R v Vucak & Ors [2010] VSC 415

2 The circumstances leading up to the fight at Diggers Rest Recreational Reserve on Sunday 8 February 2009 began the week prior to the attack. During that week you, Vucak, then 18, contacted the deceased's younger brother, Kyle. You did so to arrange a fight, which was apparently in retaliation to an alleged attack committed by Kyle and others on a young male in Sunbury the previous week.

3 Prior to that, you and Kyle Nunan were not known to each other. You, in effect, told Kyle you were 16 years old and wanted to fight him for picking on your friend. You and Kyle agreed to take part in a fist fight at Diggers Rest Skate Park the coming Sunday.

4 On Friday 6 February 2009, Kyle Nunan received a telephone call from an unknown male confirming the location and time of the fight. In the days leading up to that Sunday, Kyle Nunan had told several others about the organised fight, including his brother Nathan Roberts-Nunan, Stephen Thorneycroft and his friends.

5 In the days leading up to Sunday 8 February, you Vucak, contacted several other co-accused in the matter and told them about the fight that had been organised.

6 On the afternoon of Sunday 8 February, you Vucak, began gathering a group to attend the fight, although there had been discussion among young men in and around St Albans during the week. It was put to me on the plea there had been substantial traffic on the internet.

7 Your group met at a house in Acfold Court, St Albans. That was the home of Timothy Lutze, also known as Timothy Cooper. Nathan Smith was living at that address along with another co-offender Garcia, as well as Lutze's mother and Lutze's girlfriend Ms Maurice. Other young men came to the premises, they included you, Mladen Mrnjaus, you, Tomislav Stevanja, Marco Zizic, you Tomislav Panic, Anthony Vodanovic and Nikola Andreevski who is yet to face his trial.

8 At the premises, knives, machetes, baseball bats, tyre levers and tool handles were assembled and laid out on the driveway. The response to the challenge was obviously to go armed. At least some of you have admitted knowledge of the weapons but they must have been obvious to all.

9 Lutze placed a metal baseball bat and machete in the boot of his car and assisted you, Vucak, in preparing two petrol bombs commonly known as Molotov cocktails. The weapons were distributed. Nathan Smith took with him two boning knives.

10 The group set off in three cars. Lutze drove his car and took Smith, JC and Garcia, both of whom are still to be tried, and Ogrizovic who has pleaded guilty but who will be sentenced at a later date. Ferraro drove Anthony Vodanovic, you, Mladen Mrnjaus, and Nikola Andreevski; Darko Jozic took, Marco Zizic, you, Ante Vucak, you, Tomislav Panic and you Tomislav Stevanja. Your group therefore numbered 14 young men, some of whom were friends with one another, some of whom were vague acquaintances and some of whom were complete strangers.

11 The cars drove up the Calder Highway until they reached the BP Service Station at Calder Park. There you, Ante Vucak, arranged to take delivery of a small sword from Branislav Karula. The sword was given to John Garcia to be used in the fight.

12 There is evidence that whilst at the service station, expressions were being used with regard to what was intended at the skate part, such as 'get these guys', 'fuckup these cunts', 'going to fuck them up, chop him, chop him, fuck him'. Just who was saying those things and who heard what was said is not particularly clear.

13 From the time the group left the BP service station however, it was perfectly clear, on any view, that there was a very serious enterprise involving a total of 14 armed young men underway. The group drove to Ingot Road, Diggers Rest, near the Diggers Rest Recreational Reserve which contains the Diggers Rest skate park, arriving there shortly before 6 pm.

14 Lutze got out of his car and in company with you Vucak, got into the Renault being driving by Jozic. You then drove around the Diggers Rest Recreational Reserve and observed the deceased's car parked near the skate park before returning to Ingot Road. The preparations of your group did not pass unobserved by local residents, who saw members of your group armed. The registration numbers of the cars were noted and the police were called.

15 A group of nine started off towards the reserve. The drivers of the vehicles remained behind, as did Vodanovic and Zizic, who remained in Ferraro's vehicle. Their prudence has meant that they have not been charged with any offence. Your group entered the reserve from the car park entrance in Plumpton Road. The petrol bombs were left at the entrance to the car park. The group then walked on, and on various accounts, quickly began to run across the oval.

16 Nathan Roberts-Nunan, who had come with his friend Stephen Thorneycroft to support his younger brother Kyle, had parked his car in the skate park car park. He was sitting in the back seat and Stephen Thorneycroft was in the front seat. Kyle Nunan was standing by the vehicle, talking to two friends. Although there are a number of bystanders, it does not appear that they had been recruited to assist Kyle Nunan. They may have known that the fight was going to take place. At this time it was pretty close to 6 pm on Sunday 8 February. There were a large number of children and youths gathered around and using the skate park, and a large group also at the nearby Diggers Rest Cricket Club.

