R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET

[2022] NSWSC 1696

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696

Hearing dates:

21 October & 18 November 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Suliasi Taumalolo is convicted of the offence of affray. Sentenced to imprisonment with a non-parole period of 2 years and 3 months commencing 14 July 2020 and expiring 13 October 2022 with a balance of term of 1 year and 6 months expiring 12 April 2024.

ET is convicted of the offence of affray. Sentenced to imprisonment with a non-parole of 2 years commencing 20 March 2020 expiring on 19 March 2022 with a balance of term of 1 year and 4 months expiring 19 July 2023. Order that ET serve the sentence as a juvenile offender.

ST is convicted of the offence of manslaughter. Sentenced to imprisonment with a non-parole period of 4 years and 1 month commencing 26 August 2019 and expiring 25 September 2023 with a balance of term of 2 years and 8 months expiring 25 May 2026. Order that ST serve the sentence as a juvenile offender.

Mateaki Taumalolo is convicted of the offence of affray. Sentenced to imprisonment with a non-parole period of 2 years and 4 months commencing 15 September 2020 and expiring 14 January 2023 with a balance of term of 1 year and 5 months expiring 14 June 2024.

Sione Mayol is convicted of the offence of affray. Sentenced to imprisonment with a non-parole period of 1 year 1 month and 25 days commencing 18 May 2021 and expiring 12 July 2022 with a balance of term of 1 year 7 months and 5 days expiring 16 February 2024.

Catchwords:

CRIME – sentence – five co-offenders – another co-offender sentenced previously for murder – pleas of affray and manslaughter – offenders attendees at a 16th birthday party – three offenders observed punching kicking and stomping on deceased – two offenders otherwise involved in the affray - youthful offenders – offence concerned frequently engaged in by young men fuelled up on drugs of alcohol or both – apparently random attack – deceased died at the scene – where conduct of various participants will not always call for differentiation in penalty – moral culpability – conduct of group significant – significance of effect of attack on persons on the scene –wider focus than direct victim – discounts for plea of guilty

CRIME – sentence – plea of guilty to manslaughter – where contribution to joint criminal enterprise kicking and stomping on deceased a number of times whilst deceased lying on the ground – offence serious – where court satisfied that special circumstances justify offender serving remainder of his sentence as juvenile offender – risks of placing young men in adult correctional facilities

Legislation Cited:

Bail Act 2013 (NSW) S 22b

Children (Criminal Proceedings) Act 1987 (NSW) SS 3, 6, 16, 18, 19

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 30E

Cases Cited:

Buckley v R [2022] VSCA 138

KT v The Queen [2008] NSWCCA 51; (2008) A Crim R 112

Khanwaiz v R [2012] NSWCCA 168

R v Ali [2005] NSWSC 334

R v Eleter [2003] NSWCCA 130

R v Huynh; R v Lam; R v Ta [2000] NSWCCA 18

Stevens v R [2007] NSWCCA 152

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Crown
Suliasi Levula Taumalolo (Offender)
Mateaki Taumalolo (Offender)
Sione Taulepa Mayol (Offender)
ST (Offender)
ET (Offender)

Representation:

Counsel:
V Garrity & K Marinos (Crown)
N Carroll (Suliasi Levula Taumalolo)
P English (Mateaki Taumalolo)
C Davenport SC (Sione Taulepa Mayol)
R Wilson SC (ST)
P Johnson (ET)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Kings Law Group (Suliasi Levula Taumalolo)
Alexanders Lawyers (Mateaki Taumalolo)
Katsoolis & Co (Sione Taulepa Mayol)
Rebecca Dunlop Legal (ST)
Catherine Hunter Solicitor (ET)

File Number(s):

2020/111863; 2020/111852; 2021/221307; 2019/164327 & 2020/89084

Publication restriction:

Nil

Judgment

1. On 24 May 2019 Alex Ioane was killed at a birthday party as a result of being set upon by a number of young men. He was punched to the ground and thereafter kicked and stomped on. He died as a result of a traumatic subarachnoid haemorrhage.

2. Ultimately, six persons were arrested at various times and charged with Alex’s murder.

3. On 20 August 2021, one of the persons charged, Tafuna Taumalolo, pleaded guilty to the murder of Alex. On 5 November 2021 I sentenced Tafuna Taumalolo to imprisonment for 18 years and 10 months with a non-parole period of 14 years and 1 month.

4. In the meantime, the trial which had been fixed in respect of the remaining accused for 5 October 2021 was vacated by reason of the Covid-19 pandemic. It was refixed for hearing on 27 June 2022. The trial did not proceed because on 1 July 2022 ST pleaded guilty to manslaughter, and Mateaki Taumalolo, Suliasi Taumalolo, Sione Taulepa Mayol and ET pleaded guilty to affray arising out of the incident in which Alex died. The Crown accepted those pleas in full satisfaction of the indictment against each of them.

5. ST now comes to be sentenced for manslaughter, and each of Suliasi, Mateaki, ET and Sione Mayol comes to be sentenced for their involvement in the affray.

6. The maximum penalty for manslaughter is 25 years’ imprisonment, and the maximum penalty for affray is 10 years’ imprisonment. Neither offence has a standard non-parole period.

The offending

7. The birthday party concerned was a 16^th birthday party held at a home located at 63 Chester Road, Ingleburn. The home had been rented via Airbnb. The party was by invitation only, posted on Facebook to approximately 80 people.

8. Alex Ioane attended the party with his girlfriend, Sarahlyn Vaiuta, who was a close friend of the person whose birthday party it was. The co-offenders, Tafuna Taumalolo, ST, Suliasi Taumalolo and Mateaki Taumalolo, attended the party along with other members of the Taumalolo family.

9. At the time of the commission of the offences, ST and Tafuna Taumalolo, who were brothers, were members of a gang known as the “Claymore Boys”. ET was also a member of the Claymore Boys. The Claymore Boys were part of a wider group known as the South West Gang.

10. Mateaki and Suliasi are brothers, and are first cousins of ST and Tafuna.

11. Alex was not associated with any gang.

12. There were several altercations between a number of males in the backyard of the premises during the course of the party including an altercation involving a person named Aaron Harrison. At one point, during another altercation, Ms Vaiuta, Alex’s girlfriend, was jostled. She did not know who was involved in that incident. Alex yelled out “Oi” in response to that conduct, and Ms Vaiuta and Alex moved away. Ms Vaiuta heard the male persons involved in the incident saying, “Alex, Alex, yeah. We’ll get him after”.

13. Shortly before 9.30pm, a separate altercation broke out in the backyard of the premises between Tafuna and another male. They were separated. Another person present at the party then rang ET and said to him, “come ASAP because Funa’s gonna have a go with some guys from Cabra”. The reference to “Funa” was a reference to Tafuna, and the reference to “Cabra” was a reference to Cabramatta.

