R v Rintoull
[2009] VSC 617
•18 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1403 of 2008
| THE QUEEN |
| v |
| CLINTON DAVID RINTOULL DYLAN GIUSEPPE SABATINO |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September, 1 October 2009 | |
DATE OF SENTENCE: | 18 December 2009 | |
CASE MAY BE CITED AS: | R v Rintoull & Anor | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 617 | |
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MURDER, Manslaughter – Pleas of guilty – Young offender – Whether racially motivated.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Shwartz | Office of Public Prosecutions |
| For the Accused (Rintoull) | Mr G. Georgiou | Victoria Legal Aid |
| For the Accused (Sabatino) | Mr S. Johns | Patrick W. Dwyer Barrister & Solicitor |
MR SHWARTZ: Your Honour there is a matter I wish to raise with the court. That is the introduction and applicability of s 5(2)(daaa) of the Sentencing Act 1991, and I indicate to Your Honour that that provision was introduced by a separate Act, amending Act known as the Sentencing Amendment Act 2009 No.77 of 2009. It introduced that provision that I referred you to and it is applicable in this particular case. It reads as follows, if I am permitted to read it to Your Honour.
HER HONOUR: Certainly.
MR SHWARTZ: DAA reads as follows:
“Whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated, or with which the offender believed the victim was associated.”
That specifically relates to a consideration that Your Honour should take into account, or is entitled to take into account in sentencing. It reads, sub-s.2 says:
“In sentencing an offender, the court must have regard to –“
And that is to which I have just referred Your Honour.
HER HONOUR: Yes, thank you.
MR SHWARTZ: Otherwise I have nothing to add.
HER HONOUR: Yes, thank you. Do you confirm that the pre-sentence detention is 810 days?
MR SHWARTZ: I do, Your Honour, yes.
HER HONOUR: Thank you.
MR SHWARTZ: That is agreed upon by all parties.
HER HONOUR: Beg your pardon?
MR SHWARTZ: It is agreed upon by all parties.
HER HONOUR: Yes, thank you, Mr Johns, do you have anything to say in respect of the amendment to the Sentencing Act?
MR JOHNS: Only this, Your Honour. I am assured of the date of operation of it, and then clearly that the provision does operate to sentences past, so the provision applies to this sentence. However, of course, whether it applies or not depends on Your Honour's findings and I made submissions on Mr Sabatino’s behalf that Your Honour could not be satisfied beyond reasonable doubt, which you would have to be, it being an aggravating feature.
HER HONOUR: Yes, thank you. Mr Georgiou?
MR GEORGIOU: Similarly, Your Honour. The matter has been litigated before Your Honour on the previous occasion. Submissions have been made. I agree with what Mr Johns said as to the standard of proof being beyond reasonable doubt.
HER HONOUR: Yes. Thank you, Mr Georgiou. You are ad idem that the pre-sentence detention is 810 days?
MR GEORGIOU: Yes, Your Honour.
HER HONOUR: Yes, thank you.
MR GEORGIOU: Your Honour, may I be permitted to raise another matter?
HER HONOUR: Yes.
MR GEORGIOU: I understand that permission has been sought from the Court to publish images of the accused in the press, and to that end there are court artists here for that purpose. Your Honour, I make an application that any image of Clinton Rintoull be suppressed. I do so on this basis. That Mr Rintoull is a person who is currently on protection in a protection unit at the Metropolitan Remand Centre. He has been on protection for quite some time and from memory I raised that issue with Your Honour during the plea hearing. It is because of concerns of retribution and matters concerning his physical safety that he is on protection.
Given that the prosecution have put this to Your Honour as a racially motivated crime, the need for protection, in my submission, whether Your Honour makes that finding or not, is increased. The risk to him from persons of that race or persons who simply will take offence to the allegations that have been made, increases. Your Honour has power to suppress images, and this was a matter that was raised before Your Honour on the last occasion. It is s 18 of the Supreme Court Act sub-s 1C:
“The court may in the circumstances mentioned in s.19, make an order prohibiting the publication of a report of the whole or any part of a proceeding, or of any information derived from a proceeding.”
Section 19 includes, Your Honour, s 19(C):
“Endanger the physical safety of any person.”
In my submission - - -
HER HONOUR: Just a moment please, I will just find the section. Thank you.
MR GEORGIOU: I am sorry, Your Honour.
HER HONOUR: Section 18?
MR GEORGIOU: Yes. Gives Your Honour to make a suppression order.
HER HONOUR: Yes, sub-s 1C?
MR GEORGIOU: Correct, and s 19(C) is a basis for making such an order.
HER HONOUR: Yes, very well. Thank you.
MR GEORGIOU: In short, Your Honour, in my submission, whilst his name is already in the press, if his image is published and if other prisoners see the image, then there is, in my submission, a need in order to ensure his safety not to allow that to happen.
HER HONOUR: Yes.
MR GEORGIOU: Sorry, I have not put that well, but.
HER HONOUR: Yes, I understand what you are saying.
MR GEORGIOU: Thank you, Your Honour.
HER HONOUR: Yes. Mr Johns?
MR JOHNS: Your Honour, I make the same application on behalf of Dylan Sabatino, and add to that application he was 19 at the time, he’s now 21, and that’s a factor to take into account, in my submission. It is a safety issue. Perhaps not just a safety issue in relation to him. He similarly is in protection for the obvious reason. There’s also a safety issue to perhaps family members and associates. If visual images are printed they have a great capability of identifying people if they’ve seen them before.
