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[2020] VSC 383
General information, not legal advice.
Supreme Court of Victoria
2020-06-26
BEALE J
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Common Assault - Assist Offender (Murder) - Offenders motivated by fear of principal offender - Plea of guilty - Undertaking to give evidence against principal offender.
1 Boon Ping Lee and Lee Chen Kong, both of you pleaded guilty on 25 May 2020 to common assault (charge 1) and assisting an offender, believing he had committed murder (charge 2).
2 The maximum penalty for common assault is 5 years' imprisonment. For assisting an offender believing he had committed murder, it is 20 years' imprisonment.
3 The man you both assaulted was Umit Ergan Bolat ('Bolat') whom the prosecution alleges was murdered by Huai De Ooi ('Ooi') the same night. Ooi is the person whom you both assisted in various ways after Bolat's death, believing Ooi had murdered Bolat.
4 Ooi's trial for murder is listed to commence on 26 October 2020, and you have both undertaken to give evidence against Ooi.
5 I will now summarise the circumstances of your offending.
6 In April 2018, Bolat, who was aged 45 and worked as a fruit-picker in the Shepparton area, was introduced to Ooi who lived on a property in Hill Rd, Lemnos. Ooi also worked as a fruit picker, as well as organising fruit picking work for others, including both of you. You, Lee, also lived at the Lemnos property with Ooi and others.
7 After Bolat was introduced to Ooi, he purchased drugs from him from time to time. The association between Bolat and Ooi soured when Bolat failed to transfer ownership of a car to Ooi in satisfaction of his drug debts.
8 On 12 August 2018, Bolat visited the Lemnos property and remained there overnight in the company of Ooi, you, Lee, and others.
9 On the evening of 13 August 2018, Bolat was still at the Lemnos property. Ooi contacted co-offenders Kosin Hariphong ('Hariphong') and Tui Tunumafono ('Tunumafono'), ostensibly to help him eject Bolat from the house.
10 Sometime after their arrival, Ooi and Bolat began to argue about the transfer of the car and the confrontation became physical. Hariphong and Tunumafono joined in the fight.
11 Ooi produced a pocket knife, held it to Bolat's throat and ordered him to sit on the floor in the dining room. Once there, Ooi hit Bolat in the leg multiple times with a wooden stick until the stick broke, then stabbed him above the knee with his pocket knife before striking him to the legs with a metal pole.
12 One of the other residents, Perisamy Kannan ('Kannan') struck Bolat's head with a chair, causing his nose to bleed. Bolat was calling for help and asking for more time to complete the transfer of the car. Ooi said 'no more opportunities'.
13 Ooi told you, Lee, to assault Bolat. You struck Bolat to the legs with the metal pole (charge 1). You did so because you were scared of Ooi.
14 Ooi and Kannan tied Bolat's hands behind his back.
15 At around 9.00pm, Hariphong and Tunumafono left the address.
16 At around 11.00pm, you, Kong, were summoned to the property by Ooi. When you arrived, Bolat was bound on the living room floor but still alive and talking. He was placed on an airbed to stop his blood from getting on the carpet.
17 On Ooi's instruction, you, Kong, hit and kicked Bolat 'a few times'[1] (charge 1). You did so because you were also scared of Ooi.
18 Over the next couple of hours, Bolat was further assaulted, including by Ooi and Kannan, who threw metal gym weights on his head whist he was lying face-down on the mattress, causing his breathing to become laboured. Kannan said to Ooi 'let him die' to which Ooi replied 'not let him die, let him die slowly...give him a hard time before he dies'.
19 Sometime after midnight, Ooi placed a plastic bag over Bolat's head and secured it with tape. You, Kong were present in the dining room when this occurred but saw it happen. You, Lee were in the kitchen.
20 Ooi, Kannan and you, Kong, wrapped Bolat's body in bedding and placed him near the door.
21 On Ooi's instructions, you, Lee, cleaned up Bolat's blood and burnt his clothing as well as the wooden stick and air bed.
