R v Uluivuya
[2025] VSC 29
•7 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0098
| Between: | |
| THE KING | |
| -and- | |
| EDWARD ULUIVUYA | Accused |
---
JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 December 2024 |
DATE OF SENTENCE: | 7 February 2025 |
CASE MAY BE CITED AS: | R v Uluivuya |
MEDIUM NEUTRAL CITATION: | [2025] VSC 29 |
---
CRIMINAL LAW — Sentence — Intentionally causing serious injury in circumstances of gross violence — Accused, without consent, falsely implicated complainant in driving infringements in order to avoid demerit points — Upon learning this, complainant made threats to accused — Frightened and angered by threats, accused followed complainant to his front door, leapt from shadows, and struck him repeatedly to head with blunt side of small axe, causing serious injury — Accused continued to strike and injure complainant after incapacitating him — Accused fled without offering any assistance — Complainant suffered multiple head injuries, requiring surgery — Complainant now largely recovered physically, but still suffers psychological sequalae — Serious example of offence — Prosecution case unlikely to succeed on identity absent accused’s admissions to police — Plea of guilty following sentence indication — Remorse — No criminal history at 55 — Strong work history — Excellent prospects of rehabilitation — Accused’s PTSD makes imprisonment more burdensome — Importance of general deterrence, denunciation, just punishment and rehabilitation as sentencing purposes — Specific deterrence and protection of only minor moment — Parsimony — Sentence of six years’ imprisonment with non‑parole period of four years — But for plea of guilty, sentence of nine years’ imprisonment with non‑parole period of six years — Criminal Procedure Act 2009 (Vic), ss 198B & 207‑209; Crimes Act 1958 (Vic), ss 15A & 16; Sentencing Act 1991 (Vic), ss 5, 6AAA, 10, 10A & 18.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Lewis SC | Abbey Hogan, Solicitor for Public Prosecutions |
| For the accused | Mr M McGrath with Mr J Moutsias | Giorgianni & Liang Lawyers |
HIS HONOUR:
Overview
Edward Uluivuya, now aged 55, faces a charge on indictment alleging that, at Rowville on 25 June 2023, he intentionally caused serious injury to Ropate Raqauqau, then aged 60, in circumstances of gross violence.[1]
[1]Contrary to s 15A(1) of the Crimes Act 1958 (Vic).
On 15 October 2024, I heard an application for a sentence indication on that charge on the agreed basis that the circumstances of gross violence were constituted by Mr Uluivuya’s continuing to cause injury to Mr Raqauqau after he was incapacitated.[2] At the conclusion of the hearing, I indicated that, if Mr Uluivuya pleaded guilty to that charge at the first practicable opportunity, I would impose a sentence not exceeding six years’ imprisonment with a non‑parole period of four years.[3] I gave brief ex tempore reasons for that decision. Later the same day, Mr Uluivuya took up the sentencing indication and pleaded guilty.
[2]Pursuant to s 15A(2)(e) of the Crimes Act 1958 (Vic).
[3]As to the power to give a sentence indication, and its effect once given, see ss 207–209 of the Criminal Procedure Act 2009 (Vic).
At the subsequent plea hearing on 12 December 2024, I received a summary of the prosecution case again, as well victim impact statements, and heard a full plea in mitigation. At the conclusion of the hearing, I indicated that I would be imposing the same sentence as I had indicated previously. However, I deferred formally passing sentence until today to avoid disruption of Mr Uluivuya’s location within the prison system, and to allow time for detailed written reasons to be given. These are those reasons.
Summary of circumstances of offending
Same summary as on sentence indication
The circumstances of the offending alleged on the plea are the same as those alleged in the summary placed before the Court on the sentence indication. While Mr Lewis SC, who appeared for the Director of Public Prosecutions, handed up, but did not read out, that summary at the sentence indication, he read it to the Court at the plea hearing. Mr McGrath, who appeared with Mr Moutsias for Mr Uluivuya at both hearings, accepted the contents of the summary, and added some other matters, the substance of which follows.
Mr Raqauqau and Mr Uluivuya
At the time of the offending, Mr Raqauqau was, as I have said, aged 60, and Mr Uluivuya was aged 53. Both were born and raised in the same region in Fiji, but they did not know each other until they met in Australia in 2009.
Mr Raqauqau moved to Australia in 1986. He is married, with two young children, who, at the time of the offence, were aged four and 11.