HER HONOUR: Most certainly, in fact if visual images are published it increases the risk of identification.
MR JOHNS: Yes.
HER HONOUR: That’s certainly so.
MR JOHNS: That’s so. Not just the prospect of a court - from last time, in fact I believe it still is, suppressed, is the photograph, rather inflammatory photograph, and that’s particularly inflammatory, and would pose a substantial risk to his safety, in my submission. Weighed against the public interest of printing such a photograph, his safety should prevail, in my submission.
HER HONOUR: Yes, very well. Do you have anything to say on the application, Mr Shwartz?
MR SHWARTZ: Your Honour, the matters are totally within your domain for a start, it’s an obvious statement, but the fact is it’s a question of whether or not it’s in the public interest to allow this material to be circulated in the fashion which has been suggested, namely by publication of photographs or paintings or drawings, or drawings, I presume. More particularly, now that my learned friend Mr Johns raises the issue of the photograph about which there was discussion on the last occasion, again that falls into the same category, namely that it is in the greater public interest to ensure that the public understands the nature of the offence, the circumstances surrounding it, and thereby it's for the benefit of the public, rather than to the detriment of the public, but at the same time it’s submitted that the harm that might befall the prisoners themselves is to be viewed as very limited and of a very small nature, in light of the fact that their names are known and they are within a protected division of the gaol. What’s submitted is that on balance it’s submitted that the material ought rightly to be put before the community for those reasons.
HER HONOUR: Mr Shwartz, it’s only the visual images, every other factor pertaining to the matter is properly before the community and one has to balance the need to protect the physical safety of the prisoners, irrespective of the fact that they’re in protection, that simply highlights the risk that they face. One has to balance that with the public’s right to view the images, both of them, and of the photographs, and I think on balance it would have to come down in favour of the personal safety of the prisoners, surely.
MR SHWARTZ: I don’t argue against the proposition, if Your Honour takes the view that that is a real risk, then I wouldn’t seek to dissuade you from that view.
HER HONOUR: Yes.
MR SHWARTZ: However, there is a different consideration in relation to the photograph about which there was a considerable amount of discussion between Your Honour and the bar table on the last occasion this matter was before the Court.
HER HONOUR: Yes. The photograph, there’s only one photograph - - -
MR SHWARTZ: It was sought.
HER HONOUR: Yes. And that can - I think that’s inclined to inflame public sentiment and thereby place the prisoners at risk again.
MR SHWARTZ: If Your Honour pleases.
HER HONOUR: Accordingly - very well. Pursuant to s 18(1)(c) of the Supreme Court Act I propose to prohibit the publication of any visual images of the prisoners Rintoull and Sabatino, and I also propose to prohibit the publication of the particular photograph on the basis that to do so may endanger the physical safety of both Mr Rintoull and Mr Sabatino, mindful that one is a young offender as a matter of law, the other is a youthful offender as a matter of law, and both are presently held in protection. In my view I am satisfied that to release visual images of them, and any photographs relating to the crime, may well endanger their physical safety. Accordingly, I prohibit such publication.
COUNSEL: If Your Honour pleases.
HER HONOUR: The two artists can stop drawing, thank you. Yes, very well, thank you. I will make the orders for the retention of the forensic sample before we go any further. That is just for a retention of the forensic sample.
MR SHWARTZ: Yes, that’s the only - there should be a disposal order before Your Honour as well.
HER HONOUR: Yes, thank you.
MR SHWARTZ: I ask that that be signed.
HER HONOUR: Mr Georgiou and Mr Johns, the retention orders are not opposed?
MR JOHNS: No, Your Honour.
MR GEORGIOU: No, Your Honour.
HER HONOUR: Thank you. Excuse me, if there’s going to be chatting amongst the media there you can leave the Court, thank you.
There’s no opposition to the disposal order?
MR JOHNS: No, Your Honour.
HER HONOUR: Thank you. Very well, I have made those orders for the retention of the forensic sample and the disposal orders. I will now sentence the prisoners. Stand up please.
Clinton David Rintoull, you have pleaded guilty to one count of murder and one count of intentionally damaging property. Dylan Giuseppe Sabatino, you have pleaded guilty to one count of manslaughter and one count of intentionally damaging property. No prior convictions are alleged against either of you.
Your victim, Liep Johnson Gony, was 19 when he died on 27 September 2007. He was born in the Sudan but his family fled to Ethiopia when he was six and eventually he came to Australia with family members in 1999, living first in Hobart and then he came to Victoria in 2001, where he and his family lived as part of the Sudanese community in Springvale South. At the time of his death he had successfully applied to study graphic design at a TAFE college and was about to commence full time employment.
Clinton Rintoull, in September 2007 you were aged 22 and living with your former girlfriend, Emily Chambers, at a house at 19 Briggs Crescent, Noble Park. Dylan Sabatino, you were 19 at the time and you and your girlfriend, Shandell Laurie, were also living at that house. On 14 September 2007 you, Rintoull, moved back to Victoria accompanied by you, Sabatino, and your girlfriend, Shandell Laurie.
You had intended to stay with Rintoull’s mother but this was not acceptable and later that day the three of you moved into the premises occupied by Emily Chambers, a former girlfriend. At about this time Emily Chambers was served with a notice of proceedings instituted against her before the Victorian Civil and Administrative Tribunal to have her removed from the property due to arrears in rent.
On Sunday 23 September at 11.42 pm you, Rintoull, rang “000” and asked to speak to the police. You told the police communications centre that a group of 20 Sudanese males were chasing you and you asked police to attend Briggs Crescent, Noble Park. You stated that the Sudanese had knives with them and had nearly stabbed you.