22 On 14 August 2018, around 5.00am, Ooi and you, Lee, put Bolat's body in the boot of Ooi's car. You, Lee, drove Ooi, with Bolat's body in the boot, to Cobram East, where Ooi and you, Lee, dumped the body in the Murray River.
23 Meanwhile, at the direction of Ooi, Kannan drove Bolat's car to the Woolworths supermarket in Shepparton and left it there. You, Kong, followed behind Kannan in your own car and then drove Kannan back to the Lemnos property.
24 On 21 August 2018, Bolat was officially recorded as a missing person. When questioned by police about Bolat's whereabouts, Ooi and you, Lee, said you had not seen Bolat since 13 August 2018.
25 On 10 October 2018, Ooi and both of you were arrested and remanded in custody.
26 You, Lee, fully cooperated with police, made a written statement and directed them to the location of Bolat's body.
27 You, Kong, initially denied any knowledge of Bolat's fate. However, you eventually gave an account consistent with Lee's account.
28 On 11 October 2018, police recovered Bolat's body from the Murray River. It was wrapped in a blanket, his head covered with two plastic bags and his limbs bound.
29 The pathologist observed evidence of sharp and blunt force trauma, scalp lacerations a broken nose, a skull fracture and broken ribs. The precise cause of death remains unknown.
30 Also on 11 October 2018, Ooi and both of you were charged with Bolat's murder.
31 On 19 October 2019, Hariphong and Tunumafono pleaded guilty to common assault in respect of their roles in the above offending. They were both placed on a 2-year adjourned undertaking to be of good behaviour, having also undertaken to give evidence against Ooi at his murder trial.
32 Kannan has not been charged and his whereabouts remain unknown.
33 On 13 May 2020, you, Kong, provided police with a statement in which you gave more fulsome details of the circumstances surrounding the murder.
34 On 18 May 2020, a plea indictment containing the charges currently before this Court was filed.
35 On 25 May 2020, as mentioned, you both pleaded guilty.
36 Two of Mr Bolat's daughters attended the plea hearing. Both provided a victim impact statement.
37 Ebru Bolat said that as a consequence of her father's murder, she became socially isolated in order to avoid speaking about the circumstances of his killing and withdrew from her family and community, saying she had lost trust in those around her. She felt unable to continue with her studies or employment.
38 Her father was her hero and best friend. He made her feel safe.
39 For her, there was special pain in the ultimate location of his body as they used to fish together and those were some of her most cherished memories.
40 She now suffers from nightmares about the circumstances of her father's death and has been prescribed antidepressant medication.
41 She laments her father's absence from the significant events in her life.
42 Ms Bolat is also saddened by the impact of the crime on her brother, who suffers from Down syndrome and is unable to understand his father's absence.
43 She says that while Lee and Kong may not have killed her father, she feels they played a role in his absence from her life.
44 Merve Chauhan has also been rendered solitary by her father's killing, avoiding social and family gatherings for fear of being reminded of him.
45 She mourns not only his death, but the fact that he will never know his grandson, who was born after her father's disappearance.
46 She says then when she learnt of his murder, she felt her heart had been ripped from her chest.
47 In the weeks and months following the murder, she felt unsafe in her home and was unable to sleep. She too has been prescribed medication.
48 She had a close relationship with her father and initially found it hard to accept he was gone.
49 She struggles to comprehend the brutality of his murder and says she feels empty.
50 Understandably, the victim impact statements focus on Mr Bolat's killing, and its many ramifications. Consequently, I need to emphasise that neither of you fall to be sentenced for murder.
51 Let me summarise the aggravating circumstances in this matter.
52 Both of you assaulted Bolat when he was already badly beaten up and defenceless.
53 It is unclear exactly when Bolat died, but both of you were present when he was repeatedly and seriously assaulted over an extended period of time. You were witnesses to and indeed participants in his horrific ordeal which culminated in his death. You, Lee, acknowledge that you saw him being struck with the weights.[2] You Kong, witnessed him being struck with the weights and the plastic bag being placed over his head. [3]
54 I turn to an assessment of the objective seriousness of your offences.
55 The assaults perpetrated by each of you considered objectively are upper range examples of that offence because Mr Bolat was already in such a bad way when you each struck him.