Mr Uluivuya came to Australia in 2009, taking citizenship in March 2023. He has six children ranging in age from 17 to 36. His partner lives in Queensland.
Background to offence
Turning to the background to the offence, some years ago, Mr Uluivuya was driving for Uber. He was close to his demerit points limit, and any further significant accumulation of points would cause him to lose his licence. After incurring a further traffic infringement notice, he contacted Mr Raqauqau and asked if he could nominate him as the driver. Mr Raqauqau consented to this. In return, Mr Uluivuya was to pay him $200.
In 2023, Mr Raqauqau incurred a traffic camera fine in his own vehicle. As a result, he became aware of two other outstanding traffic fines against his name. Those infringements occurred on 5 October and 2 November 2016. The vehicle and registration details relating to those fines did not relate to him. Rather, the vehicle involved was registered to Mr Uluivuya. Mr Raqauqau borrowed $700 from his extended family and paid the outstanding fines.
The relationship between the two men remained amicable for a time afterwards, but things soured considerably in recent times. When he was interviewed, Mr Uluivuya told police that Mr Raqauqau had made threats, including through others, in relation to the debt, and had demanded that he disclose his licence details.
On 18 June 2023, Mr Raqauqau posted a message on social media (Facebook), written in Fijian. Mr Raqauqau intended that the message would shame Mr Uluivuya within the Australian Fijian community. Translated into English, the Facebook message read: “Anybody from Rewange in Fiji who lives here in Melbourne, if you know the whereabouts or the location of where Eddie … lives, let me know”.
Mr Uluivuya later told police that, when he read this Facebook post, he felt both threatened and embarrassed. He said that, by this point in time, Mr Raqauqau and his acquaintances were threatening him.
Lead-up events on night of offence
On Saturday 24 June 2023, Mr Raqauqau turned 60. At about 6:00 p.m., his wife drove him to Clayton, where he met up with two Fijian friends to celebrate his birthday. They bought alcohol and take‑away Indian food, and celebrated at the Clayton address.
Later in the night, Mr Raqauqau received a call from another friend inviting him to a Fijian community event being held in Keysborough. The three men, who were intoxicated, caught a taxi from Clayton to the event in Keysborough.
While at the event, Mr Raqauqau had a phone conversation with Mr Uluivuya. As a result of that conversation, Mr Raqauqau became aware that Mr Uluivuya was outside the premises in his vehicle. They discussed the traffic infringements and the outstanding debt. The conversation was brief but heated.
Mr Raqauqau stayed at the function until it ended. After the call, he laughed about his disagreement with Mr Uluivuya. For his part, as he later admitted, Mr Uluivuya was angry and upset and wanted to hurt Mr Raqauqau. He moved his car to a location from where he could watch Mr Raqauqau leave.
Later, Mr Raqauqau and his friends caught a taxi from the event. Mr Uluivuya recognised the other two men and knew where they lived.
The taxi dropped the first of Mr Raqauqau’s friends at an address in Clayton. In part, Mr Uluivuya followed the taxi to this address. He then decided to travel to Dandenong and wait for the taxi at the next address.
While waiting near the second address, Mr Uluivuya saw the taxi arrive and watched as the taxi driver and Mr Raqauqau carried the second passenger into the house. Mr Raqauqau came back to the taxi and sat in the front seat. The taxi then departed for Mr Raqauqau’s home in Rowville.
Mr Uluivuya then followed the taxi from Dandenong to Rowville. When the taxi stopped at Mr Raqauqau’s house, Mr Uluivuya turned off his headlights and drove past the address. He parked his car in an adjoining street.
By this time, it was the early hours of the Sunday morning (25 June 2023).
Mr Uluivuya retrieved a small axe — the type used for chopping kindling — that he had under his driver’s seat. He walked to a neighbouring house and watched Mr Raqauqau, who was still in the taxi. He listened as Mr Raqauqau argued with the taxi driver about the fare. He stayed where he was until Mr Raqauqau got out of the taxi and walked to the front door of his house.
The attack
Mr Uluivuya then walked across the street and attacked Mr Raqauqau at his front door. He struck Mr Raqauqau multiple times to the head and body with the blunt edge of the axe. Mr Raqauqau grabbed him as he fell to the ground. Mr Uluivuya continued to strike Mr Raqauqau until he was unresponsive. He delivered a minimum of four blows to Mr Raqauqau’s head after he was lying face down and unconscious. When Mr Uluivuya left the scene, Mr Raqauqau was bleeding and lying unresponsive outside the front door of his home.
