DPP v Ulutui [2025] VCC 1091

1. The circumstances of your offending were outlined in the prosecution opening, marked as Exhibit A on the plea hearing today. Given the sentence followed the plea hearing in this matter, the Court did not summarise the offending but indicated it would appear in its reasons. As foreshadowed, the following is a summary of your offending.
2. You were 25 years old at the time of the offending. Your co-accused is your sister, Claudia Ulutui ('Claudia'). The offending is captured on CCTV footage of the hotel carpark. At the time of the offending, you were subject to a firearm prohibition order. The victim is Kelsey Craig.[1]
3. In the early morning on 15 March 2024 Ms Craig and her brother Wade Moss[2] ('Wade') drove to the Hampton Park Tavern in Hampton Park. Whilst driving to the Tavern, Wade got into the back passenger seat and fell asleep.
4. At about 1:38AM Ms Craig parked in the Hotel carpark and shortly after went into the Tavern and played the pokies. You and your sister arrived at the Tavern at about 2:44AM.
5. CCTV from inside the Tavern shows both you and Ms Craig talking whilst you are both playing the pokies.
6. Shortly after Wade woke up, he saw Ms Craig returning and get into the driver's seat of her car. She was followed by you and your sister.
7. You and Claudia stood beside the car and asked Ms Craig for a cigarette. She gave each of you a cigarette that you started to smoke and continued to talk amongst yourselves for a few minutes.
8. At 3:40AM CCTV shows you reaching into the car and wrestling with Ms Craig. According to Wade, you and Claudia were trying to pull Ms Craig from the car and both of you were smacking her in her head. You told Ms Craig you wanted her money. She told you she did not have anything. According to Wade, Ms Craig gave you something but you were unhappy and threw it back at her.
9. The CCTV footage shows the drives side door at the time partially open and your co offender, Claudia, standing in the way stopping Ms Craig from closing it.
10. Wade reached from the back seat and pushed the button to start the car. You turned the car off. At this point Wade saw you had a small hand pistol. You demanded Ms Craig give you all her money. She said no and tried to shut the car door.
11. You realised that Wade was in the back seat and pointed the gun at him. You then fired the gun shooting Ms Craig in her left forearm/wrist. According to Wade, you told Claudia to go and get the bag on the front passenger seat.
12. The CCTV footage at 3:41AM showed Claudia running around the back of the car to the front passenger side and take the bag sitting on the front passenger seat. She stopped to pick up some of the items that had fallen onto the ground. You put an item, alleged to be the hand gun, back into your pocket as you and Claudia run to the corner of the Princes Highway and Hallam Road.
13. Ms Craig drove away, but soon after pulled over so Wade could take over driving. He drove to the Dandenong Hospital where the Ms Craig was treated. The hospital called police to inform them a patient had presented with a gunshot wound.
14. The police attended at approximately 4:15AM. Ms Craig gave an account of the offending to Police and identified the offender as Devontae and an unknown female.
15. On 16 March 2024, police attended at the Hampton Park Tavern where they viewed the CCTV footage.
16. At the scene, police found three (3) cigarette butts in the area that the offending occurred. The cigarette butts were seized.
17. On 20 March 2024, you and your sister were arrested by the Special Operations Group at the Bruce Country Hotel in Mount Waverley. You were taken to the police station where you both made no comment record of interviews.
18. Police searched the hotel room and located the following items: 1 x .22 calibre double barrelled handgun (Charge 6); and 1 x .22 calibre ammunition round.
19. On 16 March 2024 Ms Craig was admitted to Dandenong Hospital where she underwent surgery for debridement of the gunshot wound. During surgery fragments were removed and retained for analysis.
20. On 15 November 2024, the following items were analysed by police at the Ballistics Unit at VFSC:
21. A derringer Pistol:

i. This was a .22 long rifle calibre Remington Arms make, Type 3 Derringer pistol. This is a single action, double barrel 2-shot pistol. This model was produced circa 1912-1935. The original calibre was .41 Rimfire, however this item had been modified with the addition of a.22 calibre barrel inserts. These inserts would allow the chambers and firing of the more common and available .22LR calibre ammunition. The firearm was in reasonable working order and was able to be fired.

b) A cartridge: This cartridge was suitable for use in the derringer pistol.

c) A specimen jar containing fragments: These fragments were non-ferrous and could not be identified as fired bullet remnants.

