R v Tafa
[2022] VSC 466
•19 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0327
| THE QUEEN | Crown |
| v | |
| TAATAA TAFA | Accused |
---
JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 July 2022 |
DATE OF SENTENCE: | 19 August 2022 |
CASE MAY BE CITED AS: | R v Tafa |
MEDIUM NEUTRAL CITATION: | [2022] VSC 466 |
---
CRIMINAL LAW – Sentence – Accused aged 22 – Accused charged with violent disorder – Accused part of group of ten youths who attacked another youth in a public carpark – Plea of guilty – Denunciation – General deterrence – Specific deterrence – Protection of community – Moderate prospects of rehabilitation – Prospect of deportation – Crimes Act 1958, s 195I, Migration Act 1958, s 501.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr E Dober | Office of Public Prosecutions |
| For the Accused | Mr D Sala with Ms N Freijah | Emma Turnbull Lawyers |
HER HONOUR:
Taataa Tafa, you have pleaded guilty to violent disorder.
The maximum penalty for this offence is ten years’ imprisonment.
Summary of offending
Your conduct in joining with nine male youths to both threaten and use unlawful violence against Solomone Taufeulungaki with the common intention of assaulting him, which conduct caused injury, was most serious.
Your involvement in these matters stems from your membership of a gang known as BH or Brotherhood. That gang was allied with another known as 97. BH and 97 both operated in the Western suburbs and were, together, in conflict with another Western suburbs youth gang known as VB or Vavau Brothers.
In mid-June 2020 that conflict was escalating.
On 11 June 2020 seven members of BH/97, including you, attended a prearranged meeting with two members of ‘VB Youngins’, being younger members of VB, on a grassed area of the Brimbank Shopping Centre. NT,[1] associated with BH/97, and SM, associated with VB Youngins, had agreed to take part in a ‘one-on-one’ fight. The fight lasted several minutes and some BH/97 members filmed it using mobile phones.
[1]To ensure there is no possibility of the identification of persons under 18 years, this judgment has been anonymised by the adoption of pseudonyms in place of the names of persons under 18 years.
At the end of the fight SM and his friend, SK, attempted to leave. BH/97 members demanded they take part in another fight. SK fought IT.
When it appeared that SK was gaining the upper hand, BH/97 members intervened. SK was kicked to the head from behind rendering him unconscious. You, IT and VN continued to kick SK to his head as he lay motionless on the ground. The situation ended when SK’s sister ran to assist him. The incident was not reported to police.
Thereafter friends of SM and SK, being members or associates of VB Youngins, planned a further altercation with BH/97 members at the Brimbank Shopping Centre for 15 June 2020. You discussed this with DP via an Instagram live video chat.
On 15 June 2020 five BH/97 members attended the Brimbank Shopping Centre. Three went inside leaving two in the Woolworths carpark area. SK and a number of other friends arrived. SK asked if one of the two was from ‘BH.’ An affirmative answer triggered a fight in which the two BH/97 members were significantly outnumbered.
Later in the evening BH/97 members used social media platforms to signify an intention to get revenge. You posted the following on Instagram:
make sure u arrange your youngins funeral since yous got all that money should of dipped niggers cause now my crew hungry for blood stay woke you kids think you can get away with what yous did ahahah already have
The following day Solomone, SO and KG were confronted by BH/97 members as they left school and walked to the bus stop. Solomone was friends with some members of VB Youngins. He was not involved in either of the prior incidents. When questioned, Solomone and the others denied they were part of VB and denied any involvement in the fight the day before. They were attacked by the BH/97 members, some of whom were armed, before managing to escape.
The BH/97 members then caught the bus to the Brimbank Shopping Centre. A few minutes after arriving, you walked away from the group after observing four children in school uniform. One of them was JS. You then waved to the rest of the group to assist. JS and his friends saw you and ran into the shopping centre to escape.