CCTV footage from Mr Raqauqau’s home captured the incident, in part.
Mr Raqauqau’s injuries
As a result of the attack, Mr Raqauqau suffered blunt force trauma to the head, four open wounds to the scalp at the back of the head, a broken molar, multiple comminuted and depressed skull fractures, brain injury, and a fractured nose.
More formally, upon examination by CT scan at the hospital, Mr Raqauqau was found to have:
a) bilateral depressed calvarial fractures with associated underlying subarachnoid haemorrhage, parenchymal contusions, pneumocephalus, and thin right parietal subdural haemorrhage;
b) bitemporal subarachnoid haemorrhage and right temporal pneumocephalus;
c) suspected right transverse sinus thrombosis with overlying calvarial fracture;
d) no acute traumatic injury of the major head and neck arteries;
e) bilateral nasal bone fractures; and
f) no acute traumatic injury of the chest, abdomen, pelvis or spine.
Mr Raqauqau was admitted to intensive care, where he underwent a blood transfusion, inotropes for low blood pressure, and intravenous antibiotics. He had surgery later that day, which involved a bilateral craniectomy, elevation of depressed skull fracture, titanium mesh cranioplasty on the right side, washing out of the wound, and closure.
He was released from hospital on 30 June 2023, and subsequently received post‑hospital medical care and rehabilitation.
After the attack
Returning to the night of the offence, straight after the attack, Mr Uluivuya left the scene in his car. He drove back to his home in Werribee, stopping for a time at the Werribee River, where he threw his axe and a car mat into the water. He disposed of his boots and clothing in a dumpster in Werribee.
Mr Uluivuya rang his partner in Queensland and told her what he had done. He collected her from Tullamarine Airport later that morning. That afternoon, the couple left Victoria and travelled to Queensland in Mr Uluivuya’s car, stopping over in New South Wales on the way.
Initially, Mr Uluivuya shared a flat in Slacks Creek, Queensland, with his partner and others. In September 2023, the couple rented a place at Woodbridge, also in Queensland.
Mr Uluivuya secured a new Queensland driver’s licence, and began working as a forklift driver. He also obtained a new phone number in the name of his partner. He took precautionary steps to avoid being apprehended.
Arrest and extradition
At about 2:00 p.m. on 21 September 2023, Mr Uluivuya was arrested by Queensland police in conjunction with Knox CIU detectives. At the time, he was at home with his partner at their rental property in Woodbridge. His car was searched, and items were seized under warrant.
He was subsequently extradited back to Victoria.
Police interview
When interviewed by police in Victoria on 24 September 2023, Mr Uluivuya said the following, among other things:
a) He admitted the attack on Mr Raqauqau. He said that he wanted to hurt him “really bad” because he was threatening his life and that of his family, but he did not want to kill him. When asked whether he wanted to hospitalise him, he said, “Yes, probably hospitalise him, yes.” While he said he didn’t want to cause an injury that was “that serious, just an injury”, he also said he intended to hit Mr Raqauqau on the head.
b) He said that, after the assault, he was told that Mr Raqauqau was in hospital in a serious condition and could die. It was only after hearing this that Mr Uluivuya thought he could have killed him on that day, but he told police this was not his intention.
c) He agreed that it was a frenzied attack. He said that he believed he hit Mr Raqauqau a maximum of five times, but conceded that he may have inflicted more blows than that. He said that he did not use full force. He indicated that he used the blunt end of the axe because, if he had used the other end, it would have killed Mr Raqauqau.
d) He told police that he threw the axe and the car mat in the Werribee River. He knew the items had Mr Raqauqau’s blood on them. He admitted to discarding his boots, beanie and clothing in a skip bin as well in order to dispose of evidence linking him to the attack.
e) Mr Uluivuya said that he kept the axe in his car for protection. He said he used it because he knew it was there and he needed something to overpower Mr Raqauqau.
f) Mr Uluivuya said that a statement made by his partner — that she had no knowledge of the attack — was false. He had told her.
Police searched the Werribee River, but they were unable to find the discarded items. They were also unable to identify the skip bin in which Mr Uluivuya disposed of his boots and clothing.
During the interview, Mr Uluivuya provided a sample of his DNA voluntarily.
He has remained in custody since his arrest in Queensland.
Victim impact statements
I turn now to the two victim impact statements read to the Court.