1. On 21 January 2025 various exhibits were analysed by police, as outlined in the opening, with some DNA evidence both excluding and inculpating you.
2. On 17 March 2024 Ms Craig declined to make a police statement and on 15 July 2024 she was compulsorily examined. A summary of her evidence is extracted in the opening. Overall, while she gave some evidence as to the circumstances of what occurred she was unable to recall what happened after giving the male and female a cigarette.
3. Your sister and co-accused resolved her charges in the Magistrates Court and entered a plea of guilty to charges of robbery and possess unregistered general category firearm (based on the firearm being located in her bag upon arrest). As indicated in the opening she was sentenced to a Community Corrections Order on the charges. While I have turned my mind to considerations of parity, there is a proper basis for distinction here given the different charges she pleaded guilty to.
4. You were remanded on 24 March 2024 and have a total of 498 days of pre-sentence detention.

1. The offending you have pleaded guilty to is serious, as indicated by the applicable maximum penalties. The charge of armed robbery carries a maximum penalty of 25 years imprisonment. Also, because it was committed in company it is a category 2 offence which mandates a term of imprisonment unless a relevant exception applies. No exception has been relied upon and on my assessment I do not consider that any are engaged in your case.
2. The prosecution submit that the offending is serious and warrants a term of imprisonment. Planned or not, to fire a loaded shotgun in the direction of any person, knowing that it is likely to cause injury, is very serious. I take into account on charge 2, the injuries sustained and the treatment required.
3. Your Counsel submits that while your offending is serious it can be distinguished from more grave examples of this type of offending**.** I take into account your Counsel's submissions that the duration of the offending is very short; a matter of seconds. Beyond that which might be suggested by your possession of a firearm, there is no sufficient factual basis to find that the offending was premeditated and I make no such finding. I accept your Counsel's submission that the events as they unfolded at the vehicle were spontaneous and that there was no sophistication or organisation involved in the offending.
4. The principle of totality is also relevant in your case. The sentence imposed needs to reflect the separate criminality of each charge but I accept your Counsel's submission that charges 1 and 2 arise within essentially one sequence of events and that substantial concurrency is appropriate.
5. In relation to your possession of the firearm, both Counsel agree that it cannot be proven to the requisite standard that it was the same firearm used on the other charges or that it was connected with other criminal offending[3]. I take into account that the pistol was in reasonable working order and capable of being fired and was located with a cartridge suitable for its use.
6. The purpose of the Firearm prohibition order scheme is to promote community safety by ensuring that weapons do not fall into the wrong hands. It is therefore important that the sentences imposed for offending in breach of an order send a strong message to others who might be tempted to disregard a Firearm Prohibition Order for which they are subject[4] .

1. I take into account your plea of guilty which attracts an important sentencing discount. It is not an early plea and there was a contested committal that proceeded. I accept your Counsel's position that the process has assisted in facilitating the ultimate resolution of your case. Your case was listed for sentence indication hearing on 29 May 2025 and 13 June 2025. You accepted the indication and on the 20 June 2025 you were arraigned and formally entered pleas of guilty to the charges.
2. Your plea has utilitarian value. There was some dispute between the parties as to whether the prosecution case is a strong one. As clarified further in Court, this relates mostly to a factual dispute as to what occurred at, or in, the car. On my assessment, I do not regard the prosecution case as a weak one but I accept that, as advanced by your Counsel, there were some triable issues, related to the credibility and reliability of the primary witnesses. I do accept that your plea indicates a willingness to facilitate the course of justice and accept responsibility for your offending.