During this conversation you talked about the problems the Sudanese were causing in Noble Park and you asked the police if they were going to do something about the problem because if not you might do something about it yourself. You refused to give the police your name. As a result of that call the police from Springvale were dispatched to the area and the police Canine Unit also attended.
A short time later a group of Sudanese were seen to disperse from the Heatherton Road area. Upon searching a nearby drainage area the police located the deceased lying in long grass. He was spoken to by the police and arrested for being drunk in a public place and was subsequently conveyed to the Dandenong Police Station and lodged in the cells. He was later released from custody and bailed to appear in court in relation to charges of being drunk in a public place and stating a false name and address.
Emily Chambers told the police that after being chased by a group of males the two of you returned home and told her what had occurred and that you, Rintoull, informed her that you and Sabatino had been trying to assist a young Sudanese male by providing him with a sandwich when you had been chased.
Chambers observed you, Rintoull, to be angry at what had occurred. On the following days you, Rintoull, complained to Chambers on a number of occasions about the problems the Sudanese were causing in the local areas. You showed her an article in the local newspaper which, under the headline “Bronx fear”, had referred to problems with as the paper described it, “Recalcitrant migrants” and you told her that Noble Park was turning into the Bronx.
On Wednesday 26 September 2007 during the evening, the deceased spent time in the Noble Park area with friends. They congregated around the Noble Park Railway Station and the local skate park near the Noble Park pools. During the evening, the group swelled at times to approximately ten in number and most of those, including the deceased, were drinking alcohol.
The deceased’s cousin, Lock Fouch, was part of this group and he last saw the deceased at the Noble Park Railway Station at approximately 9.45 pm. The deceased was seen to be drunk and by himself. During that same evening the both of you and Chambers and Laurie were at 19 Briggs Crescent, Noble Park. You had all been playing a drinking game and you, Rintoull, had been smoking cannabis.
That morning Emily Chambers had been told that she would have to vacate the house by the end of the week due to her arrears in rent. Chambers was angry that she was being evicted and so during the evening the two of you and Chambers and Laurie caused significant damage to the interior of the house, kicking and punching holes in a number of internal walls and spray painting graffiti throughout the house.
During the course of this damage, you, Rintoull, sprayed on one of the lounge room walls the words “Fuck da niggas.” The damage to the property was said to be extensive, extending throughout the whole of the house and the property damage was valued at $16,049. It is this conduct which gives rise to the counts of intentionally damaging property in respect of both of you.
At approximately 10 pm that night, you, Rintoull, were seen outside the premises in Briggs Crescent with a gold coloured metal pole. At this time a local resident, Lawrence Lambourne, was walking his dog down Briggs Crescent, and he saw you standing in the middle of the road with the police and heard you yelling and in his words ranting, “These blacks are turning the town into the Bronx. I am going to take my town back, I’m looking to kill the blacks.” Lambourne also heard you say, as indeed was the case, that you had been away from Noble Park for 11 months.
Emily Chambers, who witnessed this event, approached you and asked you to come inside, which you did. It appears that at some point you had an argument with Shandell Laurie, and a short time later you again left the house, again with the pole and began walking down Briggs Crescent towards Mons Parade. As you did this you were overheard by Shandell Laurie to say, “I guess I’ll go and take my anger out on some niggers,” and as a result of that Laurie asked Sabatino to go after you to make sure you were all right.
About 15 minutes after you had both left, Shandell Laurie saw the two of you walking down the driveway of 19 Briggs Crescent and going towards the rear yard. She went outside and saw the two of you washing the poles under water. Both poles were bent and she heard you, Rintoull, say, “I bashed a nigger and I think he’s dead.”
A short time later, Chambers, who had gone next door to get some cigarettes, returned home and you, Rintoull, motioned to her that you had hit someone and took her to the rear corner of the yard where you said you had hidden two poles.
Emily Chambers, at the committal, described you at this point as upset, crying and frightened. You then returned to the house and in conversation with Shandell Laurie, indicated that you had hit a Sudanese guy over the head about 15 times and a couple of times in the body. You, Sabatino, stated, that you had hit the guy on the head a few times, and also hit him a couple of times in the body.
You, Rintoull, and Shandell Laurie then argued over what happened and you, Rintoull, at 11.26 pm rang Emily Chambers’ sister and told her that you had hit a Sudanese over the head with a metal pole, and told her you thought the Sudanese was one of the ones that had chased you two days before, and your words were that you “thought you had got one back and that you had killed him.”
The two of you, together with Chambers and Laurie, decided to leave Victoria and to travel to South Australia. You spent the night packing in readiness for the trip to Adelaide, and at 5.14 the following morning, you, Rintoull, telephoned your mother and asked her to come to Briggs Crescent, which she did. She came with your sister and you told them you were leaving immediately for Adelaide and that you would not see them for a while, although you did not say why.
Later that morning you, Rintoull, ordered a taxi which took all four of you to the Dandenong railway station from where you caught a train to the Southern Cross Station and four seats on the Firefly bus to Adelaide were booked for travel that night.
Returning to the deceased, he was discovered at 10.40 pm by one Gai Choul, who was driving along Mons Parade, Noble Park, when he noticed a male lying on the southern nature strip, opposite a derelict house, at No.13. Mr Choul recognised Mr Gony as having played basketball with him. Mr Gony was unconscious and bleeding from the head, and Choul immediately ran to a nearby friend’s house and called “000”. An ambulance arrived at 10.58 pm and Mr Gony was transported to the Alfred Hospital in a critical condition. He underwent emergency surgery to relieve pressure on his brain and was placed on a life support system.