Mr Raqauqau said that the crime has affected his life significantly. He feels he has lost motivation for life, and spends his time lying in bed or watching television instead of working. He has trouble sleeping, has nightmares, and finds that he is short‑tempered with his children. He is hypervigilant when he goes out for a dinner or a coffee with his wife, and does not feel safe. As a result of his injuries, he has not been able to return to work, but is hopeful of doing so in the future, especially as he was the main income earner in his family. He has been able to draw on an insurance policy over the last 18 months, but it pays less than his usual income and the policy will run out in 20 months.
Kylie Nash is Mr Raqauqau’s wife. She described the emotional impact on her as “huge”. She was present in the aftermath of the attack, and cannot unsee what happened to her husband. She was upset, angry and frustrated with the assault, and was distressed that Mr Uluivuya was meant to be friend of her partner and part of the same community.
I have taken account of the contents of these statements in considering sentence.
Nature and gravity of offence
I turn now to the nature and gravity of the offence, both generally and in this case.
While the offence of intentionally causing serious injury in circumstances of gross violence is an aggravated form of the offence of intentionally causing serious injury simpliciter, the two offences carry the same maximum penalty of 20 years’ imprisonment.[4]
[4]See Crimes Act 1958 (Vic), ss 15A(1) and 16(1).
However, unlike the case of the simpliciter offence, in sentencing for the aggravated form of the offence, a court must impose a term of imprisonment and fix a non‑parole period of not less than four years, unless the court finds under s 10A of the Sentencing Act 1991 (Vic) that a special reason exists.[5] Mr McGrath did not suggest that a special reason exists in this case.
[5]See Sentencing Act 1991 (Vic), s 10(1).
As I understood him, Mr Lewis emphasised at least the following factors in assessing the gravity of the instant offence. First, Mr Uluivuya was enraged by the contact he had with Mr Raqauqau on the evening of 24 June 2023, which occurred in the context of the prior friction between the two. Second, as a result, he followed Mr Raqauqau home with violence on his mind. Third, Mr Uluivuya then attacked Mr Raqauqau at the door of his home using a weapon which he must have known had the capacity to inflict very significant physical damage. Fourth, he inflicted multiple blows to his victim’s head. Fifth, the attack was carried out with such ferocity as to bespeak an intention to inflict serious injury at the very least. Sixth, he continued to cause injury to Mr Raqauqau after he was incapacitated. Seventh, Mr Raqauqau suffered very serious head injuries. Eighth, the victim impact statements show the effect of the crime on Mr Raqauqau and his family. Ninth, Mr Uluivuya fled the scene without giving any assistance to Mr Raqauqau, although he believed (correctly) that someone was coming to the front door. Tenth, Mr Uluivuya fled the jurisdiction the same day.
I should add that Mr Uluivuya also admitted that he tried to disguise himself with the beanie, that he believed Mr Raqauqau was quite intoxicated, that Mr Raqauqau tried to defend himself but had no chance of successfully doing so, and that he discarded evidence linking him to the attack.
I understood Mr McGrath to accept the foregoing matters.
However, he submitted that I should not sentence on the basis that Mr Raqauqau will not be able to return to work. I accept that submission. On the material before me, I am not satisfied that he is permanently unable to work. On the contrary, it seems likely that he will be able to return to work sooner or later.
Mr McGrath also emphasised that, as Mr Uluivuya explained in his police interview, the offence was committed against a background of fear and anger resulting from the threats he received. In January 2023, Mr Raqauqau’s associate threatened to “smash” Mr Uluivuya at his workplace.[6] Next, there was what Mr Uluivuya took as the threat in the Facebook message.[7] Then, a week before the attack, Mr Raqauqau threatened Mr Uluivuya during a heated video call.[8] And, on the night of the attack, while at a function in Keysborough, Mr Raqauqau made further threats to Mr Uluivuya when they spoke on a phone call.[9] Mr McGrath explained that it was the latter threat that finally triggered Mr Uluivuya’s anger on the night and his decision to follow Mr Raqauqau home and ultimately offend as he did.
[6]Interview at Q236–248.
[7]Interview at Q221–236, 254–259 & 272–288.
[8]Interview at Q289–315.
[9]Interview at Q317–348.
