lounge and then stop. The prosecution submit that your actions gave the co‑offender the opportunity to carry out the plan within the safety of the car;

(d) the firearm used by the co‑offender was a large rifle, which likely would have either been visible to you or, if hidden by the co‑offender, taken some time to retrieve and aim. Given the co‑offender was seated in the front passenger seat next to you, the prosecution submit that you were therefore on notice about the presence of the firearm prior to stopping the car; and

(e) your post‑offence conduct elevates your moral culpability. You sped away after the shooting, facilitating the co‑offender’s escape. Further, you sought to cover up your role in the offending by changing your phone number, deactivating your Facebook account and disposing of the Hilux. You took active and considered steps to conceal your involvement in the incident.

In summary, the prosecution submits that your decision to intentionally assist the co‑offender with their plan to commit an act of violence, which you came to realise in the moments prior involved firing a gun into a group of people outside a crowded venue in the middle of night, renders your actions at the high end of the range of seriousness for the offence of manslaughter. It is also noted that Mr Tuivasa’s death has had a profound impact on his family, including his five young children. Your moral culpability is therefore said to be high.

Plea of guilty, remorse and criminal history

As to your plea of guilty, the prosecution disputes your plea was made at the earliest reasonable opportunity. Rather, it is submitted that your plea was entered at a relatively late stage, being four days before your trial was listed to commence. Prior to this point, you took part in a contested committal hearing in the Magistrates’ Court of Victoria. The prosecution notes that you entered a plea of “not guilty” at the conclusion of that hearing. Further, in your Defence Response, that was filed in anticipation of your trial, you denied being the driver of the car from which the bullets were fired during the shooting. In other words, up until you entered a plea of guilty to the charge of manslaughter, you sought to avoid responsibility for your actions.

Nevertheless, the prosecution concedes that, despite the lateness of your plea, it retains some utilitarian value. By pleading guilty, you obviated the need for the prosecution to call witnesses at the trial to give evidence specifically in respect of your involvement in the killing. As to your remorse generally, the prosecution acknowledges that there is some evidence that you regret your actions, as noted in Mr Armstrong’s report. However, it is submitted this should be considered in the context of your late plea of guilty, lack of co‑operation with authorities and your refusal to give up the identity of your co‑offender. Further, the prosecution drew the court’s attention to Mr Armstrong’s finding that you have yet to develop a meaningful sense of remorse for your actions.

Application of Verdins

The prosecution submits that Verdins is not enlivened in your case. It is noted that you do not have an intellectual disability, your intellectual functioning is within the standard range (albeit, borderline), and you do not have a mental illness. Given this, the prosecution submits that there is no evidentiary basis for the court to ameliorate the application of general deterrence or specific deterrence.

As to principle six, and Mr Armstrong’s opinion that you are at high risk of developing more serious mental health problems in the aftermath of your sentencing, the prosecution contends that this is entirely speculative. The court’s attention was drawn to the fact that Mr Armstrong provided no evidence to support his opinion, and was not made available for cross‑examination at the plea. Further, it was submitted that the risk of developing mental health problems identified by Mr Armstrong does not go beyond the likely general effect of a prison sentence on the average offender.

Age and rehabilitation prospects

The prosecution submits that it is not open to the court to find that you have “very good to excellent” prospects of rehabilitation, nor “good to very good” prospects. It was noted that your initial arrest, four months after the death of Mr Tuivasa, was because you were found by police to be driving a stolen car and carrying a machete. You did not give yourself up, despite your assurances to your mother. Further, you sought to evade responsibility and the detection of law enforcement.

While it is conceded that you are young and that you do not have any prior convictions, and that this bodes well for your rehabilitation prospects, the prosecution submits that in the absence of fulsome and meaningful remorse, your prospects are curtailed. It is noted that, on your own admission, you have been sanctioned in prison twice for fighting with other inmates. The prosecution submits that, on balance, the court can only be “cautiously optimistic” about your prospects of rehabilitation.

Sentencing practices

As to sentencing practices, the prosecution noted that there are remarkably few cases in which a person who is not the principle offender is charged with manslaughter involving the use of a firearm. A list of cases was provided to the court, however it was conceded that only two were particularly relevant.

The first was the decision of this court in Williams and Godfrey.[6] In that case, both offenders pleaded guilty to manslaughter, after having originally being charged with murder. Williams, the primary offender, had shot the deceased as the deceased sat in a motor vehicle. Williams had significant animus towards the deceased, and he had exchanged several threats of violence with the deceased in the lead up to the shooting.
[6]Williams & Godfrey [2020] VSC 483 (Lasry J).