1. Your personal circumstances were canvassed by your Counsel and are outlined in the report of psychologist Mr Warren Simmons, dated 31 May 2025.
2. You are now 26 years of age. At the time of your offending you had just turned 25 years. While not a young offender I accept that you are still youthful and that the well-established principles relating to young offenders continue to have some application in your case; balanced against the seriousness of the offending.
3. You were born in Victoria and raised in the southeastern suburbs of Cranbourne. You are of Samoan background.
4. Your early childhood was a positive one for the period that your parents and maternal grandmother lived together. It seems your grandmother was instrumental in ensuring cohesion and unity in the family. She passed away when you were around 5 or 6 years of age and soon after your parents separated and the family unit disintegrated. From this time onwards you were exposed to significant instability and trauma.
5. After separation, you went to live with your father and also had lots of contact with your paternal grandparents. Your father and grandparents were strict and physical discipline was often administered. While you lived with your father you were not close with him. Also, you felt that your stepmother hated you and seemed to only care for her own children. You report that she often directed the discipline that your father imposed and therefore you felt targeted by her.
6. In your teens you went to live with your mother however these living circumstances were also strained and your relationship with your stepfather was poor.
7. Growing up you felt unwanted by both your parents, and you describe being very angry in your teenage years.
8. Since around the age of 13 you have never had stable accommodation. For most of your life you have either been homeless or couch surfed with associates or cousins. You would often sleep at your cousins' or friends' homes. At one point you slept at Frankston beach or the playground near the beach for periods.
9. Within this context, you were exposed to alcohol and drugs at around the age of 14. By the age of 15 you developed an addiction to methylamphetamine and you have been battling this addiction for years. Mr Simmons canvasses your history of drug and alcohol use, commencing with excessive alcohol consumption, cannabis, methylamphetamine, cocaine, Xanax and GHB. He notes that at the age of 15 you were first introduced to methamphetamines by an uncle and then at around the age of 20, GHB through peers. He opines that at the time of your remand you were using GHB and methamphetamines, such that you would have met the criteria for both Stimulant and GHB Use Disorders.
10. You have a relevant and extensive criminal history, commencing in the Children's Court from about the age of 15. You have a history for violent, dishonesty, drug and firearm offences both in the Children's Court jurisdiction and more recently, in the adult jurisdiction. Given your transient lifestyle and drug use, you have spent a good part of your adolescence in and out of Youth Justice Centres. You completed Year 10 at a Youth Justice Centre. Your education in the community was otherwise disrupted, with you dropping out of school after Year 7, having experienced some academic difficulties and behavioural issues (see at [10]).
11. Your employment history is limited. In 2020 you worked as a furniture removalist for approximately 3 months. Your main source of income has been through Centrelink.
12. In 2021 you began residing with your aunt and lived with her until 2022. Within this time you did not come before the criminal justice system and experienced a period of support and stability. You continue to maintain contact with your aunt but the relationship over time has been strained. She is a practicing Christian and has difficulties accepting some of your choices. In recent years you had also formed a long-term relationship with a 24 year old woman named Susan which you identified as supportive and positive, as canvassed in Mr Simmons' report.
13. While, on reflection your circumstances may not qualitatively reach the heights of Bugmy, your background is one of trauma and instability[5]. Mr Simmons considers that you experience symptoms of Post Traumatic Stress Disorder (PTSD), which I accept, as a result of detachment, emotional and physical abuse and your experiences of violence at the hands of your father and family when growing up. These symptoms account for your recourse to alcohol in your younger years, representing an attempt to self-medicate and cope. The impact of disadvantage is complex and can be nuanced and I take into account your circumstances, including the lack of stability from a young age, in terms of accommodation and your exposure to drugs from a relatively young age, in sentencing you.
14. I do not accept your Counsel submission that general deterrence should be moderated in accordance with Verdins principles[6]. As the prosecution submit, it requires a robust assessment. Whether general deterrence should be moderated in a case depends on both the nature and severity of the condition, and the effect of that condition on the mental capacity of the offender at the time of the offending, or at the date of sentence, or both. There must be a proper and informed consideration of how the conditions impact and I consider this to be lacking, particularly also given the clear connection between your substance use and your offending behaviour[7] . Also, I do not consider there to be an adequate evidentiary foundation to enliven limb 5 of Verdins or any other Verdins principle.
15. You are presently remanded at MRC within a mainstream unit. You are not prescribed any medication and have been subject to several urine screens which have been clear. You do not work in custody but have undertaken several courses.
16. On release you do not have stable accommodation to return to. Instead you will seek assistance for housing support. Your goal is to obtain stable accommodation and return to being a furniture removalist, which you enjoyed.

1. It is agreed between the parties that you have a total of 270 days in Renzella time, which is constituted by various periods you spent in custody for matters upon which you were ultimately found to be not guilty[8].