While I accept that Mr Uluivuya was provoked into acting as he did — and it would be a more serious offence absent that provocation — it was still a grave instance of the offence for the reasons urged by Mr Lewis. The CCTV recording shows a ferocious and chilling attack, which was worsened by Mr Uluivuya’s continuing to strike his victim (at least four times) after he was incapacitated. Far lesser attacks have resulted in death. Fortunately, it appears that, as serious as the injuries were at the time, Mr Raqauqau has escaped grave permanent physical injury and that he will be able to return to work eventually, albeit at least some of the adverse psychological effects are likely to be lifelong. But, as I say, overall, this was a very serious offence.
Mr Uluivuya’s personal history
Childhood
Before turning to the factors in mitigation urged by Mr McGrath, I shall say something about Mr Uluivuya’s personal history, commencing with his childhood.
Mr Uluivuya’s early life was marked by severe corporal punishment. From the age of five until 14, he experienced harsh discipline from his father, including beatings with belts and other objects. His father was a big man, with an intimidating presence, and was a heavy drinker.
Mr Uluivuya cut ties with his parents at the age of 25 because of ongoing mental abuse. Both of his parents have since passed away.
Education
In 1987, at 17, Mr Uluivuya was sent to St Paul’s College in Auckland, where he completed secondary school.
Subsequently, he attended TAFE to study accounting.
Employment
Upon returning to Fiji after completing his studies in New Zealand, Mr Uluivuya found employment with the Westpac Bank in Suva. He started work in the enquiries team, and moved to working as a teller, and then to support services. He maintained employment with Westpac for 18 years, until he moved to Australia in 2009.
Once in Australia, he worked in different jobs for short periods of time as he did not have a permanent address. He worked as a landscaper for Jim’s Mowing, and on tomato farms in Queensland and the Northern Territory, before coming back to Melbourne.
He then started working in warehouse jobs, particularly as a forklift driver. From 2016 until the charged incident, Mr Uluivuya worked as a forklift driver for MedLog in Footscray. He would work five or six days a week. He supplemented his income working as an Uber driver in his spare time.
He hopes to return to forklift driving when released from prison.
Relationships and children
Mr Uluivuya has had a number of relationships over the years, both in Fiji and Australia. These relationships have produced six children, who, as I indicated earlier, range in age from 17 to 36 years.
Mr Uluivuya has had a longstanding relationship with Eva, whom he married in 1997 and was a primary reason for his move to Australia. He has one son with Eva, named William, who lives in Queensland. In 2017, his relationship with Eva ended.
In 2021, one of Mr Uluivuya’s sons was killed when he was hit by a truck crossing the road after school. The boy, who was only 14, died in hospital a few hours after the incident. This tragedy was a major factor in pushing Mr Uluivuya to heavy drinking.
In September 2022, Mr Uluivuya met his current partner, Lani, who lives in Brisbane.
Work, education and activities while in custody
Mr Uluivuya has attempted to make the most of his time in custody. He has been on remand since September 2023, and has spent the majority of that time working and completing various courses.
He put his name down for work on the first day of his entry to the prison, and began in the kitchen. He subsequently completed a “Certificate 2 in Kitchen Operations”, and continued to work in the kitchen for eight months.
Next, he began working in the metal shop, which is his current role. Mostly, he performs metal inert gas (“MIG”) welding. He works six hours a day for four days a week. While doing this work, he has also been completing a “Certificate 2 in Engineering”.
As to other courses, Mr Uluivuya has completed a course entitled “Alcohol and Me”, and five units of a cleaning course, and he is doing a course in information technology.
Mr Uluivuya also participates in sports in custody. He enjoys playing soccer, volleyball and basketball, and he engages with Melbourne City FC, who visit the prison to run programmes.
While in custody, he has had the support of his partner Lani, his son William, and his aunt. He has regular phone calls with both Lani and William.
Mitigating factors
Full admissions to police
I turn now to the factors urged in mitigation, commencing with Mr Uluivuya’s admissions to police.
Those admissions were extensive. They went to proof of identity, motive, actions, intention, and his disposal of items.
Absent his admissions that he was the perpetrator of the assault, it is difficult to see how any charge could have been established, as there appears to have been no other compelling evidence of identity. Mr Raqauqau did not recognise his attacker and the CCTV footage did not appear to be of sufficient quality to identify Mr Uluivuya’s face.
Plea of guilty
Mr Uluivuya offered to plead guilty to the simpliciter offence early in the process, and then pleaded guilty to the aggravated form of the offence the same day as the sentence indication was given. There was no contested committal hearing or any examination conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic). Thus, no witnesses have been required to give evidence, which is a significant consideration.
In those circumstances, and when considered together with his full admissions, Mr Uluivuya’s plea of guilty is of considerable weight in mitigation.