14. At that point, a number of people including Tafuna, ST and Mateaki were ejected from the party. Tafuna could be heard yelling “Fuck Cabra” and “South West on top” as he was being ejected. At about this time, Sione Mayol arrived out the front of the party.

15. The organisers then decided to shut the party down, and the guests were asked to leave. The partygoers spilt out onto the roadway in front of the property. Whilst in the front yard, further altercations broke out, one of which involved Aaron Harrison and a number of other young males including ST. Once out on the roadway, Tafuna was heard to yell “Fuck Cabra, this is Ingleburn, this is our area”.

16. At about this time, ET arrived in one of two cars from which a number of males exited. He took a baseball bat from the boot of one of the vehicles. Several of the males armed themselves with weapons including bats and golf clubs. Some of the males were wearing balaclavas or face coverings.

17. ET, who was not wearing a face covering, initially went to the edge of the nearby reserve and was hitting the baseball bat on a fence. He was then yelling, “Who wants it?”. He was screaming at people to get out of his way. He went into the crowd on the roadway swinging his bat several times into the crowd, yelling out “Who’s next?” and “Claymore on top”. ET was identified on video footage taken at the party by persons present. Subsequently, police located a discarded, green-coloured baseball bat in the park area across the road from the house. Forensic examination located a fingerprint matching that of ET on the shaft of the bat nearer to the handle.

18. Tafuna began to square up to Alex, and punched him a number of times. Suliasi handed one of the partygoers a carton of alcohol, telling her to hold it, and ran towards Tafuna and Alex.

19. Mateaki and Suliasi were both there and punched Alex at that time. Both Tafuna and Suliasi punched Alex a number of times whilst Alex was still on his feet. Alex was trying to punch back. Tafuna then struck Alex with a blow that caused him to fall face down onto the road. Suliasi moved away from Alex at that time to another part of the road.

20. Once Alex fell onto the road, a group of males including Tafuna, Mateaki and ST surrounded him. Tafuna and ST and some other unidentified men kicked and stomped on him whilst he was motionless, face down on the road.

21. Tafuna kicked Alex a number of times to his torso, face and head. He also stomped on Alex’s back and head as he lay on the road.

22. Mateaki kicked Alex multiple times in the area of his upper back near his shoulder blade while he continued to lie motionless on the ground.

23. ST kicked and stomped on Alex multiple times in the chest, back, stomach and groin as he continued to lie motionless on the ground.

24. ET made his way to the group of males surrounding Alex as he was lying on the road and they were kicking him. ET was still armed with his baseball bat, and was hitting in a downward motion towards the vicinity of Alex while yelling out aggressively, “Who wants it next? I’m from Claymore, cunt”.

25. At some point, Sione Mayol saw a large group of people fighting at the front of the house and on the roadway. He ran in and joined the group of young males immediately surrounding Alex, and remained present while Alex was being kicked and stomped on a number of times.

26. While Tafuna and the other males continued to strike Alex, another partygoer, Ms Natasha Veatapu, ran to where he lay on the ground, and threw herself over his body to try to protect him from any further blows. Ms Veatapu could feel the blows connecting with Alex as she lay over him. She was kicked in the head during that time.

27. The attack on Alex was of short duration, occurring over the course of a few minutes. A number of bystanders tried to intervene. Some, however, moved further away because they feared for their own safety.

28. On hearing the police sirens, the offenders and a number of other partygoers fled the scene.

29. The people still present saw that Alex was having difficulty breathing and attempted to render first aid. He was struggling to breathe and appeared to be choking. He was turned onto his side and blood came out of his mouth. They stayed with him until the paramedics arrived at about 9.42pm, triple-0 calls having been made by a number of persons from 9.33pm. The police arrived first followed by an ambulance.

30. At 10.02pm the medical retrieval unit (MRU), an emergency medical specialist team, arrived to assist. The MRU doctor was unable to intubate Alex. Alex went into cardiac arrest and CPR was commenced. Because of hostility from a number of members of the crowd towards the emergency services, the paramedics moved Alex out of the area to a nearby school. Emergency medical treatment continued on him, but he died at 10.45pm.

31. Each of Suliasi, Mateaki, ET and Sione Mayol accept that their conduct was such as would cause persons of reasonable firmness present at the scene to fear for their personal safety.

32. An autopsy was performed on the deceased by Dr Burger on 28 and 29 May 2019. The cause of death was determined to be traumatic basal subarachnoid haemorrhage, which resulted from the application of force to the neck and/or the head. A post-mortem CT scan showed extensive subarachnoid haemorrhage with no evidence of skull fractures but an undisplaced fracture of the nasal bone on the right side was present. There was also haemorrhage in the cervical subdural and subarachnoid spaces, spinal nerve roots and soft tissue around the spine. A lesser component of coexistent traumatic brain injury was noted.

33. The deceased had a number of abrasions and bruises on his neck and head area, mostly involving the sides of his face and neck. He also had injuries to the chest, the upper and central parts of the back on both the right and left side, the rear aspect of the left shoulder and the head of the left clavicle. There were abrasions and bruising on the upper and lower limbs.

Objective seriousness

(a)   Manslaughter

34. ST has pleaded guilty to manslaughter on the basis of an unlawful and dangerous act committed in the course of a joint criminal enterprise with Tafuna Tamuololo. The act was constituted by joining in the joint criminal enterprise in circumstances where Tafuna’s acts were the cause of Alex’s death. ST’s contribution to the joint criminal enterprise was kicking and stomping on Alex multiple times in the chest, back, stomach and groin whilst he was lying on the ground. The conviction for manslaughter derives from extended joint criminal enterprise, in that ST and Tafuna embarked on an assault of Alex, but it was in ST’s contemplation that grievous bodily harm might be caused to Alex. It was Tafuna’s acts that were directly responsible for Alex’s death, and I do not find that the kicking and stomping by ST caused his death.

35. I accept that there is no hierarchy in relation to the characterisation of manslaughter (unlawful and dangerous act, gross negligence, provocation, etc); rather the objective seriousness is judged from the objective and subjective facts: R v Ali [2005] NSWSC 334 at [56]. This was, as ST acknowledges, a serious offence. ST joined in what his counsel described as a cowardly and violent attack on Alex as he lay dying and motionless.

(b)   Affray

36. In Stevens v R [2007] NSWCCA 152, Price J (McClellan CJ at CL and Hidden J agreeing) said:

[25] In determining an appropriate sentence for an offence of affray contrary to s 93C of the Crimes Act an offender’s conduct is to be considered in the context of the conduct of a co-offender. The level of violence used and the scale of the affray are relevant. An offender, however, may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which resulted in some other offence being committed by him or by the co-offender: see R v Huynh [2000] NSWCCA 18, R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166.

[26]   … In my view, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence.

37. It is the conduct of the group that is significant, and the difference in the level of involvement of various participants in the affray will not always call for a differentiation in penalty: R v Eleter [2003] NSWCCA 130 at [15].