Williams, and the co‑offender, Godfrey, made plans to confront the deceased. Williams armed himself with a .22 rifle, and Godfrey was given a handgun. The deceased arrived at the scene with his associates in a car. He was armed with a car part, got out of his car and approached Williams and Godfrey. However, when he saw Williams had a gun, he retreated. Before he could leave, Williams fired into the vehicle, killing the deceased. After the offending, Williams destroyed and disposed of the CCTV, and Godfrey buried the handgun.

Godfrey was sentenced on the basis that he was complicit, having become involved somewhat reluctantly. The court noted that he had no prior convictions and had experienced a difficult childhood, but also took into account that his plea had occurred at a late stage in the proceedings. Godfrey was sentenced to seven years’ imprisonment, while Williams was sentenced to 12 years’ imprisonment.

Although the prosecution concedes that there are some similarities between the case and the present circumstances, it is submitted that there are also distinguishing factors that elevate your offending above Godfrey’s. It is noted that, contrary to your complete denial of any involvement in the offending, Godfrey had made some admissions to his participation in the shooting, and had only put forward a defence of self‑defence. Further, Godfrey did not facilitate the offending in the manner that you did. You also cannot avail yourself of some of the mitigating factors available to Godfrey.

The case of R v Cicekdag[7] was also referred to by the prosecution. In that case, two men, including the offender, confronted the deceased at his home armed with a .22 calibre handgun to reinforce a demand that he pay a drug debt. Notably, the deceased was the offender’s cousin. At some point, the deceased was shot at close range and the offender fled. The case was put on the basis the offender was “involved in the commission of” an unlawful and dangerous act that caused death, not that he discharged the firearm. He was ultimately sentenced to nine years’ imprisonment with a non‑parole period of five years, having demonstrated hardship, genuine remorse, strong prospects of rehabilitation and a limited prior history. Again, whilst this case is instructive in that it relates to a manslaughter charge where the offender was not himself the shooter, his personal circumstances and the broader circumstances of the offending are distinguishable.
[7]R v Cicekdag [2017] VSC 781 (Croucher J).

Finally, as to the defence’s reliance on Yucel,[8] the prosecution submits it is a unique case and readily distinguishable from the present facts. It is argued that it is of no assistance in your circumstances.
[8]Yucel [2019] VSCA 53 (Kaye, Niall and Weinberg JJA).

In sum, the prosecution submits that it is well established that manslaughters, of this kind, are amongst the most serious offences to come before the courts. As indicated, the prosecution relies on the decision of Justice Nettle in Phillips,[9] with whom Acting Chief Justice Maxwell and Justice Buchanan agreed. In Phillips, Justice Nettle reasoned:[10]

Short of murder and manslaughter by reason of provocation, the unlawful killing of a human being by the deliberate presentation and firing of a weapon at him or her is amongst the most serious offences against the person. Regardless of the absence of murderous intent, the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous. It follows that any notion that the killing of a human being in that fashion falls towards the lower end of the range of seriousness is seriously misconceived.
[9]Phillips [2009] VSCA 68 (Maxwell ACJ, Nettle and Buchanan JJA).
[10]Ibid [35] (Nettle JA, with whom Maxwell ACJ and Buchanan JA agreed).

Custody status and pre-sentence detention

The prosecution accepts that pre‑sentence detention at the time of the plea hearing was 928 days. That period is now 976 days, not including today.

It is also conceded by the prosecution that Worboyes v The Queen[11] retains some application given the timing of your plea and the conditions you experienced in custody during the Covid‑19 pandemic.
[11]Worboyes v The Queen [2021] VSCA 169 (Priest, Kaye and Forrest JJA) (‘Worboyes’).

Analysis and discussion
Sentencing factors
Maximum penalty

The maximum penalty for manslaughter is 25 years’ imprisonment. It is not a standard sentence offence. I note that the maximum penalty for manslaughter increased from 20 years’ imprisonment to 25 years’ imprisonment in 2020.

As manslaughter is a category 2 offence under the Sentencing Act 1991 [‘the Act’], section 5(2H) requires the court to impose a custodial order unless one of the exceptions set out in the Act applies. None of those circumstances appear to be relevant here, and no party argued otherwise.

Seriousness of the offending

As to the seriousness of your offending, the following can be concluded.

At the time the shooting occurred, you and your co‑offender were wearing face coverings, which points to a degree of premeditation, at least to the effect that you knew that an unlawful act or acts were about to happen, and you and your co‑offender had decided to attempt to disguise yourselves. However, I accept that there is no evidence that the covering of your face occurred more than a short time before the shots were fired. As I have observed, it is not possible to say exactly when this took place.

I note the agreed position between the parties that you knew the co‑offender was going to fire a loaded firearm toward a crowd of people standing outside the lounge, this being the relevant “unlawful and dangerous act”, but that you only became aware of the plan shortly before the shots were fired. It was submitted at hearing that you became aware of the firearm a “matter of seconds” before the shooting took place.