Remorse
I am also satisfied that it is apparent from the extensive admissions made in his interview, and it is implicit in his plea of guilty, that Mr Uluivuya is genuinely sorry for his offending and the harm he has caused.
No criminal history at 55
It is also of significance that Mr Uluivuya has reached the age of 55 without any criminal history whatsoever.
As Starke J remarked in R v Okutgen,[10] a person of middle age, when first convicted, can call in aid his character and is entitled to ask the Court to rely very strongly indeed on the fact that he is of exemplary character and has been at all times up until the moment of conviction.
[10]R v Okutgen (1982) 8 A Crim R 262 at 265–266 (per Starke J; Crockett J and O’Bryan J agreeing).
Excellent prospects of rehabilitation
Next, I am satisfied that Mr Uluivuya has excellent prospects of rehabilitation.
Those prospects are demonstrated by, among other things, his full admissions to and co‑operation with police, his plea of guilty, his remorse, his lack of prior convictions, his strong work history, and his efforts to better himself in custody by doing all courses available.
In addition, Mr McGrath is instructed, and I accept, that Mr Uluivuya has given up drinking since the incident. He has no problems with drugs, and as a result will not be presented with any of the usual barriers to re‑entry into society.
Further, psychologist Gina Cidoni, whose report was admitted on the plea without objection, opines that, according to the Violence Risk Appraisal Guide she administered to Mr Uluivuya, his score placed him in a risk category where only about 12 percent of offenders would reoffend within an average of seven years after release.[11] Ms Cidoni describes this as a “low” risk, which, she explained, primarily reflects Mr Uluivuya’s lack of criminal history and the fact that the offending does not indicate a pattern of repeated violent behaviour.[12] Fairly and appropriately, in my view, Mr Lewis conceded that, on the evidence, Mr Uluivuya presents only a low risk of reoffending.
[11]Report of Ms Cidoni (9 October 2024) at [51]–[56].
[12]Report of Ms Cidoni (9 October 2024) at [66].
I am also satisfied that Mr Uluivuya’s prospects of rehabilitation would be even better if, in prison, he were to receive the treatments recommended by Ms Cidoni in her report, to which I turn now in greater detail.
Added hardship of imprisonment given PTSD
In her report, Ms Cidoni said the following, among other things, about Mr Uluivuya’s post‑traumatic stress disorder (“PTSD”) and how that has affected, and is likely to continue to affect, him in prison:[13]
[61] [Mr Uluivuya’s] background reveals a history of severe childhood abuse, both physical and emotional, which he described as highly distressing and a source of ongoing emotional turmoil. Consistent with PTSD, he experiences hypervigilance, intrusive thoughts about the abuse, emotional numbness, and heightened reactivity, especially in conflict situations. These symptoms have been further triggered by the death of his son and his incarceration. His avoidance of discussing past traumas and the persistence of emotional dysregulation in response to triggers reflect hallmark symptoms of PTSD, including intrusive memories, emotional reactivity, and avoidance.
…
[67] Mr [Uluivuya] is finding his prison experience particularly burdensome due to the impact of his PTSD and borderline personality traits, combined with specific stressors in the prison environment. His PTSD, stemming from childhood trauma, leads to heightened reactivity, emotional numbness, and difficulties managing stress, which are exacerbated in the isolating and confrontational prison setting. His early days in custody triggered feelings of isolation and suicidal thoughts. His borderline traits, including impulsivity and emotional instability, further complicate his prison experience, as these traits make him prone to intense emotional responses and difficulties regulating anger. This has led to altercations, especially when he intervenes in disputes or feels compelled to defend others, causing additional stress and disciplinary consequences. His inability to control these responses results in further management sanctions, reinforcing a cycle of distress and conflict within the prison environment.
[68] The lack of treatment interventions in prison, which he needs to manage his high symptom presentation, presents a barrier to recovery. He would benefit from anger management programs, alcohol education, and trauma‑informed psychotherapy to help reduce his emotional reactivity and improve his ability to regulate his anger. Without these interventions, his PTSD and borderline personality traits remain largely untreated, exacerbating his distress and potentially contributing to offending risk.
[69] Effective treatment is essential to help him develop healthier coping mechanisms, control his impulsivity, and break the cycle of emotional dysregulation and disciplinary consequences.
[13]Report of Ms Cidoni (9 October 2024) at [61] & [67]–[69].
