R v Tunja [2011] VSC 491

2 On Saturday 21 November 2009, Mr Biram was at his home at 58 Alamein Road, West Heidelberg. At around 11.45pm in the evening, an argument broke out between a group of people at a neighbouring house, 57 Alamein Road. You were present at 57 Alamein Road, having arrived some time earlier with Dylan Lawrenz, Ricky Magee and Ashley Gallien.

3 The argument that broke out at number 57 spilt onto Alamein Road. It was loud and involved a large group of people screaming at each other.

4 After hearing the commotion, Mr Biram went to investigate the disturbance and yelled at the group with a view to having them cease and desist. Various males, including Gallien and Lawrenz, became involved in a fight with Mr Biram. The fight continued onto the road and across towards number 60 Alamein Road. At one stage, Mr Biram was on top of Lawrenz. Others were also observed to be removing fence palings from a nearby fence.

5 While Mr Biram was on top of Lawrenz, you slit the throat of Mr Biram. Mr Biram collapsed and you fled the scene. Mr Biram did not regain consciousness and died in the front yard of 60 Alamein Road.

6 The wound you inflicted on Mr Biram was over the right side of his neck, approximately 12 centimetres long, running over the area of the Adam's apple and going slightly higher as it went to the right. The wound was described by the pathologist as "quite deep and extended through the muscle tissues at the side of the neck and also passed through some major blood vessels including the carotid artery ... and the jugular vein". The pathologist found that the wound was nine centimetres in depth at its maximum. Whilst a number of other injuries were inflicted on Mr Biram on the night in question, it was your slitting of Mr Biram's throat that caused his death.

7 You were born on 20 January 1985. At the time you murdered Mr Biram, you were aged approximately 24 years and 10 months. You are now aged 26 years and eight months. Your mother is of Turkish background, though born in London. You are the middle son of three boys, all born in Australia. You never knew your father. You are close to your brothers and to your mother. You were educated to Year 10 level. After leaving school, it appears you worked in various jobs, preferring jobs where you were not "enclosed physically or conceptually". You have completed courses in hospitality, Certificates One, Two and Three. During the plea hearing, your counsel submitted that it was your intention at some point to be a cook. You have been in custody for some 673 days. While in custody, you have completed six programs or courses. The subjects studied include Participate in Workplace Safety Arrangements and Follow Workplace Hygiene Procedures.

8 You have prior convictions for intentionally causing serious injury, assault, aggravated burglary, recklessly causing injury, possessing a controlled weapon without excuse, theft and failing to answer bail. On 18 July 2003, you were convicted of intentionally causing serious injury and sentenced to three years' detention in a youth training centre. It is this conviction and sentence that makes you a serious violent offender within the meaning of Part 2A of the Sentencing Act 1991.[1]

9 I have read and re-read several times the Victim Impact Statements of the deceased's mother, Margaret Forbes-Biram, the deceased's brother, Nigel Biram, the deceased's ex-girlfriend and mate, Leanne Carter, the deceased's close friend and housemate, Darren McIlwain and the deceased's close friend and neighbour, Sharon Arnold. They are moving documents which show the devastating impact of your crime on the lives of those nearest and dearest to Mr Biram. As they describe him in their statements, Mr Biram was a kind, generous, funny, intelligent and loving man, who is deeply missed, and will be so missed, by his family and friends every day for the rest of their lives. The losses to those closest to Mr Biram are obviously immense.

10 The killing of Mr Biram was a brutal, senseless and callous act. You have shown no remorse. While the absence of remorse cannot be a matter of aggravation, your lack of remorse means that you are not entitled to the benefit to which a remorseful attitude would otherwise entitle you. During the plea hearing, your counsel, in order to give context to your crime, referred to a possible consumption by you of alcohol on the night of Mr Biram's death. While providing context, this fact is, of course, not mitigatory.