Over the following 24 hours his condition deteriorated to the point where it was considered that he was unable to survive his injuries. He was suffering from multiple serious injuries, including multiple petechial haemorrhages, subarachnoid haemorrhage, a commuted fracture of the distal left ulna, a fractured left nasal bone, a right acute subdural haematoma, a fractured left base of the skull, the depressed occipital bone fracture, a fracture of the left orbital floor, and occipital scalp lacerations and forearm lacerations. His injuries were consistent with the severe head injury from trauma to the head. At 10.40 pm on Thursday 27 September 2007, his life support system was removed with the consent of his family, and he died six minutes later.
An autopsy conducted by pathologist, Dr Kate White, later determined that the cause of death was a depressed fracture of the rear left side of the skull. The deceased was found to have a blood alcohol level of .23 grams per 100 millilitres.
By Friday 28 September, the Homicide Squad had established that you, Rintoull, and you, Sabatino, together with Laurie and Chambers were suspects, and police obtained telephone intercepts for a telephone belonging to you, Rintoull, and one belonging to Emily Chambers. A third telephone intercept was obtained in respect of a mobile telephone belonging to Emily Chambers father, which was being used by Emily.
In respect of you, Rintoull, those telephone intercepts revealed your concerns for your predicament and that you told your father that you snapped, and it was not in your persona to “just sit there and pole the fuck out of someone till your pole bent”, and you told him that the pole was made of iron and that it felt like you were hitting soft grass.
You discussed with your father your options of either handing yourself in or disappearing, but in conversation with your mother you acknowledged that killing a man was doing something wrong and that the right thing to do was to go back and turn yourself in.
The tapes revealed that you Sabatino were prepared to wait until the police arrested you, and you asked Rintoull to tell the police that you were not involved.
You were both arrested on 30 September 2007 in South Australia. You, Rintoull, were arrested with Emily Chambers at the Christies Beach Railway Station as you were awaiting the arrival of Emily Chambers’ mother, who was travelling from Victoria to bring you back, you having already decided to surrender yourself to justice. You, Sabatino, were arrested at your mother's home in Port Adelaide.
In respect of you, Rintoull, police conducted a record of interview on 30 September while still in South Australia. In that interview you gave the police different accounts of what occurred. You maintained a second male was with Mr Gony and that the male ran off. You told the police initially that you hit Mr Gony with his own pole, which was not true, and later you said you found the pole near a bridge, which again was not true. You did, however, admit to hitting Mr Gony in the head and striking him 15 times with the pole. You acknowledge that it was wrong to kill him. You said that the attack was not racial, but that you had snapped and that it was not your fault.
You denied that you had been looking for a Sudanese person to assault, but admitted that you armed yourself with an iron bar, you said to protect yourself, because in your words “the violence was out of control”. You stated that it was not your intention to kill Mr Gony and you expressed yourself as “devastated for the poor boy”, although you maintained again it was not entirely your fault.
When asked to explain your intention you replied, “Everyone says a lot of things when they’re angry and they don’t mean it”. You also told the police that you had consumed marijuana and alcohol on that day and that you had damaged the house after the attack on Mr Gony, which again was not true.
Your record of interview was not a full and frank account of what occurred but you did make significant admissions and you did acknowledge that you hit Mr Gony 15 times with the pole.
Dylan Giuseppe Sabatino, you were also interviewed on 30 September 2007 while in South Australia. In your record of interview you initially denied going out with a pole, but then admitted that you did, and that you took the pole because you had been chased the night before, presumably a reference to the Sunday incident. You told the police that you left the house with the intention of helping Rintoull out and bringing him back, and you also told the police that when you got there Rintoull was running away, saying they were chasing him, and you said to him, “Well, let’s go up there”. So you both went back and confronted the two men. You also told the police that that second male ran off. You admitted that you struck Mr Gony four times to the body and twice to the head and punched him to the face, and you stated that you did not intend to hurt him, but that you had gone out there to protect a mate. You admitted that you were drunk, having consumed Irish whisky and cask wine.
During your respective interviews each of you explained the events which led up to the attack, and that explanation is consistent with the statements of Emily Chambers and Shandell Laurie, the “000” call on the previous Sunday and the police response to it.
You maintain, and I accept, that on the previous Sunday you, Rintoull, had met a Sudanese boy who was sleeping in a derelict house at 13 Mons Parade. He had told you that he was homeless and was eating dirt. You then went back to 19 Briggs Crescent to make the boy a sandwich. You and Sabatino returned to the house with the sandwiches, but the boy had gone, so you ate the sandwiches. By then the boy returned to the house, and so you went back to your house and made more sandwiches, and then returned to the derelict house to give them to the boy.
In the interim the boy had left and gone to the railway station, and so you went down to the railway station, still with the sandwiches. You were met there by a group of 20 to 25 Sudanese, whom you said were hostile to you, some of whom had knives and a sword. A couple of bottles were thrown in your direction and you ran off and they gave chase, and it was in these circumstances that you came to make the call to “000”, where you reported the incident to the police and expressed your willingness to do something about the problem, as you termed it, if the police did not.
Your respective interviews raise a number of issues.