In view of Ms Cidoni’s opinions, which I accept, I am satisfied that another mitigating factor to be brought into the sentencing calculus is that Mr Uluivuya’s PTSD and the symptoms he experiences mean that imprisonment has weighed, and will continue to weigh, more heavily on him than it would have done, and would, on a person in normal health.[14]
[14]See R v Verdins (2007) 16 VR 269 at 276[32](5) (per Maxwell P, Buchanan and Vincent JJA).
However, on the evidence, I am not satisfied that there is a serious risk that imprisonment has had, or will continue to have, a significant adverse effect on Mr Uluivuya’s mental health[15] — in the sense that there is a serious risk that his PTSD and its symptoms have worsened, or will worsen, significantly because of his imprisonment. Had this been Ms Cidoni’s opinion, I would have expected her to have said so in her report. That she did not say so, and that I do not think any such opinion is to be inferred from the matters raised in her report, causes me to reach this conclusion.
Sentencing purposes
[15]See R v Verdins (2007) 16 VR 269 at 276[32](6).
Section 5(1) of the Sentencing Act
I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.
General deterrence, denunciation and just punishment
In my opinion, general deterrence, denunciation and just punishment are important sentencing purposes in this case. Mr Uluivuya’s crime was very serious, both in the manner of its perpetration and in its result for Mr Raqauqau (and, indirectly, for his family too). The sentence must reflect the Court’s denunciation of such a crime; it must serve as a deterrent to others; and it must involve punishment that is just in all the circumstances.
Specific deterrence and protection of the community
It is also necessary that the sentence deter Mr Uluivuya personally and protect the community from repeat behaviour by him. That said, given the absence of any criminal history at the age of 55, his low risk of reoffending, his plea of guilty and remorse, his strong prospects of rehabilitation, and the length of the sentence compelled by other considerations, I think that the weight to be given to the purposes of specific deterrence and community protection is of only minor moment in the sentencing calculus.
Rehabilitation
In contrast, rehabilitation remains an important purpose in fixing sentence. There are at least two reasons why that is so.
First, notwithstanding the gravity of his crime, the fact that Mr Uluivuya has such strong prospects of rehabilitation makes rehabilitation a sentencing purpose that must be afforded significant weight.
Second, it is necessary to recognise the interplay between rehabilitation and protection of the community. Mr Uluivuya will be returning to the community at some point. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximised, and that he is not crushed by an unduly long sentence and non‑parole period, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be, and his chances of successful reintegration into society are as strong as they can be.
Parsimony
Next, I note that the sentence I shall impose is intended to conform with the principle of parsimony, as it must. This principle, which is reflected in s 5(3) of the Sentencing Act in a modified form, provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Current sentencing practices
Introduction
I turn now to current sentencing practices for intentionally causing serious injury in circumstances of gross violence, in so far as I can determine them. These practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.
Statistics
Sentencing statistics for the offence during the five‑year period from July 2018 to June 2023 reveal that the shortest prison sentence was ten months, the longest was 14 years, the median was eight years, and most sentences (about 79 percent) ranged between four and nine years.[16]
[16]Sentencing Advisory Council, SACStat, “Intentionally causing serious injury in circumstances of gross violence: Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023”.
I recognise, however, that such statistics are of limited utility. This is mainly because they do not distinguish cases according to their most important sentencing considerations, such as the gravity of the offence or whether there was a plea of guilty or not guilty, remorse, or a relevant criminal history, and so on.
Case comparisons
Sometimes, case comparisons are a useful way of assessing current sentencing practices. With this in mind, Mr Lewis helpfully provided a table of selected sentences imposed for this offence.[17] At both the sentence indication and on the plea, Mr McGrath took me through the various features of the cases in the table in some detail, and pointed out how they were different or similar to those in the present case. I shall not recount those details in these reasons.
[17]The table comprises the following cases (NB: “NG” indicates a plea of not guilty, and “G” a plea of guilty; “X/Y” indicates the head sentence and non‑parole period in years; and where it is part of a total effective sentence for multiple offences, an individual sentence is indicated in years): DPP v Smith [2024] VCC 1331 (NG; 8.25); DPP v Kuru [2024] VCC 349 (NG; 8/5.33); DPP v Thiep & Kuol [2024] VCC 238 (G; 6.5); DPP v Nguyen [2024] VCC 105 (G; 8.33/5.5); DPP v Weatherburn [2022] VCC 1440 (G; 9/6.5); R v Scriven [2023] VCS 652 (G; 9 & 9); DPP v Thomas [2019] VSC 608 (G; 8 & 8); DPP v Till & Hi [2016] VCC 1976 (G; 7 & 6; NB: reckless, not intentional); DPP v Van Kempen [2021] VCC 452 (G; 8.83/5.83); DPP v Castilo [2022] VCC 2180 (G; 5); DPP v Delmare [2022] VCC 1950 (G; 7.5/4.83).