11 Additionally, during the plea, your counsel tendered a report from a clinical psychologist, Dr Michael King. Dr King interviewed you in custody on 23 September 2011. He expressed the overall opinion that you were "remarkably normal both in personality, in absence of psychopathology, and in intellect". In such circumstances, your crime is all the more inexplicable. Even though you are relatively young and appear to be doing reasonably well in custody (judging by the completion of the programs and courses to which I have already referred), the evidence does not disclose you to have any particularly good prospects of rehabilitation.

12 As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:

(a) to punish the offender to an extent and in a manner which is just in all the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;

(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and

(e) to protect the community from the offender.[2]

13 It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. As has been said before,[3] the Court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence destroy such life. There must never be any doubt about the commitment of the community, and the Court through which it speaks, to defend the importance of human life with the imposition of substantial penalties where an offender kills another member of the community with murderous intent and without lawful justification or excuse.

14 For your crime, the only sentence that is appropriate is a sentence of imprisonment. Because you are a serious violent offender and a sentence of imprisonment is justified, I am required by s 6D of the Sentencing Act, in determining the length of your sentence, to regard the protection of the community from you as the principal purpose for which the sentence is imposed. It is difficult to determine precisely what continuing risk you pose to the community. Your prior convictions for violence and your conduct on the night in question suggest, notwithstanding the report of Dr King, that you pose a significant continuing risk to the community. In the plea hearing, your counsel asserted that drugs played a very significant part in your teenage years, as did alcohol, and that was perhaps consistent with your prior conviction history. However, it is to be noted that at the time you killed Mr Biram, you were (according to your instructions to your counsel) not taking any illicit drugs, although you were drinking some alcohol.

15 Whilst the Sentencing Act[4] provides that in order to protect the community a sentence longer than that which is proportionate to the gravity of your offence considered in the light of its objective circumstances may be imposed, I do not think that is necessary in this case. That said, I have, as I am bound to, regarded the protection of the community from you as the principal purpose for the sentence I am about to impose. However, even though protection of the community from you is the principal purpose for the sentence I am about to impose, this does not mean that that purpose should overwhelm other relevant sentencing considerations. Denunciation, general deterrence (in the way I have described), specific deterrence (having regard to your criminal history), your relative youth and your prospects of rehabilitation are all matters that must be taken into account in the instinctive synthesis.

16 Taking all the matters to which I have referred into account and having due regard to the principles of parsimony and proportionality, I sentence you to 24 years' imprisonment for the murder of Rowan Biram and I fix a non-parole period of 19 years. I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 673 days in custody, and I direct that this fact be noted in the records of the Court. I also direct that the fact you have been sentenced for the murder of Rowan Biram as a serious violent offender be entered in the records of the Court.

17 Finally, I will make the disposal order sought by the prosecution.

[1] While the current definition of "serious violent offender" in s 6B(2) of the Sentencing Act talks of detention in a "youth justice centre" (cf the definition of "serious violent offender" introduced by s 6 of the Sentencing and Other Acts (Amendment) Act 1997 which talked of detention in a "youth training centre"), the definition has application to the prisoner - what were "youth training centres" having been renamed as "youth justice centres" on 23 April 2007: see further clause 3(d) of Schedule 4 of the Children Youth and Families Act 2005 as originally enacted and clauses 23 and 24(c) of the current version of Schedule 4 Children, Youth and Families Act. In any event, cf s 30, the explanatory memorandum to s 30, s 42 and Schedule item 32.2(d) of the Children, Youth and Families (Consequential and Other Amendments) Act 2006, ss 14(2)(e) and 35(a) of the Interpretation of Legislation Act, Colonial Sugar Refining Company Limited v Irving [1905] AC 369, Esber v The Commonwealth (1991) 174 CLR430 and Secretary to the Department of Justice v Fletcher [2010] VSC 170, [15]-[43] (Bongiorno JA).

[2] Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.

[3] R v Gemmill [2004] VSC 30, [57] (Osborn J).

[4] Section 6D(b).