You both maintained that when Mr Gony was attacked a second male was present and ran off. Police inquiries including an information caravan set up at the scene failed to locate a second male. However in these circumstances there may be many reasons why a second male may not come forward and I am not prepared to act upon the Crown’s submission that as no second male has come forward I should be satisfied that none was present on this occasion. In any event the absence or presence of another male prior to the initial stages of the confrontation does not mitigate what you subsequently did.
Secondly the issue of intention. Sabatino, you have pleaded guilty to manslaughter on the basis of unlawful and dangerous act and this is consistent with your answers in your record of interview that you never meant for anything to happen and that your intention was not to hurt anyone.
Rintoull, your counsel has submitted that your conduct may be regarded as a case of reckless murder. You stated in your record of interview that you did not intend to kill Mr Gony, although that does not fit easily with your comments as heard by Mr Lambourne and Ms Chambers. Mr Lambourne died before he was able to be cross-examined at the committal and your counsel has indicated that he would have been challenged in respect of his evidence.
Your counsel also submitted that Ms Chambers’ evidence is to be qualified by the answers she gave at the committal where she stated that she did not hear all that you had to say but she did hear you say to Mr Lambourne if there was any trouble down at the station and come and find him. Even accepting these qualifications and perhaps the limited weight to be attached to Mr Lambourne’s evidence, the evidence does indicate that you were at the very least in a pugnacious and aggressive mood on the night, no doubt inflamed by what had occurred on the previous Sunday and disinhibited by a combination of alcohol and cannabis.
I do not accept that when you left the house with the pole you intended to kill whomever you met but you were intent on serious violence and it was violence directed towards the people who congregated around the Noble Park Railway Station, whatever their race. When you came upon Liep Gony he must have been in a very drunken state. In these circumstances either alone or with another who on your own account ran off, Mr Gony could not have presented other than as a hapless and helpless victim and you, Rintoull, set upon him striking him with the pole and continued to strike him even when he was on the ground. This was a savage, ferocious and brutal attack and I am satisfied that you, Rintoull, intended to inflict really serious injury to him.
The ferocity of your attack and the extent of your violence must have been known to you because upon your return to the house you told Emily Chambers that you had “bashed a nigger” and thought he was dead. Your actions clearly bespeak your intentions and accordingly I do not accept that your conduct is to be characterised as reckless murder.
Thirdly as to whether this killing was racially motivated. The nature of the graffiti sprayed on the walls of the house only one section of which expressed racial sentiments; your comments as expressed in the “000” tapes, and your comments as heard by Mr Lambourne, Ms Chambers and Shandell Laurie bespeak anger, frustration and a sense of vigilantism and it cannot be denied that there is a racial aspect to your remarks directed to the group that had pursued you earlier in the week and as recorded in the one piece of graffiti which was expressed in the most derogatory and insulting terms.
To say that this killing was racially motivated is to deny a complex set of factors. Your concerns seem to have stemmed from the presence of a group of youths congregating in the vicinity of the Noble Park Railway Station. Your perception of lawlessness as a result of this and the police’s inability to deal with the problem as you perceived it, your own experience with the gang in the days before and the article in the local paper under the headline “Bronx fear”.
But your actions on the previous Sunday when you had twice taken food to the homeless African boy living in the abandoned house is not consistent with your actions on this night being racially motivated, and in these circumstances I am not satisfied beyond reasonable doubt that your actions were so racially motivated and that racism per se was a motive for the attack.
In respect of you, Sabatino, there is nothing in the evidence to suggest that you shared the frustrations and concerns that Rintoull did, although you were also chased by the group on the previous Sunday. In your record of interview you maintain you heard Rintoull say that they were taking over the railway station and that he should smash them. But there was nothing to suggest that you shared that sentiment, nor is there any evidence that you were in an aggressive mood on this night and all of the evidence does point to the fact that you left the house, although armed with a pole, in order to bring Rintoull back.
Certainly your participated in vandalising the house but it is not suggested although you graffitied the walls that you sprayed the particular offensive graffiti or that you shared that sentiment.
In these circumstances, I am not satisfied beyond reasonable doubt that your actions were racially motivated.
I turn now to matters personal to you, Clinton David Rintoull. You are now aged 24. Your parents separated before your birth. Your father lives in Queensland and your mother in Melbourne. She has schizophrenia and is now suffering from advanced cancer. Your life to the age of 17 was marked by great instability. You spent your formative years moving between your parents or being cared for by friends, your grandmother, welfare agencies and foster care, by reason of your mother's ill health. You can account for 23 changes in address and 14 different primary and secondary schools.
You were bullied at school because of your mother’s mental health, and the times you lived with your father were marked by his violence and emotional abuse. Indeed the telephone intercepts of the conversations you had with your father give a measure of the man and his attitude.
You began using cannabis at the age of 16 and your cannabis use continued up until your arrest. At the age of 18 you became a binge drinker. However, since you have been in custody all of your random urine analyses have been negative. Despite the considerable instability which marked your early life, you did complete Year 11 at the Noble Park High School at a time when you were living with your grandmother.
Having completed your schooling, you remained in Victoria and then returned to Queensland to live with your father, your older brother and two half siblings. You obtained an apprenticeship as a chef, but left after 12 months, because your cannabis use was such that it was incompatible with your work commitments. Since then you have engaged in a number of short term unskilled jobs.
In the 12 months prior to these offences, you were living in South Australia. You had gone there to visit relatives. You met your co-accused and a girl, Anastasia, who became your girlfriend, and the three of you led a transient life, staying with friends and living on the streets. You continued throughout this time to use and abuse alcohol and cannabis. It was in these circumstances that you returned to Melbourne on 14 September 2007 and, as stated previously, you had hoped to stay with your mother, but your half sister who cares for your mother was not happy with that arrangement and you moved in with Emily Chambers, and it was in this way that you came to be living with her at 19 Briggs Crescent.