You and the other BH/97 members starting chasing the boys through the centre. JS took refuge inside a store and called 000 to request assistance. His friends were chased by your group out of the centre. They managed to evade you. Your group split into two. Five searched inside the centre. Five, including you, searched the outside of the shopping centre. The group of ten then reassembled at the Deer Park Skate Bowl opposite the shopping centre.
There you discussed Solomone and his alleged responsibility for an incident in which members of BH/97 were assaulted. The group then returned to the shopping centre.
In the meantime, Solomone and KG had been picked up by KG’s mother, Vaifoa G, uncle, Luke Mears, and brother, CG. On the way to drop Solomone home, KG received a phone call advising him that his younger brother KZ was being chased by members of BH/97 at the Brimbank Shopping Centre.
Vaifoa drove to the shopping centre. Upon arrival all occupants of the car began searching for KZ.
CG saw and spoke to your group in the carpark. You argued with him and said that CG’s brother was talking shit about your gang. You pointed a baseball bat towards CG. Two others of your group had knives. You agreed to leave CG’s brother alone. You told the others of your group ‘no one touch his brother’.
Solomone then entered the carpark. One of your group yelled ‘look, there’s Solo’. Another, possibly you, yelled ‘get him’.
You and the other nine of your group ran towards Solomone. Two had knives. You had a baseball bat. Another had a glass bottle held by the neck. Yet another an extendable black baton. Upon seeing you, Solomone started to run in the opposite direction.
The first of your group to reach Solomone dragged him to the ground by his clothing. The rest of the group joined and punched, struck and kicked Solomone as he lay on the ground. Solomone assumed a foetal position, with his arms up trying to protect his head. He was struck with the baseball bat and extendable baton. He was also stabbed once to the chest.
Luke Mears ran to assist Solomone and was confronted by one of your group with a knife. Vaifoa and CG then stepped in. You, along with the other BH/97 members, walked away.
Solomone attempted to regain his feet, but stumbled and collapsed on the ground. Police and paramedics arrived shortly thereafter. Solomone could not be revived and was declared deceased. A subsequent post mortem examination revealed Solomone to have died from a single penetrating stab wound to the left chest. He had also suffered a left haemothorax (blood collecting between the chest wall and lungs), left lung atelectasis (collapse), subcutaneous bruising to the lateral right knee region and lateral distal thigh and minor bruising to the left arm.
Upon fleeing the scene, you and another member went to the underground carpark. You removed your jumper and altered your hair style. You disposed of the jumper in a bin in the shopping centre before leaving the area on a bus.
You were arrested on 21 July 2022. Initially you denied knowing Solomone. You then said that you tried to diffuse the situation and that you observed but did not participate in the incident. You eventually conceded that you had attended the shopping centre because one of your friends was ‘jumped’ the day before.
Analysis of your phone revealed electronic items concerning your involvement in ‘BH’ and your hatred for VB, including apparent song lyrics authored by you.
Victim impact statements
I have received and considered four impact statements.
Solomone’s mother is reminded by her husband and older sons that she needs to be strong for the family. She writes that Solomone wanted to be a police officer and play rugby for the All Blacks. She said he was a good boy and willing helper. She said that she will hold her son close within her heart forever.
KG wrote of losing his best friend and how his closest friends then moved from his school out of fear. He describes a feeling of loneliness and of missing Solomone daily. His parents now do not like him and his siblings leaving the house and he feels unsafe in public spaces.
Vaifoa G writes that her son wakes in the night crying for his best friend and of her other children who wake with nightmares. She now drives her children to and from school and will not allow them to go to the library or mall unaccompanied. She writes of her feeling of grief that she did not take Solomone home safely that day.
Rebecca Bugg, a witness to the incident, writes of difficulty sleeping, eating and attending to daily tasks. Her fear and anxiety led her to move with her children to a different area and also to avoid crowds.
Although you are not being punished for the death of Solomone, it is clear that your actions have contributed to the ongoing grief and fear of others.