38. Moreover, the significance of the effect of the attack upon persons at the scene must not be understated. In that way, an offence such as affray has a wider focus than the impact on the direct victim of the unlawful violence: Khanwaiz v R [2012] NSWCCA 168 at [50]. Premeditated affrays merit heavier punishment than affrays which break out spontaneously in response to an unforeseen event. This affray may be regarded as in the latter category, but whilst that might somewhat mitigate the position of Suliasi, Mateaki and Sione Mayol, it certainly does not do so in the case of ET who came to the affray, having been notified that something was about to happen, armed with a weapon: R v Huynh; R v Lam; R v Ta [2000] NSWCCA 18 at [29] and [34]-[35].

39. I consider that the objective seriousness of this affray was above the mid-range, particularly given that as a result of it a young man died. Sufficient is known about the participation of each of the offenders so that comparisons can be made of their relative moral culpability. In that way, without detracting from the group nature of the offence which, as I have said, was a serious instance of the offence of affray, there should be different penalties for each of the offenders.

40. There can be no doubt that the actions of ET in swinging a baseball bat around in the crowd and yelling out threatening remarks were more likely to cause the persons present to fear for their personal safety than the actions of Suliasi which were confined to the physical altercation with the deceased. That is not to minimise the actions of Suliasi who deliberately joined in the assault, relieved himself of the carton of alcohol he was holding at the time the assault commenced, and then in a cowardly fashion with his brother Mateaki, and his cousins Tafuna and ST, commenced to assault the deceased. That in itself was likely to have instilled fear in the onlookers for their own personal safety.

41. Although Suliasi withdrew after Alex was knocked to the ground, Mateaki continued with the assault, kicking Alex multiple times as he lay motionless on the ground. From the point of view of the people in the vicinity, mostly teenagers, it must have been a very frightening experience.

42. Although Alex was killed in the course of this affray, I accept that none of the offenders who have pleaded guilty to affray is to be sentenced for causing Alex’s death nor for participating in a joint enterprise that may have had as its object the doing of an act with an intention of inflicting grievous bodily harm on him. Nor are they to be sentenced for participating in a joint enterprise with the contemplation that murder was a possible occurrence.

43. In terms of the role in, and moral culpability for, the affray, and for considerations of parity, I would assess Mateaki’s as the most serious. The Crown submitted that Mateaki’s violent behaviour contributed to the escalation of the violence and dangerousness of the scene. Whilst I accept that that is so, it did so in conjunction with the behaviour of the others who were kicking and stomping on Alex while he was on the ground, and the very threatening behaviour of ET. In many respects, there is little to differentiate Mateaki’s behaviour from that of ST, but different pleas have been accepted, and Mateaki must be sentenced accordingly.

44. ET’s role, while marginally less serious overall (at least he did not actually assault anyone), was aggravated by a measure of planning, because he came to the scene with others in order to be involved. His role was also aggravated by his use of a weapon. The description of his use of the weapon was highly likely to have instilled considerable fear in the persons who were in the vicinity. Given that he was swinging the bat around and threatening “Who’s next?”, bystanders had every reason to fear that if they were not deliberately targeted, they might be accidentally struck by the baseball bat.

45. Suliasi’s involvement was brief, shortly after the assault on Alex began, but his role involved a measure of violence. It was the involvement in the violence that was such as to cause persons of reasonable firmness to fear for their personal safety.

46. Sione Mayol’s involvement is the least of the offenders. Whilst he ran and joined the others and remained present whilst a number of them assaulted the deceased, it is not asserted that Mr Mayol’s role was other than being present as part of the group. His participation was at a very low level.

Subjective features

Suliasi Taumalolo

47. Suliasi is now aged 24 years. At the time of the offence he was aged 20 years. He did not give evidence at the sentence proceedings.

48. A report from Kris North, a forensic psychologist, was tendered on his behalf. Ms North had seen Suliasi on one occasion on 7 October 2022.

49. Ms North recorded that Suliasi was one of 10 children born to his parents’ union. His parents were of Tongan descent, but Suliasi was born and grew up in Ingleburn. His family life appears to have been stable. He attended Ingleburn High School and obtained his Higher School Certificate in 2017. There were no learning or behavioural issues at school. He has maintained stable employment since leaving school, working in concreting from late 2017 until his arrest on 14 April 2020.

50. He first commenced drinking alcohol at the age of 17, and that included binge drinking on weekends. He denied any history of problematic alcohol use, but acknowledged that it contributed to his involvement in the affray, in addition to involvement in a previous offence which I will mention shortly. He denied any history of illicit drug use. He denied any history of any mental health issues.

51. He was assessed using the Depression, Anxiety and Stress scale (DASS-42). His scores placed him within the normal range for depression and in a mild range for anxiety.

52. He identified loyalty towards and desire to assist his family as having been a factor in the offending behaviour. He expressed remorse to the psychologist for the victim and the victim’s family saying that his behaviour was “stupid” and that “someone lost their life for nothing”. Remorse is a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Mitigating factors need to be established on the balance of probabilities by an offender. In the absence of even a letter to the Court by Suliasi I am not satisfied simply by what he said to the psychologist that remorse is shown.

53. Suliasi told Ms North that he had completed courses in custody including a Certificate III in Fitness and First Aid, and had worked in special projects in gaol. He said that he had the opportunity of stable employment with his older brother on release from custody. I note that shortly after he went into custody he received a prison infraction for Fight or Other Physical Combat. There are no subsequent prison offences. In all of the circumstances I consider that his prospects of rehabilitation are reasonable.

54. Suliasi has two offences of driving while his licence was suspended, for which he was given a fine and disqualification period in each case. More significantly, on 5 August 2020 he was sentenced for his involvement in an affray on 3  February 2019, and was given a six-month prison sentence. That offence, which included two of his brothers as co-offenders, occurred at Wests League Club in Leumeah. It involved a fight between the group that the offender was with and another group of people, and occurred because of a dispute over a person taking somebody else’s drink. This was the offence mentioned earlier in which his involvement was contributed to by his consumption of alcohol. Suliasi had not been convicted of, nor sentenced for, this offence at the time of the present offending. I do not consider that his record disentitles him to leniency.

55. However, that he was convicted of another affray, committed a short time before the present one, is a factor that feeds into a need for specific deterrence. That is reinforced by the fact that he was punished whilst in custody for Fight or Other Physical Combat.

56. I accept that the offender was a relatively young man at the time and I have had regard to particular principles of sentencing that relate to young offenders such as those set out in KT v The Queen [2008] NSWCCA 51; (2008) A Crim R 112 at [22]-[26]. However, any mitigation by reason of the offender’s relative youth is small when the offence concerned is an offence frequently engaged in by young men when fuelled up on drugs or alcohol or both, and in circumstances where another young man was murdered in the course of the affray.

57. I find special circumstances because I consider that the offender will need additional time under supervision to deal with his alcohol consumption and his need for a program like the EQUIPS Foundation program recommended for him by Ms North. Additionally, this was his first time in custody when he was held on remand for the present offending at least until the sentence for the prior affray was imposed.