However, witnesses to the shooting described seeing a long, skinny metal object resting on the doorframe of the vehicle. It is a reasonable conclusion that what they saw was the barrel of a long‑arm rifle from which the bullets were fired. Forensic evidence establishes it was a .22 calibre weapon.

I have concluded that, based on the evidence available, this firearm was of some length and size, making it very difficult to accept you were unaware of the presence of this weapon in the cabin of the motor vehicle until moments before the shots were fired. I am of the opinion that you were aware of the presence of the rifle in the cabin of the car well before you arrived at the scene of the shooting.

As a result all of these factors, I conclude that you were aware when you drove the shooter to the Lounge that an act of violence was going to occur, and that you also became aware at some point that the violence would involve using a firearm.

In assessing the seriousness of your offending, I have also taken into account you were not the person who fired the bullets. Whilst this is the case, your actions were nevertheless crucial to the execution of the plan to commit violence, in that you facilitated the primary offender to get to the scene and then drove the person away after the shots were fired.

It is also relevant that the offending conduct involved firing multiple bullets into a crowd of people. Such an activity should be regarded as highly dangerous, which proved to be the case when two people were shot, one fatally, and the other receiving a serious bullet wound. There is no question that you acted deliberately in facilitating this highly dangerous activity.

I also make it clear that you are not to be sentenced in respect of the wound suffered by Mr Amir as a result of the shot fired towards him. However, the fact that a second person was shot does highlight the dangerousness of firing shots into a group of people. In the case of Director of Public Prosecutions v Elliot and Fares,[12] involving charges of murder, attempted murder and intentionally causing serious injury, where two offenders — one shooting and the other driving the shooter to a nightclub where shots were fired from the car — in his sentencing of the offenders, Justice Tinney noted that the crimes were carried out in a public street and remarked:[13]

You showed a complete disregard for the safety of all of the many other people whose lives were imperilled and who were exposed to substantial trauma as a result of your actions.

[12]DPP v Elliott and Fares [2022] VSC 554 (Tinney J).

[13]Ibid [155].

I agree with that statement. Whilst acknowledging the factual differences between that case and the present, you disregarded the safety of those present near the Lounge and by your actions put them in harms away and forced them to witness the shooting, and its aftermath. Discharging the firearm into a group of people was highly dangerous in all the circumstances, making this a very serious example of manslaughter.

Moral culpability

As to the assessment of your moral culpability, I note that it is conceded by your counsel that you had a “limited” opportunity to withdraw shortly before the firing of the bullets, when you became aware of the firearm, but did not do so.

As to an explanation as to why you committed this offence, your motivation remains unclear. No meaningful submissions were advanced about this aspect, and little emerges from the material provided to the court that explains why you acted in the way you did. Given your unremarkable family background, apparently stable upbringing and lack of prior criminal history, it remains puzzling why you became involved in carrying out such a serious and highly culpable criminal act.

Furthermore, instead of stopping after the firing of the shots had finished, you drove yourself and your co‑offender from the scene, in an attempt to avoid being held to account for your actions. Your subsequent attempts to avoid detection included effecting your disappearance; changing your mobile telephone number; deactivating your Facebook account; and delaying the handing of yourself to authorities for up to four months, until you were arrested on an unrelated matter, which involved driving a stolen car. Had you not been driving the stolen car, it is unclear how long you would have continued to evade being held responsible for your actions.

Furthermore, the conversations you had with your mother indicate your attempts to evade responsibility were deliberate. An additional feature of this attempt to avoid responsibility was selling the Hilux for $500.00.

I have considered the character references provided by your family and friends. They speak to your strong family ties, the importance of religion in your upbringing, the impact of your father’s death upon you and your regret for your actions. While they give me some degree of assurance that you will be well‑supported upon your eventual release, they also illustrate how senseless and out of character your offending was. This court is regularly confronted with offenders who have experienced serious trauma, which goes some way to explaining their actions. That is not the case with you. You had a good upbringing, a loving family, a child of your own, stable employment and a wealth of moral guidance from your religious community.

With all these factors weighed, I am of the opinion that your moral culpability for this offence falls at the higher end of the scale.

Guilty plea and remorse

I find that your plea of guilty to the single charge of manslaughter came at a relatively late stage, being four days prior to your trial on charges of murder and attempted murder. I cannot accept that it was entered “at the earliest reasonable opportunity”, as advanced by your counsel. The resolution of the charges to a plea of guilty to manslaughter came only after you indicated you were in fact at the scene and willing to accept some responsibility, which you could have done far earlier. However, I accept that there is still clear utilitarian value in your plea, and that it has relieved the family and friends of Mr Tuivasa from having to endure a contested trial, as well as representing a saving to the community.