Personal circumstances
It is necessary to say something of your personal circumstances.
You were 20 years of age at the time of your offending. You are now aged 22 years.
You were born in New Zealand to Samoan parents. You are the eldest of five children. You moved to Australia at the age of ten when your family settled in Cairns. Then followed a brief relocation to Brisbane before a move to Melbourne when you were 14 years.
Your home life was unhappy. Your father is an alcoholic and you suffered violence at his hands. Both parents were heavy gamblers. They separated and reunited frequently. During the times they were apart they fought over the children. As the eldest son a cultural burden fell on your shoulders. You were frequently removed from school to help with work and domestic arrangements. The family was religious and you attended Pentecostal churches as well as worship with the Seventh-day Adventist church.
You were close with your paternal grandmother who lived with the family. But you left home at 16 years of age to live on your own. You have had little contact with your parents since. Although once close to your siblings, you now have little contact with them save for your next eldest brother. You are currently living with your stepmother, being a woman with whom your father has had an intermittent relationship.
You struggled academically and behaviourally at school. You left in year 11. Thereafter you worked in a fast food store for about 12 months before obtaining a position in a recycling company. That employment ceased some 20 months later when the business closed. You then obtained work in warehouses for a period.
You have had one serious intimate relationship, which commenced when you were 15 years of age and your partner 16 years of age. You are father to three young children. That relationship is over. You told Warren Simmons, a psychologist who prepared a report on your behalf, that the relationship became difficult following the birth of your second child. There is significant animosity between you and your former partner. You have limited access to your children. That situation arises in part because of alleged violence by you towards your ex-partner and the involvement of the Department of Health and Human Services in ensuring appropriate behaviour around the children.
You commenced taking cannabis at the age of 18 years and, from that time, consumed up to a gram per day until your remand on these charges. You have also used other drugs including MDMA, Xanax, cocaine, amphetamines, codeine and methylamphetamine. You told Mr Simmons that MDMA helped ease your stress after you lost custody of your children and was also used by your peers. Given your father’s alcoholism, you were wary of consuming alcohol but began to do so when 18 years of age. You reported that it gave you a good feeling and you would consume up to a slab of beer daily. This behaviour continued until your remand.
Mr Simmons states that at that time of your remand, you would have met the criteria for Substance Use Disorder for alcohol and MDMA. However, since your release from custody, you report that you have only consumed an occasional, social drink and deny any other substance use. Progress reports of The Youth Junction Inc., which runs a program called ‘Reconnect,’ were tendered on your behalf. The reports confirm that since your release from custody you completed a drug and alcohol program and continued to attend fortnightly appointments with the counsellor some months after the completion of that program. Further you are enrolled in the ‘Prevent Alcohol and Risk Related Trauma in Youth’ program.
You have a criminal history, beginning when you were a minor, which records crimes of violence. These include armed robbery and recklessly causing injury. You have also been proven to have committed offences of intentionally damage property and contravention of a family violence intervention order.
You have subsequent convictions of affray and fail to comply with a COVID-19 direction arising from an incident that occurred weeks prior to the instant offending. That incident involved a fight between dozens of members of BH and VB during which a member of VB was stabbed and suffered nine shallow stab wounds. You received a sentence of 65 days’ imprisonment and a $1,000 fine.
Mr Simmons opines that your prior offending – other than that involving your ex-partner – was due to your family’s impecunious state and is absent a significant pattern of aggressive or violent behaviour. He states that you have no significant antisocial personality traits. He suggests that you would benefit from a referral to a psychologist for assistance in dealing with Post-Traumatic Stress Disorder.
The Youth Junction Inc. progress reports note that your engagement with their service has been of a high standard and you have displayed commitment to making positive changes in your life. You have been referred to a number of programs concerning your mental and physical health, anger management and behavioural change and employment and educational skills.