56 Lee, I consider yours a mid-range example of the offence of assist offender (murder). You gave Ooi considerable assistance as mentioned above.
57 Kong, I consider yours a low-range example of the offence of assist offender (murder). The assistance you gave Ooi was more limited than that given by Lee, both in terms of what you did and the time over which you did it.
59 Fortunately, neither of you have any criminal antecedents.
60 Lee, at the time of the offence you were 25 years old. You are now 26.
62 Your mother came to Australia in 2008 in order to find work and send money home to the family in Malaysia. You followed her on a tourist visa when you were 14 years old and began working alongside her as a fruit-picker in the North-East of Victoria and continued to do so until your arrest.
63 Your visa has since expired and your mother was deported when you were 21. You speak only limited English, and when your mother went back to Malaysia you had limited supports in the community.
64 You became involved with Ooi after he offered to assist you to repay your gambling debts. Thereafter you say you began working for him fruit-picking and residing with him at the Lemnos property. Ooi would retain a percentage of your wages for room and board and to repay the money he had earlier loaned to you.
65 Kong, at the time of the offending in question, you were 44 years old. You are now 46.
66 You were born on 4 June 1974 in a sibship of 4 to a Buddhist Chinese-Malay family in Malaysia in a small village about a 30-minute drive from Kuala Lumpur where you spent most of your life. Prior to retirement, your father was a motor mechanic and you mother performed home duties. Your eldest brother passed away at age 30. Your family lived in modest circumstances. You report no special disadvantage in your upbringing. Your sisters are married with their own families. You have no dependants. You speak only limited English.
67 You left school at age 14 or 15 having attained the equivalent of grade 6 education. Thereafter you worked in a number of low-skilled vocations for varying lengths of time.
68 In 2010, when you were 35, you came to Australia on a working holiday visa which has since expired.
69 Prior to your arrest, you were living in the Shepparton area working as a seasonal fruit-picker on a predominately cash-in-hand basis.
70 Since 2017, you say that Ooi had been responsible for many of the jobs you secured.
71 For a time, you maintained a relationship with a Malaysian woman in Ardmona. She provided a statement in connection with these proceedings. However, you say that she returned to Malaysia after you were remanded in custody.
72 Let me summarise the mitigating circumstances in respect of each of you.
74 Both of you offended because you were scared of what Ooi might do to you but I note that, by your pleas, you both disavowed the defence of duress.[4]
75 Both of you have made signed statements to police implicating Ooi in the murder of Bolat.
76 Both of you undertook at your plea hearing to give evidence for the prosecution against Ooi in his trial for murder, which is listed to commence on 26 October 2020.
79 Both of you have been incarcerated during Covid-19 gaol restrictions.
80 Lee, you also assisted police to recover Bolat's body.
81 Kong, you have spent time in protection whilst in custody.
82 The prosecution and defence provided me with a Table of Sentencing Cases in relation to assisting offender (murder). I have made some modifications to that Table and include it as an annexure to these sentencing reasons. The sentences referred to in the Table vary greatly but I derived some assistance from them.
83 I turn finally to the sentences to be imposed on each of you.
84 Lee, on charge 1, I sentence you to 1 year of imprisonment.
85 On charge 2, I sentence you to 2 years' imprisonment. This will be the base sentence. I make 6 months of the sentence on charge 1 cumulative on the base sentence, making a total effective sentence of 2 years' and 6 months' imprisonment.
86 I fix a non-parole period of 18 months' imprisonment.
87 I declare that you have already served 625 days by way of presentence detention.
88 Kong, on charge 1, I sentence you to 1 year of imprisonment.
89 On charge 2, I sentence you to 18 months' imprisonment. This will be the base sentence. I make 6 months of the sentence on charge 1 cumulative on the base sentence, making a total effective sentence of 2 years' imprisonment.
90 I fix a non-parole period of 12 months' imprisonment.
91 I declare that you have already served 625 days by way of presentence detention.
92 Section 5(2AB) of the Sentencing Act 1991 (Vic) requires me to state that I have passed a less severe sentence on each of you because of your undertakings to give evidence against Ooi, and I do so.
