DPP v Colton [2019] VSC 154

3 After prepaying the sum of $30 per night, Mr Jonuzi rented the third bedroom for the period 15 to 17 October 2017 through Airbnb. At the end of that period, Mr Jonuzi arranged with Mr Levy to stay on for another week at the same nightly rate. He told Mr Levy he would pay the sum of $210 when his salary came in.

4 Over the following week, Mr Jonuzi was unable to pay the rent, despite repeated requests from Mr Levy. Even though it was not your responsibility, you became preoccupied with the issue of whether Mr Jonuzi was going to pay the rent. You raised it several times with Mr Levy; you told him you were concerned that Mr Jonuzi was going to 'do a runner', to leave without paying the rent.

5 On the afternoon of Wednesday 25 October, after ascertaining that Mr Jonuzi still could not pay the outstanding rent, Mr Levy asked him to leave the property. You and Mr Levy then drove off to buy some cannabis. After returning half an hour later, you went to a bar in Bay Street, Brighton. Over the next couple of hours, Mr Levy smoked some cannabis, and asked Mr Jonuzi several times to pack up his room and vacate the house.

6 At 7:05pm, you sent Mr Levy a text message which asked 'All sorted?' He replied 'He's getting somewhere ... but stalling.'

7 When you returned from the bar, around 7:40pm, you went into the garage. Mr Smart returned to the house around 7:45 pm, and went to his room to play video games.

8 Eventually, after several requests from Mr Levy, Mr Jonuzi packed his possessions into his ute, which was parked out the front of the property. He asked Mr Levy to check the state of his room, which had been cleaned and vacuumed. Mr Jonuzi could not find his set of house keys to hand over, so he and Mr Levy searched for them for some time. Mr Jonuzi eventually disclosed that he had been arrested by police earlier that day, and the police had his set of keys.

9 After sitting in his vehicle for a while, Mr Jonuzi went back into the lounge room shortly after 8:00pm. He took with him a bottle of wine, from which he poured himself a glass. Mr Levy declined the offer of some wine, and continued to smoke cannabis. The two men were sitting on couches, when you entered the room.

10 You asked Mr Levy whether Mr Jonuzi had paid the rent; he replied that he had not. You then confronted Mr Jonuzi aggressively, demanding the rent money. You lunged at him, grabbed him by his collar, spun him around, and threw him against the wall. You began to choke Mr Jonuzi, by holding your forearm against his neck.

11 You then spun Mr Jonuzi back towards the couch, putting your arms around his neck, and putting him in a chokehold from behind. He was wriggling, trying to escape from you, so Mr Levy got involved by pushing Mr Jonuzi back under you, to enable you to hold onto him. Around this time, Mr Smart came into the lounge.

12 While Mr Levy held him, you punched Mr Jonuzi to the head, with a clenched fist, a number of times, until he lost consciousness. During the course of your attack, furniture was disturbed, and blood from Mr Jonuzi's bleeding nose spread around the room. You kept going on and on about the unpaid rent, as Mr Jonuzi kept asking to be left alone.

13 After Mr Jonuzi lost consciousness, Mr Levy suggested that he be taken outside. Mr Levy and Mr Smart carried Mr Jonuzi outside and dropped him on the front lawn, on his back, as you watched. You then dragged him by his chin, for several metres, around a tree in the front yard.

14 Mr Smart restrained Mr Jonuzi, by holding his legs in a figure four leg lock. You continued your vicious attack on Mr Jonuzi, punching and kicking him a number of times, including to the head. Mr Levy joined in the attack, dropping his left elbow into Mr Jonuzi's chest with such force that Mr Levy fractured his own ribs. Mr Jonuzi was wriggling, screaming, crying, and asking to be left alone.

15 You then rolled Mr Jonuzi over onto his front, placing your knee on his back and putting an arm around his throat, choking him. Mr Jonuzi was struggling to talk by this time, and his voice was quite raspy as he continued to ask to be let go. Mr Smart continued to restrain his legs.

16 You demanded the outstanding money; Mr Jonuzi said he would get it. He asked to use Mr Levy's phone to check his bank balance, so Mr Levy went inside to retrieve it. At 8:13pm, you loosened your hold around his neck, sufficiently to enable him to check the balance on the phone. There was still only about $6 in his account.

17 You went over to Mr Jonuzi's ute, rummaged around, and returned with a large, heavy, shifting spanner and a brown pencil case. You handed the shifter to Mr Levy and told him to hit Mr Jonuzi on the head with it. Mr Levy refused to do so, and announced that he was going to call the police. When Mr Levy left to go back inside, Mr Jonuzi was still conscious, crying and talking. Mr Levy called the police at 8:20pm.

18 After Mr Levy left, Mr Smart continued to hold Mr Jonuzi's legs in a leg lock. Part of Mr Jonuzi's pants had been torn off in the struggle, and you inserted the pencil case between his exposed buttocks.