Analysis
Your offending was serious. In a public place you participated in a pack attack on a defenceless and unarmed teenager who, after trying to evade you, put up no resistance and lay in the foetal position on the ground. You were armed with a baseball bat. Two others were armed with knives, another with an extendable baton and yet another with a glass bottle. The attack was vicious. And you, the only member of the pack aged more than 18 years, were a leader in the enterprise.
Bravery is not demonstrated nor is respect found in pack behaviour. Being a member of a gang masks cowardice. True courage is shown by stepping away from a group bent on unlawful, violent behaviour and indeed, by opposing it.
Your behaviour must be denounced by this Court and the sentence I impose must give significant weight to general deterrence.[2] There can be no doubt that anyone who acts as part of a group, particularly an ongoing gang, with the common intention of inflicting violence and who causes injury will be met with substantial punishment. I reiterate that the injury for which you are sentenced does not include the death of Solomone nor the infliction of the fatal stab wound.
[2]Counsel for the accused conceded that the role of general deterrence in the sentence made any issue of parity with the co-accused, who are all minors, redundant.
Given the nature of your prior criminal history, the gang violence demonstrated in the incident leading to your subsequent conviction and your leading role in the instant offence, both specific deterrence and protection of the community are also of moment in the sentencing exercise. A sentence of immediate imprisonment is warranted.
Sentencing considerations
I accept that your plea of guilty was made early and involves an acceptance by you of your behaviour and a willingness to facilitate the course of justice. It has utilitarian benefit.
Although your plea involves a degree of remorse, I note that you do not accept full responsibility for your actions. This, together with other matters, lead me to the view that your prospects for rehabilitation are moderate.
In your favour are the steps you have taken towards rehabilitation since your release on bail. You have participated, enthusiastically, in a wide range of programs and counselling. You have not reoffended in any manner. While you had some issues with the use of alcohol and illicit substances at the time of the offence, these were not longstanding. And you have not relapsed into illicit drug use. The major issue in your future prospects will be your ongoing ability to refrain from association with gang culture and maintain the fledgling stability you have achieved to date.
In this respect I accept the submission made on your behalf that your membership of BH can in part be explained by your desire for belonging and identity, which was absent in your childhood. You are no longer associating with members of BH. It is to be hoped that the greater insight you have gained in the programs you have undertaken under the auspices of The Youth Junction Inc. will help you sustain a pro-social lifestyle.
You are still a young man and I take your relative youth and background into account, particularly when assessing the weight to be given to general deterrence.
You have many life choices to make. Most important amongst those choices concern your children. You wish to have a relationship with them. That must be a relationship in which they do not witness you being violent.
You spent some 13 months on remand prior to your release on bail. You did so at a time when conditions in custody were negatively impacted by the restrictions made necessary by the COVID-19 pandemic. The pandemic has also meant that the resolution of this matter has been, to some extent, affected by delay.
A significant factor in the sentencing exercise is the prospect of your deportation in the event that I impose a sentence of imprisonment of 12 months or more or a sentence of imprisonment which, in combination with the 65 days imprisonment imposed for the subsequent conviction for affray, totals 12 months or more.[3]
[3]Migration Act 1958, s 501(2), (6), (7)(c) and 7(d).
In my view, the extra-curial punishment involved in removing your opportunity to settle permanently in Australia and also in all but eliminating the potential for you to establish healthy and meaningful relationships with your children would be disproportionate to your offending.
I have had regard to current sentencing practices.[4]
[4]I have been referred to a limited number of County Court and Children’s Court sentences for the offence of violent disorder. They are of very little assistance. Each case turns on its own facts.
I have applied the principle of parsimony.
Sentence
Mr Tafa, would you please stand.
Balancing, as best as I am able, the competing considerations laid down in the Sentencing Act 1991 (‘Act’) and having regard to the matters I have just discussed, for the offence of violent disorder, I sentence you to imprisonment for nine months.
I declare that you have already served that period of imprisonment by way of pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of fifteen months.
I make the disposal order in the terms sought by the Crown.
5
0
1