1. Your rehabilitative prospects are guarded. I note that you have an outstanding matter in the courts. As it is contested, with the issue relating to identity, and its outstanding, aside from it being of some general relevance to your circumstances and future prospects, the Court will not draw adverse inferences as to your guilt or otherwise.
2. Mr Simmons considers that you would benefit from ongoing drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. In addition, he recommends a referral to a psychologist to assist you in addressing your symptoms of PTSD as well as the issues arising from a sense of rejection by both your mother and father and the sense of loss of their support.
3. In my assessment I do take into account that you are still a relatively young man. I also note that in the past few years there has been a decrease in offending behaviour when you had managed, after your release from a straight 10 month sentence, to achieve some degree of stability for a period. I consider that your prospects will be enhanced if you receive targeted treatment and support in the community.

1. The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.
2. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case.
3. I take into account Counsel's submissions as advanced at the previous indication hearings and briefly at the plea hearing today. I take into account all of the written material previously relied upon and tendered today.
4. I take into account the principles of parsimony, proportionality and, as already canvassed, totality.
5. I have had regard to the general sentencing landscape for the offences to which you have pleaded guilty, including charges of intentionally cause injury where firearms are used. I also take into account the available statistics that Counsel have referred me to, noting of course the inherent limitations of statistics.
6. There is no dispute that the only just and appropriate sentence for your offending is one of imprisonment, structured with a non-parole period. Your Counsel submits that the Court should entertain imposing a longer than usual non-parole period taking into account in particular your relatively young age and your background of disadvantage. You will require support upon release with your drug use, mental health, housing and reintegration within the community. The prosecution dispute that there is a proper basis in support of a 'longer than usual' non-parole period. In my consideration of this matter, I take into account all relevant circumstances, including your young age and the denunciatory and punitive purposes of sentencing, to arrive at what I consider to be the minimum that justice requires you to serve.

1. Synthesising all relevant factors, you are convicted and sentenced as follows -
2. Charge 1 armed robbery, convicted and sentences to two and a half years' imprisonment. So two years and six months.
3. Charge 2 intentionally cause injury, convicted and sentenced to two years' imprisonment.
4. Charge 3, the possession of the firearm against the Firearm Prohibition Order, convicted and sentenced to 12 months' imprisonment.
5. Charge 1 is the base sentence. The orders for cumulation are as follows: Charge 2, six months' imprisonment. Charge 3, four months' imprisonment which as previously indicated should arrive at a total effective term of three years and four months' imprisonment. Counsel, you agree?
6. MR PICKERING: I do, Your Honour, yes.
7. MR RANJIT: Yes, Your Honour.
8. HER HONOUR: I set a non‑parole period as also indicated of two years and two months' imprisonment.
9. MR RANJIT: Yes, Your Honour.
10. HER HONOUR: I make clear as I indicated to counsel today that I will have this entered into the order and the records of the court that I have taken into account and accordingly reduce your sentence from what it otherwise would have been the 270 days of Renzella time that you are entitled to.
11. Pursuant to s18 of the Sentencing Act, I declare that you have served 498 days as presentence detention.
12. Pursuant to s6AAA, I declare that but for your plea I would have sentenced you to some four years and six months' imprisonment, again taking into account the Renzella time and I would have fixed a non‑parole period of some three years.
13. I make the forfeiture order unopposed in the terms sought. Counsel, is there anything further?
14. MR PICKERING: No, Your Honour.
15. MR RANJIT: As Your Honour pleases.
16. HER HONOUR: All right, thank you very much for your assistance. Mr Ranjit, do you want the link just to remain for a moment with Mr Ulutui? I mean it was from a sentence indication, but you might want a moment to speak to him.
17. MR RANJIT: Yes, I have had a discussion with him at 1.45 already, Your Honour, so there are no issues.
18. HER HONOUR: Terrific.
19. MR RANJIT: Yes so I am well ahead of schedule, thank you, Your Honour.
20. HER HONOUR: All right, thank you. Mr Ulutui, you understand the sentence I have imposed? It is in accordance with the sentence indication. I have taken away the time that you have served in custody and no doubt you will continue to speak to your lawyers in relation to any ongoing matters, all right? We will adjourn the court. Thank you.

[3] Berichon v R [2013] VSCA 319.

[4] Bruce v The Queen [2019] VSCA 100.

[5] Bugmy v The Queen [2013] HCA 37.

[6] R v Verdins [2007] VSCA 102.

[7] Hu v The King [2025] VSCA 60.

[8] R v Renzella [1997] 2 VR 88.