ET

58. ET was born in Australia in January 2022. He is now aged 20, and at the time of the offence he was 17.

59. The evidence about ET’s background came from a document prepared by his parents and from a Youth Justice background report of 10 October 2022.

60. ET was the eldest of three children born to his parents. When he was almost nine years old his parents adopted another son, Luke, who was then aged almost 13.

61. In 2011, his family moved to Samoa for approximately one year. They returned to Australia in 2012 for ET’s last few months of primary school. He then attended Eagle Vale High School as an Honours student.

62. In grade nine he began to misbehave at school, and he subsequently admitted to his parents that he self-sabotaged his position as an Honours student because he wanted to be placed in classes with his friends who were not part of that program.

63. In March 2018 when ET was in his senior year at school, Luke committed suicide. That badly affected ET who was very close to Luke and looked up to him. ET became withdrawn, spending more time with his friends and coming home only to sleep. He refused any support for his grief.

64. The author of the Youth Justice report, Brett Boulizos, who is the custodial caseworker at Cobham Youth Justice Centre, said that ET informed him that shortly after his older brother took his own life, ET started involving himself in antisocial behaviour and stopped caring about the consequences for himself.

65. After completing his Year 10 certificate at Eagle Vale High School in 2017, ET engaged in a transition to an employment program where he gained experience in several trades. He worked in a number of different positions in the construction industry. At the time of his arrest he was working part-time for Sydney Wide Showers completing labouring jobs relating to tiling and waterproofing.

66. ET was arrested on 20 March 2020 and sent to Cobham Youth Justice Facility. His parents said that it was from that time that they saw positive changes in him. He began to read fiction, engage in educational programs and attend counselling.

67. ET’s parents say that since being released on bail he has been working at the Coles Distribution Centre in Narellan. They say that he continues to express remorse for the Ioane family and their loss. He voices his acknowledgement and understanding at the sheer unnecessary loss of life that occurred that night and the choices and opportunities that have been taken away from the deceased and his family. He is continuing to meet with a psychologist since his release.

68. Mr Boulizos said that since being admitted into custody ET had shown positive engagement in school and programs. He successfully attained stage 4 on the incentive scheme, which is the highest stage a young person can attain in custody. However, since his admission to custody he had been subject to three misbehaviour reports relating to fighting and arguing.

69. Whilst in custody ET successfully achieved his Year 11 in 2020 and his Year 12 in 2021 via Life Skills Course, and completed two TAFE OTEN certificates in business presentation of attainment.

70. Whilst in custody, ET sought rehabilitation support from the Centre’s psychologist, mentors and caseworkers, particularly in relation to his peers and what constituted healthy relationships.

71. The Youth Justice report recorded that ET had said he was under the influence of both MDMA and alcohol at the time of the offence. Prior to the time of the offence he regularly met up with his peers to engage in recreational substance misuse. In custody he has engaged in Alcohol and Drug programs to address misconception of substance misuse.

72. In relation to the offending, ET told Mr Boulizos that he was hitting the baseball bat on the ground and the fence near the deceased to intimidate other people, and he was shouting out in order to intimidate them.

73. Mr Boulizos reported that ET expressed remorse for what he had done, saying that he had grief for the victim and his family. Mr Boulizos expressed the opinion that ET had developed insight into his behaviour and victim empathy.

74. ET also relied on a letter from Yvette King, a head English teacher at Leumeah High School. Ms King had taught ET when he was at Eagle Vale High School from 2014 until 2018 when he ceased attending the school. After she was informed that he had been incarcerated on the present charge, an arrangement was reached whereby ET would commence weekly literacy lessons under her guidance. These were conducted by Zoom from the Youth Justice Centre where he was held. Ms King spoke highly of the improvement that she has seen in ET since those lessons commenced. She noted, for example, that he had drafted in excess of 80,000 words towards a book of fiction that he has written under her tutelage.

75. Ms King noted that since his release from custody ET had commenced mentoring some of the current Pasifika and Maori Leumeah High School junior students who looked to him for guidance and cultural support. Ms King has noticed the transition and maturation that ET had demonstrated since his time at the Cobham Youth Justice Centre and particularly since his release.

76. The present offence is not the first offence for which the offender has been convicted, nor is it the first offence of affray.

77. In a manner somewhat similar to the present offending, an argument commenced between two groups of diners at a restaurant in Leumeah in March 2019. After the groups left the restaurant a fight erupted outside the restaurant. It spread to a nearby carpark. During the brawl, involving about 15 people, ET arrived at the scene with a number of other identified males. On that occasion, on arrival, he ran immediately into the fight and commenced to punch and kick other persons. He was sentenced at Campbelltown Children’s Court on 1  December 2020, subsequent to his present arrest, to probation for six months. That was served in its entirety whilst he was in custody for the present offending.

78. By the time of that sentence he had already been sentenced on 16 December 2019 for four offences of throwing a missile at a police officer, public disorder, riot, and possessing in a public place a non-firearm for discharging an irritant. For the offence of riot he was sentenced to 40 hours of community service, and for the remaining offences to probation for 12 months in respect of each. That offending took place on 14 September 2019. The time on probation was entirely served whilst in custody for the present offending.

79. The offence of affray is not a serious children’s indictable offence: s 3(1) Children (Criminal Proceedings) Act 1987 (NSW). However, as the offence of affray is an indictable offence, the offender may be dealt with according to law or in accordance with Div 4 Pt 2 of the Children (Criminal Proceedings) Act: see ss 16, 18(1).

80. The Crown submits that the offender should be dealt with according to law because of the serious nature of the offence committed, because of the offender’s age at the time of the offending and now, and because of the other offences in respect of which he has been convicted. Mr Johnson of counsel for the offender does not submit that the Court would do otherwise than deal with the offender according to law. Nevertheless, in ET’s case (and in the case of ST), the principles in relation to young offenders have greater significance than with the co-offenders who were not young persons at the time of offending. Further, it is necessary for regard to be had to the provisions of s 6 of the Children (Criminal Proceedings) Act. I have had regard to those principles for both ET and ST.

81. Mr Johnson submitted that the significance or otherwise of the offender’s age and asserted immaturity turns on whether the Court considers that ET engaged in “adult behaviour” and an assessment of the objective gravity of the offence. He submitted that ET’s conduct would not be described as “adult behaviour” such that it would significantly diminish the emphasis to be placed on rehabilitation.

82. In my opinion, rehabilitation is a significant matter in relation to ET, but that does not significantly reduce the importance of general deterrence for the sort of behaviour engaged in by ET and the co-offenders. As I mentioned in relation to Suliasi, this type of offence is precisely the sort of offence in which young men and young persons nearing the age of 18 engage. So much is evident from ET’s own criminal history on two occasions.