Dr Odell, a forensic physician, has perused your medical history from 2002. He reported that it appears you have suffered from a depressive illness for at least a year prior to these offences, and a review of your medical history indicates that you have reported to doctors with symptoms of depression and anxiety and a history of longstanding mild paranoia and heavy cannabis use.
A report by Dr Simon Kennedy, clinical and forensic psychologist, was tendered on your behalf. He describes you as at between average and low average range of intellectual functioning, and although you did not present with the psychosis, he described you as having an undercurrent of anger. You told Dr Kennedy that you were angry at everything, at your mother being sick, about people not listening, and that you always got ignored. You also told Dr Kennedy that you armed yourself on this occasion because it was a dangerous area, and you told him that you smashed up the house after the attack, although that is not the case.
You reported to him a history of paranoid thoughts and some delusions, past and present, the veracity of which Dr Kennedy, based on his evaluation of you, doubted. He opined that you were likely to have a personality disorder stemming from your early childhood experiences and dispositional factors. Otherwise you presented with anxiety and, in Dr Kennedy’s opinion, your incarceration to date has allowed you to develop insight and remorse for your actions, and this insight will develop further with appropriate treatment.
Since your arrest, you have been held on protection in custody at various locations, including at the psychiatric unit, St Paul’s, for seven months. You are presently being held on protection at the Deakin Unit at the Metropolitan Remand Centre and have been there for the past nine months. You are on daily medication for anxiety and depression, and also receiving medication for high blood pressure and stress headaches.
In the past, while in custody, you have been able to work, but your present classification only allows for limited opportunities for work. Nonetheless you have applied yourself to the educational course available to you and various certificates of completion have been tendered on your behalf.
Dylan Giuseppe Sabatino, I now turn to matters personal to you. You are now aged 21. Your parents separated when you were 11 because of your father's violence and alcohol abuse. You lived with your mother and her new partner, with whom you did not get on. While at school you participated at the Kilburn Youth Centre and became a youth leader. You commenced your Year 12 studies at the Christies Beach High School, but you did not complete that year. You left school at the age of 17 and led a transient life, living with friends and on the streets.
In 2006 you did work from time to time as a kitchen hand, but otherwise since leaving school, as your counsel described it, “you simply drifted.”
You formed a relationship with Shandell Laurie and you met Clinton Rintoull in Adelaide 11 months before these offences occurred. Since leaving school you had been drinking alcohol to excess and during 2007 you had been using cannabis on a daily basis.
A report from Dr Fuller from the Youth Health Service in South Australia was tendered in evidence as Exhibit S4. It details your mental health issues as recorded by that service between July 2006 and August 2007. You reported with heavy cannabis and alcohol use consistent with self-medication for anxiety and difficulties with long term concentration and attention.
It is recorded that you had variability in your mood, suggestive of bipolar disorder, and the effects of physical and emotional trauma during childhood and adolescents. You were also identified as having impulsive anger and compulsive rituals, suggestive of obsessive compulsive disorder.
You were seen to have good insight into the effect of these conditions on your daily life, and your medication, when you remained on it, was effective. Indeed, your family has a history of mental disturbance and it appears that you accurately diagnosed yourself as having obsessive compulsive disorder, which for a time you successfully treated with your mother's medication.
Dr Lester Walton, consultant psychiatrist, saw you on two occasions, and his reports were tendered in evidence on your behalf as Exhibits S2 and S3 respectively. He describes you as a person of normal intelligence, but with a well established diagnosis of chronic generalised anxiety disorder, with particular obsessive compulsive features, and that your alcohol and cannabis use is related to your anxiety. In Dr Walton’s opinion you are remorseful and highly unlikely to engage in any further acts of violence in the future, such has been the salutary effect of your predicament.
A number of testimonials were tendered on your behalf. Your mother’s present partner, Brett McConnell, with whom you have a close relationship, describes these offences as out of character. You have expressed to him your remorse and the sadness you feel for Mr Gony’s family.
Duncan Langford Glass, an Aboriginal male, spoke of your friendship since 1997 and your work together at the Kilbourne Community Centre. It is his opinion that you are not a racist and your mutual friends are drawn from many cultures. Melissa Benton, a friend of your mother's and a special education teacher, gave you extra curricula tutorials in English and she regards you as having an excellent work ethic. She also confirmed that you have many friends from many ethnic backgrounds.
Mr Alan Lynch, your uncle, gave evidence on your behalf and submitted a testimonial. He described you as responsible, reliable, honest, caring and very intelligent. You are, in his opinion, extremely sorry for what happened and genuinely remorseful. Other testimonials tendered on your behalf speak of your well-mannered friendly disposition and that you have never to the respective authors’ knowledge been malicious or aggressive.
While in custody you have been held on protection and you have had limited visits because your family and friends reside interstate. You have also completed a number of vocational and life skill courses. Random urine sample analyses have indicated that you remain drug and alcohol free while in custody.
I turn now to the nature and gravity of the offences here committed. The crime of murder carries a maximum of life imprisonment, and the crime of manslaughter a maximum of 20 years’ imprisonment. The offence of intentionally causing damage to property carries a maximum of ten years’ imprisonment.