Suffice it to say that, while none of the cases in the table struck me as being quite like Mr Uluivuya’s case, I am satisfied that, when the various competing and complimentary factors in those cases are considered, the sentence I have already indicated is consistent with the sentences revealed by that table.
Conclusions
That none of individual cases in the table is quite like the present case is neither surprising nor uncommon. Indeed, in the area of sentencing, it is almost always difficult usefully to compare cases. And, in any event, sentences are not precedents to be applied or distinguished.
In the end, as is the situation even where there are helpful statistics or more useful case comparisons, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of intentionally causing serious injury in circumstances of gross violence.
Submissions
At sentence indication hearing
At the sentence indication hearing, Mr McGrath’s principal submission was that any non‑parole period should be confined to the mandatory minimum period of four years, and that the head sentence should be in the order of five to five‑and‑a‑half years’ imprisonment.
Without wishing to breach the rule in Barbaro v The Queen,[18] at the sentence indication hearing, Mr Lewis submitted that, when regard is had to the gravity of the offence and the various sentences imposed in other cases, Mr McGrath’s suggested sentence would be too low, notwithstanding the weighty matters in mitigation.
[18]Barbaro v The Queen (2014) 253 CLR 58.
At plea in mitigation
At the plea hearing, Mr McGrath submitted that there was room to reduce the head sentence to below the six years’ imprisonment I had indicated previously.
Mr Lewis submitted that there was no room for such a reduction, as the sentence indicated was already merciful.
Conclusions
As I said at the plea, I consider that the appropriate head sentence was that which I had indicated at the sentence indication hearing — i.e., six years’ imprisonment.
That said, unconstrained by the legislative dictate that the minimum non‑parole period for this offence is four years,[19] I would have imposed a shorter non‑parole period than that which I indicated. This is because, in my view, factors such as Mr Uluivuya’s extensive admissions, his plea of guilty, his remorse, his previous good character, his strong work history, his low risk of re‑offending and his excellent prospects of rehabilitation, when taken together, would have compelled such a disposition. But, since the law compels me to fix a non‑parole period of at least four years, that is what I must and will do.
[19]Sentencing Act 1991 (Vic), s 10(1). As for the potential difficulties that minimum non‑parole periods may introduce into sentencing, see, e.g., Mammoliti v The Queen (2020) 281 A Crim R 511 at 516[25]–521[41] (per McLeish and Emerton JJA) & 524[66]–525[73] (per Croucher AJA).
Sentence
I turn now to impose sentence.
Mr Uluivuya, would you stand, please?
Balancing all relevant matters as best I can, for the offence of causing serious injury to Ropate Raqauqau in circumstances of gross violence, Edward Uluivuya is convicted and sentenced to six years’ imprisonment with a non‑parole period of four years.
Pursuant to s 18 of the Sentencing Act, I declare that, not including today, 505 days are reckoned as already served under this sentence.
This means that, putting aside any emergency management days, Mr Uluivuya should be eligible for parole by no later than 20 September 2027, when he will be 57, and that his total sentence should expire two years later — i.e., by around 20 September 2029.
Section 6AAA of the Sentencing Act requires that I declare the head sentence and non‑parole period I would have imposed but for Mr Uluivuya’s plea of guilty — i.e., had he pleaded not guilty and been found guilty following a trial. This is usually a fraught exercise because pleas of guilty and not guilty may affect other considerations relevant to sentence in different ways. In this case, it is difficult — if not impossible — to separate the mitigating effect of Mr Uluivuya’s plea of guilty from, for example, its interrelationship with his remorse, his prospects of rehabilitation and his extensive admissions, the latter of which, as I have explained, seem to have made good an otherwise bereft case against him on identity. In those circumstances, I declare that, but for Mr Uluivuya’s plea of guilty — including its interrelationship with other sentencing considerations — I would have imposed a sentence in the order of nine years’ imprisonment with a non‑parole period of six years.
Finally, I make the disposal order sought by the Director, to which there was no objection.
---
0
14
0