83. The importance of rehabilitation in ET’s case comes particularly from the evidence I have about him from his parents, his English teacher, and Mr Boulizos. It seems to me that there is a clear connection between the death of ET’s older brother Luke and the course of offending in which he engaged in 2019. The evidence suggests that he has been able to deal with what flowed from Luke’s death, particularly by reason of his incarceration on remand for this offence. The evidence would suggest, however, that he has returned to being the sort of person that he was mostly before Luke’s death. He should be assisted in continuing in that path as far as is possible.

84. Given the other offences in respect of which ET was convicted, specific deterrence has some role to play in the sentence, but I accept that the likelihood is that the progress ET has made while in detention means that his risk of reoffending is low.

85. Whilst I accept that there is no direct evidence from him about remorse, I am prepared to accept, on the basis of all the material I have about him, that he is remorseful for what happened.

86. I make a finding of special circumstances because of ET’s youth. He will also need more time under supervision to ensure a smooth transition back into the community, despite the progress he has made in custody.

ST

87. ST was born in April 2002. At the time of the events in question he was aged 17 years and one month. He did not give evidence at the sentence hearing.

88. He was assessed by Dr Richard Furst on 27 May 2020 via AVL. Dr Furst did not have available to him any psychometric testing. However, as a result of his clinical presentation and the school history provided to Dr Furst, Dr Furst suggested that ST was of lower than average intelligence. He said that he was unable to exclude an intellectual disability, but his clinical presentation suggested ST’s intellectual function likely fell somewhere between the borderline intellectually disabled range and below average range.

89. On 18 August 2021 ST underwent an assessment and two hours of psychometric testing (albeit via AVL) by Peter Ashkar, a psychologist. Dr Ashkar concluded that ST’s verbal intellectual skills were borderline impaired, and his receptive language skills were extremely low with an age equivalent to that of a nine-year-old child.

90. The history provided to Dr Ashkar, and subsequently to the psychologist Dr Julie Dombrowski who assessed ST on 6 September 2022, disclosed difficulties at school from an early time. He had early problems with reading and spelling. By the time he was in secondary school he was placed in support classes. He said that he got teased at school for being dumb. He frequently truanted both from primary and secondary school, and engaged in misbehaviour including property damage and fighting. Although he progressed to year 10 he had completed very little of his schooling since year 7.

91. ST did not have a deprived childhood or home life. He described his parents as being loving but “old school”, that is, they conformed with traditional Tongan cultural practices and beliefs. He said his father was often away from home working long hours, and his mother spoke only Tongan which ST also learned in addition to English. In that way he told Dr Dombrowski that he felt somewhat alienated from his parents. He said he was regularly bullied by his older brother (Tafuna) who taunted and physically assaulted him and stole his belongings. He told Dr Dombrowski that he loved his brother but feared angering him.

92. After leaving school he worked briefly with a cousin as a furniture removalist, with another cousin as a construction labourer, and as a landscape gardener. He was working as a landscape gardener at the time of his arrest.

93. There were some relatively minor discrepancies in his drug and alcohol history given to Dr Furst and Dr Dombrowski, but I do not think those differences are significant. He started using alcohol and cannabis at the age of 14 or 15, and used them heavily on weekends throughout adolescence until his arrest and incarceration. Sometimes he used alcohol and cannabis on school days which further impaired his behaviour and learning. He had also occasionally used cocaine. He used these substances to conform with his peer group and because he enjoyed feeling intoxicated.

94. He commenced offending at the age of 15 and developed an antagonistic relationship with local police officers whom he felt regularly used excessive force and assaulted him on more than one occasion. Dr Dombrowski reported that since being in youth detention he has undertaken a number of programs which have enabled him to see that as an adolescent he engaged in bad behaviour, that he deserved the punishment given to him, and that the police were simply doing their job.

95. The first offences for which he was charged occurred in January and February 2017. The offences for which he was convicted at that time were assault occasioning actual bodily harm in company, destroy or damage property and resist an officer in the execution of his duty. For those offences he was given a s 33 bond for six months.

96. In 2018 he was convicted of driving a vehicle when not licensed to do so, and was given a $500.00 fine.

97. Without diminishing the seriousness of the offence of assault occasioning actual bodily harm in company (it has obvious relevance to the present offending), ST’s prior offending should not deny him leniency for the present offending.

98. What is more troubling is the fact that whilst in youth detention he was convicted of an affray and assault occasioning actual bodily harm which occurred in February 2020, and an offence of possessing an offensive weapon in a place of detention in May of 2020. For the affray he received a three month control order, and for the assault occasioning actual bodily harm he received an eight month control order with the time served to be concurrent. As further punishment by the authorities at the youth detention centre, he was placed into segregation for three months.

99. For the offence of possessing an offensive weapon he was sentenced to a community correction order for 12 months, although the entirety of that was served during his time in custody. These offences committed subsequent to the manslaughter are relevant to the issue of specific deterrence and to rehabilitation and reoffending prospects.

100. ST told Dr Dombrowski that he had used approximately 1.5 grams of cannabis before the party and consumed approximately 1.125 litres of beer whilst at the party, and that he felt mildly to moderately intoxicated. He said his cousins and brother became involved in several altercations with other partygoers, and he became involved in some to support his relatives. He said the altercations quickly escalated and he struggled to comprehend what was occurring. When he saw his brother in an altercation with the deceased he went to support him.

87. It should be noted that prior to his assaulting the deceased, he had assaulted another person at the party by the name of Aaron Harrison. He was convicted of assault occasioning actual bodily harm for that incident, and sentenced to probation for 14 months. The whole of that probation was also served whilst in custody on remand for the present offence.

88. When he first went into detention in May 2019 he struggled to manage his behaviour. He did not respond well to staff and other authority figures which resulted in the criminal charges referred to above at [98] and [99], multiple behaviour violation reports and periods in segregation.

89. Subsequently he completed two culture-specific programs which he found helpful, particularly in relation to developing alternative anger management and violence reduction strategies, as well as improving his relationship with authority figures and modifying his antisocial attitude and beliefs. He has completed Year 12 whilst in detention and has also obtained some certificates in various skills.

90. With the assistance of his caseworker, ST has written a long letter to the Court where he has said how deeply sorry he is for the pain and hurt that he has caused Alex Ioane’s family. He has admitted his bad behaviour when he first went into detention, but has explained how the programs he has undertaken there have assisted him. Although he has not given evidence at the sentence proceedings, I am prepared to accept that he is remorseful for his part in Alex’s death. He made similar expressions of remorse to Dr Dombrowski and to his caseworker, Tom Penn.

91. There is a lengthy background report from Mr Penn which deals with the courses ST has undertaken and the changes that have occurred in his attitude and behaviour as a result of participating in these courses. The report speaks in very positive terms in relation to what ST has achieved whilst in custody.

92. Whilst his offending in custody is troubling, particularly because it demonstrates a continuation of the sort of offending that predated the events leading to Alex’s death, I can accept from Mr Penn’s report that matters have changed considerably since that offending by reason of the courses ST has undertaken, and the change in his attitude and values. To put it bluntly, going into youth detention may have been his saving grace.