The Crown submitted, and I accept, that Liep Gony was subjected to an unprovoked and sustained vicious attack by you, Rintoull, which you, Sabatino, subsequently joined in. At the time Liep Gony was heavily intoxicated and unarmed, and the two of you were armed with iron bars or poles.
The injuries sustained indicated that Mr Gony was struck repeatedly to the head, and when on the ground you, Rintoull, continued to strike him. You, Rintoull, had been brooding about the events of the previous week, and it appears that your anger simply erupted into this most serious violence and you, Sabatino, went out to look after your friend, but you also took a pole with you, and instead, when Rintoull ran towards you, you made the fateful decision to return with him, and instead of stopping him from attacking Mr Gony you joined in, although to a considerably lesser degree, and absent any specific intent. It appears, however, that you withdrew when you saw blood on your pole, but at a time when the attack was continuing.
After the attack, with Mr Gony lying on the ground, you both left him for dead, in circumstances where there could be little doubt that you both knew he was very seriously injured. Neither of you made any attempt to get him any assistance, despite your willingness, Rintoull, three days earlier to call “000” anonymously. You could have at least made such a call in these circumstances. Instead both of you left him there to his fate and it was only the fortuitous circumstances of the passing driver seeing Mr Gony lying there which enabled him to get the medical assistance that he required. Both of you showed a callous disregard for the plight of your victim.
Indeed although it appears that both of you were upset and tearful after the attack I am satisfied that your flight from Victoria was motivated by your concern to avoid apprehension although panic may well have played some part.
I do not accept that you fled because of the fear of retribution as was submitted. After all the police boarded the bus before it departed for Adelaide and if any of you had any concerns for your safety if that be the principal motivation for your flight you could have surrendered to the police then. You knew at that time that Liep Gony was critically injured and it was only later when you knew that he was dead did you at least in the case of you, Rintoull, express remorse and consider returning to justice.
The actions of both of you have caused the death of a much loved son, brother and uncle. Liep Gony’s family, as indeed had he, had suffered great deprivation, misfortune and tragedy in their lives before they came to Australia, a country which they regarded had offered them the chance for a new life.
The victim impact statements tendered on behalf of his mother, sister and uncle speak eloquently of their loss and grief and in respect of his uncle, Mr Pouch Dodeng, he speaks with incredulity that with all that the family had endured that they should suffer such a death in the country that they call home. No sentence this court can impose can restore to them their loved one.
I turn now to sentence you, Clinton Rintoull. In sentencing you I take into account your pleas of guilty and give you a discount for them. I take into account also that you indicated your preparedness to plead guilty to murder, albeit in the basis of reckless murder, in April of this year. I take into account also that you pleaded guilty to the count of intentionally damaging property at the committal.
I take into account also that your pleas are an indication of your remorse and that by your pleas you have saved the community the cost of a trial and the victim's family the ordeal of one. I take into account also that by reason of your pleas you have facilitated the course of justice and I take into account the significance and weight to be attached to a plea of guilty to the crime of murder.
I take into account also that you are remorseful for your conduct and that at the time you were arrested you had already decided to surrender yourself to justice. I take into account also that you were a youthful offender at the time you committed these offences and that at the age of 24 you are still a young man.
I take into account also that by reason of your age due weight should be given to your prospects of rehabilitation. I take into account that in your record of interview you ultimately made significant admissions to the police although you were not frank with them and I take into account also that you have no prior convictions and that at the age of 24 you will be serving a very substantial period of imprisonment for the first time.
I take into account also that you are a person of low to average intelligence, that you have had an unstable and dysfunctional childhood and adolescence and I take into account also that you suffer anxiety and depression and that this may impact upon your wellbeing within the prison system, and I take into account also that you have been held on protection and presumably this situation will prevail for some time. Therefore the conditions that you are held in may be more onerous than that endured by the general prison population.
I take into account also that you are making good use of your time in prison such as your circumstances allow and that provided that you address your anger your rehabilitation may be said to be achievable.
Against these matters stand the nature and gravity of the offences here committed, in particular that of murder and your role in them, the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and signal to like minded members of the community that if they offend in such a way as you have they can expect salutary punishment. Specific deterrence must also be given due weight so that the sentence imposed upon you will deter you from re-offending in a like manner.
Pursuant to s 5(2)(daaa) of the Sentencing Act in sentencing you I must have regard to whether the offences were motivated wholly or partly by a hatred for or prejudice against a group of people with common characteristics with which the victim was associated or which the offender believed the victim was associated.
I have already addressed this aspect of the sentencing process in my earlier remarks and for the reasons stated I am not satisfied beyond reasonable doubt, despite the racist comments expressed by you and your infelicitous language that your offending was motivated either wholly or partly by hatred or prejudice against a group of people with common characteristics, but rather by frustration and anger directed to a group of persons irrespective of their race whom you regarded as violent, out of control and taking over the Noble Park Railway Station.
Accordingly, for the crime of murder, you are convicted and sentenced to 20 years’ imprisonment.
For the crime of intentionally causing damage to property, you are convicted and sentenced to one year’s imprisonment. Although the intentionally causing damage to property was a discrete offence and was occasioned prior to the murder, so as not to impose a sentence which is crushing, and having due regard to the principles of totality, I propose to make no order in respect of the service of that sentence. So by operation of law, the sentence will run concurrently with the sentence imposed in respect of murder.
Your counsel has submitted that a longer than normal non parole period here is appropriate, so as to facilitate your prospects for rehabilitation. I propose to accept that submission and, accordingly, I propose to order that you serve a non parole period of 16 years.