19 Knowing that the police were on their way, Mr Levy took his drug paraphernalia out to his car, which he moved to park away from the house. As he walked out of the house to his car, Mr Levy saw that Mr Smart was still holding Mr Jonuzi's legs, and you were still close to his head.

20 After Mr Levy returned from moving his car, you went into the garage and removed your bloodied top.

21 When the police arrived, they found you and your two co-offenders holding, or close to, Mr Jonuzi's motionless body. You were at his head, Mr Smart was at his feet, and Mr Levy was on his right side.

22 Mr Jonuzi sustained fractures to bones and cartilage in his neck, which would have required at least moderately severe force to inflict; a broken nose; and numerous bruises, abrasions and lacerations to his face and scalp. He had blood in his airways (which is likely to have got there when he was unconscious), and petechial haemorrhaging (which is consistent with having suffered neck compression).

23 The police and paramedics were unable to resuscitate Mr Jonuzi, and he was declared dead at 9:13pm.

24 Asked by the police what had happened, both at the crime scene and in your subsequent formal interviews, you told them a pack of lies. You accused Mr Jonuzi of being the primary aggressor; you said that you had only been trying to subdue him, to defend yourselves. You downplayed the nature and extent of the violence in which the three of you had engaged. Even after you were aware that he had died, you called Mr Jonuzi a 'scumbag', a piece of trash, a junkie, someone who deserved everything he got.

25 You are being sentenced on the basis that Mr Jonuzi died as a result of the unlawful and dangerous assault which was committed on him by the three of you.

26 Although the offending was not premeditated, and did not involve any weapon, it is nevertheless a very serious example of manslaughter. It was a prolonged attack, lasting at least 10 minutes. It was a cowardly, vicious and unprovoked attack, in which three men punched, kicked, head-locked, choked, elbowed, restrained and dragged a defenceless, unarmed man who kept trying to get away. Mr Jonuzi did not fight back, and posed no threat to any of you at any stage. Even when Mr Jonuzi was injured and subdued, you went and got the heavy shifter and urged Mr Levy to hit Mr Jonuzi with it. You were very much the instigator of the entire attack, which started because you inserted yourself into a minor rental dispute between Mr Jonuzi and Mr Levy that was none of your business. Of the three co-accused, you were by far the most physically violent and were involved for the longest time; that said, you were only able to do all that you did because of the actions of your co-accused in helping restrain Mr Jonuzi.

27 During the scuffle, Mr Jonuzi's trousers were torn and partially removed. As Mr Jonuzi lay injured on the ground, and knowing that the police would soon be arriving, you inserted the pencil case between his exposed buttocks, in an entirely gratuitous and contemptuous act. That is an aggravating feature of your offending.

28 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others. Victim impact statements were filed by Mr Jonuzi's three sisters, and by his former long-term partner. Mr Jonuzi was the youngest sibling, and the only son, in his large and close-knit family. His loved ones all miss his happy, caring nature, and his infectious laughter. Understandably, they are struggling to make sense of how and why he died.

29 There is nothing this court can say or do that will bring back Mr Jonuzi, or heal his loved ones' grief and pain. The sentence I am going to impose is not a reflection of the worth or value of Mr Jonuzi's life; rather it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the victim impact statements.

30 I turn to consider your personal circumstances. You were born in May 1976 and are now 42 years old. You and your two brothers grew up in a stable family environment, in which you had many opportunities. You attended a private school until year 12. Your family are all law abiding, respectable members of the community. Your mother died when you were 21, after a long illness.

31 Throughout your adult life, you have worked in various roles in the hospitality industry, including working in management positions. You have completed several vocational diplomas.

32 In 2006, you met a Norwegian woman, whom you married a couple of years later. You moved to Norway and, in 2009, had a son together. You and your wife separated in early 2013, and you have not seen your son since then.

33 Between 2007 and 2013, you appeared before courts in Norway on four separate occasions, three of which involved acts of physical violence against others. The most relevant and serious convictions arose out of an incident in which you physically attacked your housemate several times, after an argument about living arrangements. In the course of one of those attacks, you entered his bedroom while he was sleeping, hit him several times on the head, and held him by the throat while he was asleep in bed. In August 2013, you were sentenced to 5 months' imprisonment for that offending.

34 A number of letters of support were provided by family, friends or former work colleagues. It is not apparent from their letters that they are aware of the brutal and totally one-sided nature of your attack, or of your prior criminal convictions, so I have given only limited weight to their assertions of your good character. That said, I do accept from their letters that you do have supporters who will be able to assist you with your eventual reintegration back into the community.

35 Your prospects of rehabilitation are enhanced by the fact that you have a stable employment history, support from family and friends, a demonstrated willingness and capacity to engage in further education, and no serious substance abuse issues.