93. Although ST will need ongoing assistance when released on parole, I assess his prospects of rehabilitation as good and his risk of reoffending as low, particularly if he remains abstinent from illicit drugs, and learns how to deal with alcohol.

94. Mr Wilson of Senior Counsel submitted that, while general deterrence was a relevant factor in any sentence, there was some room for its attenuation by reason of ST’s youth and immaturity. In that regard, he submitted that, whilst Bugmy factors did not come into full force, the effects of his learning and intellectual difficulties which so badly affected his schooling, and his feelings of alienation from his family, for the reasons discussed earlier, amounted to analogous disadvantage and deprivation. That background was said by Ms Dombrowski to have been a cause of his offending because of his social immaturity and antisocial peer influences.

95. While accepting those submissions, I cannot accept that general deterrence does not have some significance in this offending. As I said when sentencing Tafuna, the behaviour that gave rise to Alex’s death is frequently that exhibited by young men fuelled by drugs, alcohol, masculine bravado, and a group mentality. This wasn’t just a punch-up between two equally matched young men, unacceptable in any event; it was one person being set upon by a group in a cowardly and vicious fashion.

96. I also said:

Young men and adolescents need to understand that if they consume large amounts of alcohol and drugs, and become involved in violent altercations leading to the death of a person, they cannot expect much allowance to be made for the fact that they are young and emotionally immature. Long prison sentences will follow. The Court of Criminal Appeal made clear in R v Loveridge [2014] NSWCCA 120 at [103]-[105] that general deterrence should be given substantial weight, notwithstanding the youth of the offenders in cases involving young men in company and under the influence of drugs and alcohol.

111. ST appears to have joined in, not because of any disagreement he had with Alex, but merely to support his brother Tafuna, who was the aggressor in any event. Nevertheless, that support likely derived not only from ST’s intellectual difficulties, but also from both his desire to please, and the fear he had of, his brother. General deterrence has a diminished role to play with ST, but not with the other offenders guilty of affray.

112. On the other hand, specific deterrence in respect of ST is of some significance in the light of his criminal record both before and after the fight leading to Alex’s death.

113. I make a finding of special circumstances to vary the statutory ratio. ST has made great strides whilst in custody but he will need a longer period under supervision to adjust to life in the community without the strictures on him in custody.

Mateaki

114. Mateaki Taumalolo did not give evidence at the sentence proceedings. There was tendered on his behalf a report from Dr Olav Nielssen of 25 October 2022, an affidavit from his sister Malika indicating that she is prepared to support him when he comes to live with her, an affidavit from his brother Elimeleki who will employ Mateaki in the concrete company called Mex and Brother’s Concrete Pty Ltd, and a character reference from a former employer.

115. The report from Dr Nielssen disclosed that Mateaki was the fifth of his parents’ ten children. His parents were from Tonga. His father was a pastor and his mother was an aged care nurse. Mateaki said he was close to his extended family and attended church services most Sundays when in the community. He had formerly played rugby league but had ceased that. He played guitar to a high standard. He had worked as a concreter.

116. He said that he did relatively well at school and completed year 10 without having conduct problems. He did not say when he first started using alcohol, but he developed a pattern of drinking until he felt drunk most weekends with friends from around the time he started work. He reported some episodes of amnesia whilst intoxicated but no other disturbed behaviour when affected by alcohol. He denied using cannabis or other illegal drugs.

117. On the night in question he estimated that he had drunk six bottles of mixed spirit drink and said that he was drunk. He said that a fight broke out between two groups and he became involved. He said he did not know why the fight started or the detail of the other person’s injuries. It was not true, of course, that he became involved in a fight between two groups. One person, Alex Ioane was set upon, first by Tafuna and then by a number of others including Mateaki and other members of his extended family.

118. Although Mateaki’s criminal record shows convictions for affray both before and after the events the subject of this sentence, he told Dr Nielssen that he did not believe he was an aggressive or bad tempered person and said that he generally tried to avoid trouble. The facts surrounding both the present offence and the other two affrays demonstrate otherwise. These statements to Dr Nielssen indicate that Mateaki has limited insight into his motivations and actions. All of the affrays tend to suggest that he engaged in gratuitous violence in a way that was completely unprovoked as far as he was concerned. Moreover, since going into custody on 15 April 2020 he has had 12 incidents in prison leading to various forms of punishment, including three for Fight or Other Physical Combat, and others for Intimidation and Assault.

119. Despite his denial to Dr Nielssen about using cannabis or other illegal drugs, and his statement that “he was not taking any mind altering medication at the time of the offence or in prison”, three of his prison offences were for possessing drugs.

120. He told Dr Nielssen that he had not completed any kind of alcohol use course or counselling but planned to give up drinking permanently. He told Dr Nielssen that he was remorseful about Alex, that he felt sorry that he died, that it should not have happened, and that it ruined his family’s life as well. The character referee who employed him said that he had known him for ten years and had always known him to be a hardworking person with great work ethics and always willing to support his family. He described Mateaki as an honourable, kind and caring man.

121. In November 2019 Police put out a media release with a photo of Mateaki, asking for assistance in identifying him in relation to enquiries regarding Alex’s death. Mateaki, thereafter, at the instigation of his brother Suliasi and, apparently, his then lawyer, deactivated his social media, and changed his appearance to avoid detection. This is a matter I take into account in relation to the issue of remorse.

122. The only evidence I have of any remorse is a statement in Dr Nielssen’s report where Mateaki said: “I did not know him but I am remorseful about Alex…I feel sorry that he died…it should not have happened…it ruined my family’s life too…two of my cousins got locked up for it and my brother”. Despite the early offer of a plea of guilty to manslaughter, and taking into account the attempts to avoid detection, in the absence of any evidence from Mateaki, even in the form of a letter to the Court, I am not satisfied that the expression of remorse recorded in Dr Nielssen’s report constitutes a mitigating factor within the meaning of s 21A(3)(i) of the Sentencing Act. I do not make a finding that Mateaki is remorseful.

123. In the light of his criminal history, although it does not disentitle him to leniency, I have reservations about his risk of reoffending and his prospects for rehabilitation unless serious attempts are made to deal with what was, according to Dr Nielssen, an alcohol use disorder for some years, and what I perceive to be his tendency towards violence, into which he appears to have no insight.

124. I take into account that Mateaki was aged 18 years and 9 months at the time of the offending. The comments I made in relation to these sorts of offences committed by young men are equally applicable to Mateaki.

125. I note that he has support from his family, and an offer of a job from his brother Elemiliki. Subsequent information provided to me indicates that Elimeleki has on 5 December 2022 pleaded guilty to one count of Conceal Serious Indictable Offence, that offence being Affray. He is to be sentenced on 1 February 2023. That may impact on whether Mateaki will have a job to go to.

126. I make a finding of special circumstances on the basis that Mateaki needs an extra period under supervision to deal with his problems of alcohol and violence.