In some cases a plea of guilty can of itself provide evidence of remorse for having committed offending conduct. I am not persuaded that this is so in your case. Some of the factors I have discussed above are also relevant to the assessment of whether remorse genuinely exists, in particular your flight from the scene of the events; your disappearance; and efforts to avoid detection. Furthermore, no explanation has been provided as to why you became involved in the commission of this offence.

However, in my opinion, another factor relevant to the assessment of your remorse is that you know the identity of your co‑offender — the person who pulled the trigger and shot Mr Tuivasa. You could identify that person to the authorities, so they can be brought to justice. In my opinion, the fact that you have not done so is relevant to the assessment of the extent to which you are remorseful. One of the key ways in which remorse could be demonstrated is if you revealed the identity of your co‑offender. Your failure to take this step leaves the family, relatives and friends of Mr Tuivasa without a satisfactory conclusion as to who the killer was. As a result, they must live in the knowledge that their loved one’s killer may be among them, not to mention impact on the wider community that a killer remains at large.

It was submitted on your behalf that you believe it is not safe to reveal the identity of your co‑offender. However, no evidence was placed before me to support that proposition apart from the bald assertion. The court was also not told of any safeguards that might be deployed should your belief be justified. I make it clear that your failure to identify this person is not used as a factor in aggravation of the punishment to be imposed, but it does go to assessment of your remorse.

Whilst it might be accepted that you regret your actions for a number of reasons, I am not persuaded that you are yet significantly remorseful. This conclusion is supported by aspects of Mr Armstrong’s report. You may develop a fulsome and meaningful sense of remorse in time, but it is not yet present to any advanced stage.

In weighing all these factors, I conclude that little remorse can be shown to exist in your favour to this point. This in turn is relevant to your prospects of rehabilitation.

Age and rehabilitation prospects

You are 29 years old. As I have observed, you have had a stable upbringing and to all accounts come from a happy, supportive family. I have also observed that no reason has been advanced as to why you have committed this serious breach of the criminal law and killed another man. However, in all the circumstances, I conclude that your prospects for rehabilitation appear guarded, but open. Your success in this regard will depend very much on the use you make of your time in the custodial setting. I cannot conclude that your prospects are “good to very good” or “very good to excellent”, as was submitted on your behalf.

Current sentencing practices

The prosecution provided to the court a schedule of manslaughter sentencing cases that were described as “comparable cases” to the present. The first thing to note about these cases is that they all relate to sentences imposed before the uplift in the maximum penalty from 20 to 25 years’ imprisonment. The next matter to observe is that no case discussed is directly comparable to the circumstances of the present case, although some bear similar individual characteristics.

I have considered the cases as discussed by your counsel and the prosecution in determining the sentence to be imposed upon you. I have also taken into account the fact that some of your remand custody was spent in difficult conditions brought on by the Covid‑19 pandemic.

Sentencing purposes
General deterrence, denunciation and punishment

Manslaughter is, by its very nature, a very serious offence. As has been observed on countless occasions, this offence can be committed in many different ways, and can involve various degrees of seriousness and levels of moral culpability. I have concluded your particular offending should be regarded very seriously, and involved an elevated level of culpability. Nothing placed before the court suggests you should not be regarded as a suitable vehicle for general deterrence. Furthermore, your conduct justifies strong denunciation by the court, and an appropriate level of punishment to be imposed. Your actions were outrageous, completely unacceptable and led to a dangerous and tragic outcome.

Persons such as yourself who are contemplating taking similar action in the future must be deterred from carrying out this type of highly dangerous conduct, namely being involved in repeatedly shooting a firearm wantonly into a group of innocent people.

Specific deterrence, rehabilitation and protection of the community

As to the issues of specific deterrence, rehabilitation and community protection, I particularly take into account your background, the family support you have, and the fact you suffer from no significant mental health issues. I have also considered, albeit to a limited degree, the possible effect that a lengthy sentence may have on your mental health.

As a result of these factors, I do not consider that the sentence that will be passed is required to give particular weight to the future protection of the community, or specific deterrence. You will serve a number of years in custody, and on the basis of all the material presented to the court, I consider that upon your eventual release you are not likely to pose a significant risk to the community.

Sentence

Having taken all of these factors into account, I sentence you to be imprisoned for 12 years.

Taking into account the desirability of giving you a lengthy parole period, I order that you serve 9 years’ imprisonment before being eligible for parole.

Section 6AAA declaration

I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to this offence. Pursuant to section 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 14 years’ imprisonment with a non‑parole period of 11 years.

Pre-sentence detention

I further declare that that you have served 976 days of pre‑sentence detention, not including this day.

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[2024] VSC 136

15 March 2024