93 Section 6AAA of the Sentencing Act 1991 (Vic) requires me to indicate the sentence I would have given you but for your pleas of guilty. Because your pleas of guilty and undertakings to give evidence against Ooi are interwoven, I propose to indicate the sentence I would have imposed but for that combination of mitigating factors.
94 Lee, I would have sentenced you to 5 years' imprisonment with a non- parole period of 3 years' imprisonment.
95 Kong, I would have sentenced you to 4 years' imprisonment with a non-parole period of 2 years' imprisonment.
CFA called to burning car, found V's body in boot. Autopsy revealed high impact blow to neck; dead when put in car. D not present when V killed by PO. Knowledge of murder limited to what PO told D when he eventually asked D to help dispose of V's body. D initially refused.
Some limited prior convictions; undertaking to give evidence against PO; remorse; prospects for rehabilitation.
D in volatile relationship with PO. D suggested a threesome with V and invited V over. During the sexual activity, PO got jealous and hit V in the head and strangled him. D was in bathroom when assault began. D assisted PO by moving body into garbage bin, cleaning floor, lying to police.
D offered to be witness against PO but no undertaking because PO, after committal, PG to murder. D had some prior convictions but none for violence.
[2017] VSC 64 (co-offender of Marmo)
D assisted with disposal of body, washing vehicle used to transport V's body and destruction of vehicle. Only knew one of the two POs very slightly.
100 hours community work; treatment and rehabilitation conditions.
D had limited prior convictions; undertaking to give evidence against PO.
PO, D, V and W were four fruit-pickers working on a tomato farm. Early one morning, without warning, PO stabbed V in his van multiple times with D's knife. D prevented W from assisting V. PO and D drove W and V's body around in V's van while they worked out where they were going to dispose of the body. D assisted by driving, taking money from W for fuel for vehicle, gave away V 's items, remained travelling with PO for two weeks, lied to police.
D had some convictions; few were for offences of violence; no undertaking to give evidence against PO.
D stayed at V's house overnight with PO. In the morning, PO showed D V's naked, bruised body in the V's bedroom and admitted killing her. D assisted by distracting others while PO removed body from the house and then driving PO to find somewhere to dispose of body. Kept look out while PO used chisel and hammer to remove V's teeth and lower jaw and was with PO when petrol used to set body on fire.
Not present during murder; young; remorse; many mitigating features; undertaking to give evidence against PO.
D unable to bear children. Motivated to kill intellectually impaired mother of four young children so as to become mother to her children. D attempted to kill V by drugging. Then male PO bashed V to death. D assisted with disposal of body.
D had some minor prior convictions. No undertaking to give evidence against PO.
V assaulted over extended period of time by two POs. D was the cousin of one PO. D assisted the other PO with alibi, disposal of body and sanding bloodstains from floor.
D had relevant prior convictions. No undertaking to give evidence against PO.
D not present when V killed by PO. D agreed to help PO to "move some stuff" and was in the car before being told he was helping get rid of a body. PO held a knife to D's throat and threatened him before D agreed. D assisted PO to dispose of V's body in You Yangs.
D had numerous prior convictions but none for relevant offending; gave assistance to investigators; undertaking to give evidence against PO.
PO shot V in the chest in a drive-by shooting in retaliation for V burgling his house. D in passenger seat at the time. D assisted with disposal of firearm; travelled interstate with PO; lied to police.
44 years' old; long-term drug abuse; D had prior convictions but they were of a limited nature in terms of violence; reasonable prospects of rehabilitation; undertaking to give evidence against PO.
[1] Statement of Lee Chen Kong dated 13 May 2020 at [4].
[2] Statement of Boon Ping Lee dated 11 October 2018 at [22]-[24].
[3] Statement of Lee Chen Kong dated 13 May 2020 at [7]-[8].
[4] See s 322O of the Crimes Act 1958 regarding the statutory defence of duress.
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Lee & Kong [2020] VSC 383