Sione Mayol

127. Mr Mayol was born in April 1997 and was aged 22 at the time of the offending. He did not give evidence at the sentence hearing. Moreover, minimal information is available in relation to him. There is no psychological or psychiatric report or any other document providing the usual summary of the offender’s background, as one might expect. Instead, there are a series of character references by a number of members of Mr Mayol’s family and three ministers of religion. There is also a Sentencing Assessment Report which provides some brief material about Mr Mayol’s involvement in the offence.

128. The Sentencing Assessment Report says that at the time of the offending he resided with his grandmother in what appeared to be stable accommodation. He had a large immediate and extended family and was considered family- oriented by members of his family. In the past he has primarily worked with his father in concreting and planned to resume that work once the proceedings were finalised. I was informed from the Bar table by his senior counsel that, despite the Sentencing Assessment Report saying that he is presently unemployed, he has in fact resumed working for his father.

129. Mr Mayol told the author of the report that he was “off his head” on the night of the offence due to his chronic substance abuse. He only had vague recollections of what occurred and that was because of his alcohol and substance use. He could not recall participating in any violent action, although the report said that he appeared to be of the belief that he had participated in the assault. He told the author of the report that he was using Ice daily at the time, in addition to consuming significant amounts of alcohol. He was spending about $1,000.00 a week on illicit substances and alcohol.

130. His family members speak very highly of him in their character references although they acknowledge the offence which he committed. Only one of the referees, his older sister Lavinia, gave any indication that he had been otherwise than an upstanding person. She was prepared to say that he had had his fair share of mistakes and had run into trouble here and there. Some of the referees say that he is remorseful for what has occurred, although there is no reference to that in the Sentencing Assessment Report.

131. In his favour it should be noted that he has no prior or subsequent criminal convictions. However, apart from the Sentencing Assessment Report saying that he ceased using illicit substances and alcohol on going into custody, there is no other evidence to assist in an assessment of his likely reoffending and his rehabilitation. I note that that report assessed him as being of low risk of offending according to the Level of Service Inventory.

132. The difficulty I have in reaching any positive view about his likely rehabilitation or risk of reoffending is that he clearly had a significant drug and alcohol problem (the report refers to his “chronic substance abuse” for three years), and $1000 per week on drugs and alcohol is significant consumption. I do not know much about his background, although I can discern from the various references that his parents appear to have lived separately from early in his life and that he seems to have been brought up partly by his maternal grandmother. His sister said that he did well at school but does not say to what level he went. I do not know how, and in what circumstances, he commenced using alcohol or drugs, nor how he became involved with the co-offenders.

133. The Sentencing Assessment Report indicates that Mr Mayol was willing to participate with any community based services “as directed” by Community Corrections, but that is not a plan for a person who had chronic substance use, was spending $1000 per week on drugs and alcohol, and whose use of it involved him in this offending.

134. The one matter in his favour in relation to rehabilitation and reoffending is that he has no other criminal convictions. Nevertheless, in the absence of any other evidence, I can make no findings favourable to Mr Mayol about these two matters.

135. Mr Mayol has written a letter to the Court headed “Letter of apology”. In that letter he makes reference to not having been in a right state of mind due to drugs and alcohol that led to his involvement in the brawl. He accepts that this is no excuse for his behaviour. He said that he takes full responsibility and was very remorseful for his involvement, not only because it had changed his life but also because he understood the large impact it had on those who were close to Alex. Given what is contained in that letter and also in a number of the references provided, I am prepared to accept that Mr Mayol is remorseful for his actions and what occurred.

136. Whilst I accept that he was a relatively young man at the time of the offending, he was the eldest of the offenders. Much less consideration can be given to him by reason of his youth, and there is nothing to limit the significance of general deterrence in his case.

137. I make a finding of special circumstances. Of all of the offenders he appears to need the most assistance to deal with his significant drug and alcohol problem. I intend to allow a much longer time on parole for that purpose.

Victim Impact Statement

138. A moving victim impact statement, prepared by Alex’s family, was read by two of his sisters at each of the sentence hearings. The family has been devastated by his death and the circumstances of it. It is apparent that he was a greatly loved son, brother and uncle to his family. I again extend my sympathy to all the members of Alex’s family for their loss.

139. The Crown does not ask me to take the Statement into account in accordance with s 30E(3) of the Sentencing Act.

Covid-19 and delay

140. I accept that all of the offenders have experienced custody more onerously than would otherwise be the case by reason of Covid-19 restrictions, both in terms of lockdowns and limitations on visits by family and friends. Further, this trial was first fixed to commence on 5 October 2021. That date had to be vacated because of the lockdown of the State. The delay in finalising the matter is a factor I will take into account.

Discounts for pleas

141. ET offered to plead guilty to affray at case conference. That plea was not accepted by the Crown until 1 July 2022. ET is entitled to a discount of 25%.

142. Suliasi also offered to plead guilty to affray at case conference. The pleas was not accepted by the Crown until 1 July 2022. Suliasi is also entitled to a discount of 25%.

143. ST offered, at an early stage, to plead guilty to manslaughter. That offer was ultimately accepted in July 2022. ST is entitled to a discount of 25%.

144. As I have said earlier, Mateaki offered to plead guilty to manslaughter at case conference. That plea was rejected by the Crown. Subsequently, his plea to affray was accepted by the Crown. He is entitled, pursuant to s 25E(2) and (3)(a) of the Sentencing Act, to a discount of 25%.

145. Mr Mayol was first charged with murder and affray in May 2021 by an ex officio indictment. He did not offer to plead to affray until 1 July 2022. Ms Davenport submitted that because he was thereby deprived of the benefits of the EAGP system he should receive a 10% discount for the late plea. Ms Davenport accepted, however, that part of the reason for the late charging was the fact that Mr Mayol avoided the police for a lengthy period of time. In any event, he had 13 months to offer to plead to the offence. I consider that he is entitled to a discount of 5%.

Sentences

Suliasi

146. Suliasi was arrested on 14 April 2020 and charged with affray. He went into custody on that day. In May 2020 he was charged with murder. On 5 August 2020 he was sentenced to six months’ imprisonment for an affray which occurred on 3 February 2019. The sentence ran from 14 April 2020 until 13 October 2020. The Crown submitted that the sentence for the present offence should be backdated to commence on 14 October 2020 on the basis that it was a separate and unrelated affray. However, had Suliasi been sentenced for that affray and the present one at the same time it is likely that there would have been some concurrency accorded. In those circumstances, the issue of totality should be dealt with by commencing the present sentence on 14 July 2020 rather than 14 April 2020.

147. Had it not been for his plea I would have imposed a sentence of 5 years imprisonment. The overall sentence will be, therefore, 3 years and 9 months with a non-parole period of 2 years and 3 months commencing 14 July 2020 and expiring 13 October 2022.

ET

148. ET was arrested on 20 March 2020, and went into custody on that day. He was released on bail on 6 July 2022. His time in custody was 2 years, 3 months and 17 days.