I declare that you have already served, by way of pre-sentence detention, a period of 810 days.
I declare, pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty to the crime of murder and intentionally damaging property, I would have sentenced you to a total effective sentence of 23 years’ imprisonment with a non-parole period of 19 years.
I turn now to sentence you, Dylan Giuseppe Sabatino. In sentencing you, I take into account that you were 19 at the time these offences were committed and that you are now aged 21. You are to be sentenced as a young offender, and the principles of Mills case here apply, and your rehabilitation is to be given considerable weight.
You have no prior convictions and this is your first time before the courts. You are otherwise a person of good character. I take into account and give you a discount for your plea of guilty to manslaughter, and by reason of your plea you have saved the community the cost of a trial and the victim's family the ordeal of one, and by reason of your pleas you have facilitated the administration of justice.
I take into account also that you pleaded guilty to intentionally damaging property at the committal.
I take into account that you offered to plead guilty to manslaughter in April of this year, and I accept that at the end of your interview with the police you had accepted your responsibility for your actions, and that you had made significant admissions in that interview.
I take into account also, as expressed in that interview, and in Dr Walton’s reports, that you are remorseful for your conduct.
I take into account also that you suffer from a generalised anxiety disorder, requiring daily medication.
I take into account also that as your family is interstate, the rigors of prison life will not be ameliorated by regular visits.
I take into account also that you are presently being held in protection, which circumstances are more onerous than that endured by the mainstream prison population.
I take into account also that you have used your time productively while in custody, and that your prospects for rehabilitation may be said to be favourable.
Against these matters stand the nature and gravity of the offences here committed, in particular the offence of manslaughter and your role in them, and the need to pass a sentence which acts in denunciation of your conduct and serves to punish you, and signals to likeminded members of the community that if they offend in such a way they, too, can expect salutary punishment.
Specific deterrence must also be given due weight so that the sentence imposed upon you must seek to deter you from re-offending.
I am also, in respect of s 5(2)(daaa) of the Sentencing Act, obliged to have regard as to whether the offence was motivated wholly or partly by hatred or prejudice against a group of people with common characteristics with which the victim was associated, or which the offender believed the victim was associated.
For the reasons that I have stated earlier, in respect of you, I am satisfied beyond reasonable doubt that your attack upon Mr Gony was not motivated by hatred or prejudice against a group of people with common characteristics.
Accordingly, for the crime of manslaughter, you are convicted and sentenced to ten years’ imprisonment.
As to the crime of intentionally causing damage to property, you are convicted and sentenced to one year’s imprisonment.
Although the offence of intentionally causing damage to property is a discrete offence, and was occasioned prior to the manslaughter, and although it is arguable whether to impose a partially cumulated sentence in respect of this count could be said to be crushing, nonetheless having due regard to the principles of totality and parity of sentence with that imposed upon your co-offender, I propose to make no order in respect of service of that sentence, so that by operation of law the sentence will run concurrently with the sentence imposed in respect of the manslaughter.
Your counsel has submitted that your youth, your lack of prior convictions, your remorse, your medical condition and its impact upon your incarceration, and your secondary role in the attack on Mr Gony, are all factors which justify a longer than usual disparity between the head sentence and the non-parole period. I accept that submission and would add that your prospects for rehabilitation, given your youth, are best served by a longer than normal non-parole period.
Accordingly, in order to address your prospects for rehabilitation, and having due regard to the principles enunciated in Mills case, I propose to order that you serve a non-parole period of six years.
I declare that you have already served by way of pre-sentence detention a period of 810 days.
I declare, pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of 12 years with a non-parole period of eight years.
Mr Shwartz, in respect of my sentencing comments in respect of Mr Sabatino, I expressed some of the remarks around the wrong way. I said I am satisfied beyond reasonable doubt that your attack upon Mr Gony was not motivated, I should have said, I am not satisfied beyond reasonable doubt that your attack upon Mr Gony was motivated by hatred or prejudice.
MR SHWARTZ: Yes, Your Honour.
HER HONOUR: So I amend my sentencing remarks to that respect, it should read, “For the reasons I have stated earlier in respect of you, I am not satisfied beyond reasonable doubt that your attack upon Mr Gony was motivated by hatred”.
MR SHWARTZ: If Your Honour pleases.
HER HONOUR: Thank you. Also, in respect of my sentencing remarks in respect of Mr Sabatino, in addressing the issue of whether the attack was racially motivated, my remarks in respect to the taking of the sandwich to the homeless African boy in the days before are also to be read in respect of Mr Sabatino.
MR SHWARTZ: If Your Honour pleases.
HER HONOUR: Thank you. Are there any further matters?
MR SHWARTZ: No, Your Honour.
MR JOHNS: No, Your Honour.
MR GEORGIOU: No, Your Honour.
HER HONOUR: Yes, very well. Stand up, please, Mr Rintoull, stand up, please, Mr Sabatino. Mr Rintoull, do you understand the sentence I have imposed upon you? It is a sentence of 20 years’ imprisonment, with a non-parole period of 16 years, and I declare that you have already served a period of 810 days in respect of that sentence. Do you understand that?
PRISONER RINTOULL: (No audible response.)
HER HONOUR: Mr Sabatino, do you understand the sentence I have imposed upon you? It is a sentence of ten years’ imprisonment, with a non-parole period of six years, and I declare that you have already served in respect of that sentence a period of 810 days. Do you understand that?
PRISONER SABATINO: Yes, Your Honour.
HER HONOUR: Yes, very well. Thank you. Remove the prisoners, thank you.
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