36 On the other hand, given your prior convictions, the offending on this occasion cannot be viewed as isolated, aberrant behaviour. Your current and past offending demonstrates that you clearly have a problem with anger management, which you need to recognise and address.

37 Whilst you do have reasonable prospects of rehabilitation, there is still some need for specific deterrence, given your history.

38 You, Mr Smart and Mr Levy were all charged initially with murder. After the charge against each of your co-accused was reduced to manslaughter, they pleaded guilty. They were both sentenced in September 2018. Mr Levy agreed to give evidence at your trial, Mr Smart did not.

39 You first offered to plead guilty to manslaughter on 6 December 2018, some six months after the committal. The prosecution rejected that offer. At the start of your trial, on 28 February 2019, you pleaded not guilty to murder, but repeated your offer to plead guilty to manslaughter.

40 The prosecution case for reckless murder was a circumstantial one, which relied on the jury inferring beyond reasonable doubt that you caused Mr Jonuzi's death by choking him, sometime after Mr Levy had gone back inside. That case was heavily dependent on the initial opinion by the forensic pathologist, Professor Stephen Cordner, that the cause of death was compression of the neck and blunt force trauma to the head. However, in his evidence at your trial, Professor Cordner quite fairly conceded that there were three possible causes of death, only one of which was related to choking. He was unable to say from a medical point of view that one cause was more likely than the others. There was no direct evidence as to what the fatal act or acts were, or who inflicted them. Accordingly, at the close of the prosecution case, I upheld the defence submission that there was no case to answer on the reckless murder charge. You had the stress and uncertainty of a murder charge hanging over you until that time.

41 After I discharged the jury, and directed that a verdict of not guilty of murder be entered, you were arraigned and pleaded guilty to manslaughter.

42 You are entitled to a discount on the sentence to be imposed on you, by reason of your guilty plea. A guilty plea is taken to indicate a willingness to facilitate the course of justice. A court can also have regard to the utilitarian value of the plea; that value is not to be treated as diminished because the prosecution ran an unsuccessful murder trial against you. However, this is not an early plea.

43 Apart from any remorse which is implicit in your plea, there is some evidence that you have begun to develop remorse after initially lying to police. But the letter you wrote to the court falls short of demonstrating a full acceptance of responsibility for what happened that night, or an acknowledgement that you have anger management problems that you need to address. I have also given only limited weight to the various letters of support from family and friends, in so far as they express their belief that you are remorseful - none of them give any factual basis for expressing that opinion, or demonstrate that they understand the legal concept of remorse.

44 Given the nature of the offending, a clear message needs to be sent to people that they should not resort to violence to resolve financial disputes; furthermore, the sustained, brutal and unprovoked violence in which you engaged must be denounced.

45 Parity with the sentences imposed on co-offenders is also a very important sentencing consideration. Equal justice requires that like should be treated alike. But, if there are relevant differences in culpability, or in the personal circumstances of co-offenders, due allowance should be made for them.

46 On 26 September 2018, Tinney J sentenced both of your co-accused for manslaughter: he sentenced Craig Levy to 7 years 6 months' imprisonment with a non-parole period of 4 years 6 months,[1] and Ryan Smart to 9 years' imprisonment with a non-parole period of 6 years.[2]

47 Without diminishing the seriousness of the overall joint enterprise, his Honour noted that neither of the co-accused was the instigator of the attack, and their physical involvement was considerably less than yours. He regarded Mr Levy's role in the offending as more serious than Mr Smart's, but less serious than yours - a characterisation with which I agree.

48 At the time of sentencing, Mr Levy was 37, with only a few minor, irrelevant, prior convictions. Mr Smart was 38 years old, with no prior convictions. Both of them suffered from substance addiction and anxiety, although Verdins principles were not engaged. Tinney J regarded both men as having good prospects of rehabilitation.

49 Like you, Mr Levy and Mr Smart initially lied to police, falsely alleging that Mr Jonuzi was the aggressor, and that the three of you had only acted defensively. However, Mr Levy soon changed his position and gave a more honest account of events. Tinney J accepted that both men's subsequent remorse was genuine.

50 Mr Levy and Mr Smart both offered to plead guilty to manslaughter much earlier than you - around the time of the committal. Mr Levy also offered to make a statement and assist the authorities, for which he received what Tinney J described as a significant discount on his sentence.

51 Having had regard to all of these matters, for the manslaughter of Ramiz Jonuzi, I sentence you to imprisonment of 11 years. I fix a period of 8 years before you will become eligible for parole.

52 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 13 years' imprisonment, with a non-parole period of 10 years.

53 Further, I declare that the period to be reckoned as already served under this sentence is 510 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

[1] R v Levy [2018] VSC 567.

[2] R v Smart [2018] VSC 568.