149. Had it not been for his plea I would have imposed an overall sentence of 4 years and 6 months imprisonment. The overall sentence will, therefore, be 3 years and 4 months commencing 20 March 2020 and expiring 19 July 2023. The non-parole period will be 2 years expiring 19 March 2022.

ST

150. ST went into custody on 26 May 2019; that is a period of 3 years 6 months and 19 days. However, on 16 February 2021 he was sentenced for affray and assault occasioning actual bodily harm committed whilst in custody. For those offences he received, overall, a control order of 8 months with a non-parole period of 5 months commencing 1 May 2020 and concluding 30 September 2020. As noted earlier, he received an additional punishment imposed by the detention centre of 3 months’ segregation. In those circumstances, it is appropriate to make part of the non-parole period of the control order concurrent with the sentence to be imposed for the present offence. I will, therefore, commence the present sentence from 26 August 2019.

151. Had it not been for his plea, I would have sentenced ST to an overall sentence of 9 years’ imprisonment. The overall sentence will, therefore, be 6 years and 9 months’ imprisonment. I have already indicated that I find special circumstances to vary the statutory ratio. He should serve a non-parole period of imprisonment for 4 years and 1 month. That sentence will commence, as I have said, on 26 August 2019. The non-parole period will expire on 25 September 2023.

152. Section 19 of the Children (Criminal Proceedings) Act 1987 (NSW) relevantly provides:

(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.

(1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless -

(a) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(b) …

(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless -

(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(c) …

This subsection is subject to subsection (2).

(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise -

(a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977),

(b) that the only available educational, vocational training or therapeutic programs that are suitable to the person’s needs are those available in detention centres,

(c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person’s offence, any assistance given by the person in the prosecution of other persons or otherwise.

(4A) In particular, a finding of special circumstances may not be made simply because of the person’s youth or simply because the non-parole period of the person’s sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.

(4B) A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.

153. ST is currently aged 20 years and 8 months. ST will turn 21 on 1 April 2023. His non-parole period will expire within 6 months of ST turning 21.

154. The matters I have set out at [103] to [106] above, and particularly the Youth Justice report detailing the programs undertaken by ST and the ongoing psychological counselling he has been having, satisfy me that there are special circumstances that justify ST serving the remainder of his sentence as a juvenile offender. I am satisfied that the only available educational and therapeutic programs suitable to ST’s needs are at the detention centres where he has been held, and particularly at Cobham Youth Justice Centre.

155. I note also what Dr Dombrowski said in her report:

[ST] is young, he has no prior experience in an adult correctional facility, and his communication and language skills are limited, all of which will make his experience of adult incarceration especially onerous for him….His incarceration in an adult correctional facility will also increase his involvement with a more serious and entrenched group of antisocial and criminal peers, which will almost certainly undermine his psychological and prosocial development (which is particularly vulnerable and malleable at this stage in his development). Minimising his exposure to the socially toxic environments of adult correctional facilities will be important in supporting his rehabilitation and reducing his risk of reoffending into the future.

156. The Courts have also recognised the risks of placing young men in adult correctional facilities. In Buckley v R [2022] VSCA 138, the Victorian Court of Appeal recently said at [10]:

Youth Justice Centres are certainly not problem-free, but they provide young offenders, often from very troubled circumstances, with a pathway to a useful and fulfilling life. Importantly, young detainees are not exposed to the corrosive influence of older, hardened criminals.

157. I am further satisfied that if ST were committed to an adult correctional centre there would be an unacceptable risk of his suffering psychological harm.

Mateaki

158. Mateaki went into custody on 15 April 2020. That is a period of two years and 9 months. However, on 10 August 2020 he was sentenced for the affray which preceded the present offending to 4 months’ imprisonment from 15 April 2020 to 14 August 2020. On 10 February 2021 he was sentenced for the affray he involved himself in whilst in prison to 3 months’ imprisonment commencing 10 February 2021 to 9 May 2021.

159. I accept that there should be concurrency of 2 months for the former affray, but no concurrency for the latter. The net result is that the present sentence should commence, not on 15 April 2020 but on 15 September 2020.

160. Had it not been for his plea, I would have imposed a sentence of 5 years. The overall sentence will, therefore, be 3 years and 9 months’ imprisonment. I set a non-parole period of 2 years and 4 months commencing 15 September 2020 and expiring 14 January 2023.

Sione Mayol

161. Mr Mayol went into custody on 18 May 2021 and was released on bail on 12 July 2022, a period of 1 year, 1 month and 25 days.

162. Mr Mayol’s involvement in the affray was, as I have said, significantly less than the other offenders. There is no evidence that he engaged in the violence that was occurring; he was merely present at the scene near to where Alex was being assaulted.

163. Had it not been for his plea I would have imposed a sentence of 3 years’ imprisonment. The overall sentence will, therefore, be 2 years and 9 months’ imprisonment (rounded down). The non-parole period will be the time he has spent in custody of 1 year, 1 month and 25 days commencing 18 May 2021 and expiring 12 July 2022. There will be a balance of term of 1 year 7 months and 5 days expiring 16 February 2024.

164. It is regrettable that some of the non-parole periods have expired before those offenders were released from custody. However, all offenders were being held on remand for murder until the alternative pleas were entered on 1 July 2022. Difficult questions then arose because of the recent enactment of s 22B of the Bail Act 2013 (NSW).

165. Suliasi Taumalolo, I convict you of the offence of affray. I sentence you to imprisonment with a non-parole period of 2 years and 3 months commencing 14 July 2020 and expiring 13 October 2022 with a balance of term of 1 year and 6 months expiring 12 April 2024. Suliasi is now eligible for parole.

166. ET, I convict you of the offence of affray. I sentence you to imprisonment with a non-parole of 2 years commencing 20 March 2020 expiring on 19 March 2022 with a balance of term of 1 year and 4 months expiring 19 July 2023. Order that ET serve the sentence as a juvenile offender.

167. ST, I convict you of the offence of manslaughter. I sentence you to imprisonment with a non-parole period of 4 years and 1 month commencing 26 August 2019 and expiring 25 September 2023 with a balance of term of 2 years and 8 months expiring 25 May 2026. You are first eligible for parole on 25 September 2023. I order that the sentence be served as a juvenile offender.

168. Mateaki Taumalolo, I convict you of the offence of affray. I sentence you to imprisonment with a non-parole period of 2 years and 4 months commencing 15 September 2020 and expiring 14 January 2023 with a balance of term of 1 year and 5 months expiring 14 June 2024. You are first eligible for parole on 14 January 2023.

169. Sione Mayol, I convict you of the offence of affray. I sentence you to imprisonment with a non-parole period of 1 year 1 month and 25 days commencing 18 May 2021 and expiring 12 July 2022 with a balance of term of 1 year 7 months and 5 days expiring 16 February 2024.

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Amendments

14 December 2022 - Typographical errors in [163] and [169].

Decision last updated: 14 December 2022