17 One of your group struck at Kyle Nunan and he was effectively forced or chased away towards the skate park. The deceased, Nathan Roberts-Nunan, got out of his car and was attacked by you, Vucak; you were armed with a machete. At about the same time Smith, armed with two boning knives, stabbed Stephen Thorneycroft in the stomach. The wound inflicted was sufficient to expose his intestines.

18 Nathan Roberts-Nunan tried to defend himself with a club lock, which he reached into the car to get. Your co-accused Ogrizovic then struck him with a baseball bat with sufficient force to break the bat. Smith then stabbed Nathan Roberts-Nunan simultaneously to the left mid-section of his back and the upper part of his right arm. The wound to his back proved to be fatal.

19 Smith and some of you also attacked the vehicle, stabbing tyres, smashing the windscreen, the rear window and other windows of the car. It is that unremitting, senseless and cowardly display of mob violence at its most extreme which constitutes fighting for the fear of the public, the core of the crime affray, to which you have pleaded guilty. This must be one of the worst examples of affray which could be imagined. You all chose to be part of it.

20 Within five minutes your group had come back across the oval and among other things attacked the car of the father of Nathan Roberts-Nunan, who apparently tried to run some of your group down. The group all managed to leave the scene, although initially, there were seven passengers in Lutze's car. Jozic and Ferraro saw blood on at least some of the group. Lutze, after observing blood on Smith, was told by Garcia that the blood had come from somebody he had stabbed, a matter which Smith confirmed.

21 Your group were driven back along the Calder Highway and went to a rural property in Edwards Road, Diggers Rest. The property belonged to Branislav Karula, who had provided a small sword at the BP service station. There was discussion about the fight when you were at the property. Lutze heard others bragging about it and decisions were reached about destroying physical evidence and setting up alibis. Weapons and bloodied clothing were left at the property. Your group remained there for about 40 minutes.

22 Lutze drove his Mitsubishi Magna around the corner and abandoned it, intending to report it stolen. Smith, Lutze, Ogrizovic, Garcia and CJS were collected by Lutze's girlfriend's mother and were dropped off at Ogrizovic's home. Ferraro returned with some of you to Lutze's house where the police were waiting. Jozic was intercepted by the police at the Keilor Park Drive exit on the Calder Highway.

23 Nathan Roberts-Nunan was pronounced dead at the Royal Melbourne Hospital at 8.07 pm on Sunday 8 February 2009. Stephen Thorneycroft underwent surgery for a lacerated liver and his spleen was removed. Such injuries are commonly fatal.

24 Although the individual roles must be spelled out, and I will do that shortly, each of you must have understood that this was a serious fight which would obviously involve the use of weapons. From the time that people began to arrive - and if not from then, at least from the time that the weapons were laid out on the driveway - it must have been clear to all, the comparative seriousness of the intended fight. That of course involved the visibility of the petrol bombs. The fact that those petrol bombs were not used is the one moment of sanity which emerges from this otherwise senseless enterprise.

25 I have received a large amount of victim impact material. I have received a victim impact statement from Mr Phillip Nunan, the father of Nathan Roberts-Nunan, dated 4 March 2010; from Mr Graham Roberts, who is the grandfather of the deceased, dated 2 February 2010; from Kim Nunan-Roberts, aunt of the deceased, dated 5 March 2010; Carmel Nunan, grandmother of Nathan Roberts-Nunan, dated 30 July 2010; from Mr Stephen Thorneycroft, dated 4 March 2010 and updated to 29 July 2010; from Karen Logan, the mother of Stephen Thorneycroft, dated 29 July; from Ms Marjorie Draper, who was the grandmother of Stephen Thorneycroft, dated 29 July 2010 and Mr Lance Thorneycroft, the father of Stephen Thorneycroft, dated 29 July 2010. With necessary variations, I will repeat what I said about the victim impact material when I was sentencing Nathan Smith.

26 Mr Phillip Nunan's statement, on behalf of the whole family, had been read to the court on the plea of Nathan Smith. There can be no possible doubt that the extended family have been devastated by these events. The family's pain is greatly increased by the youth of the victim and the absolute senselessness of the circumstances surrounding his death. The family has had to relocate as a consequence of these matters.

27 The legal proceedings which have attended these matters have been, and will continue to be, protracted and act as a constant reminder to them. Mr Graham Roberts expresses the grief that any grandparent would feel in circumstances such as these. Kim Nunan-Roberts has described the additional effects these events have had on the family. As I have already said, devastation is not too strong a word to use in these circumstances. The further impact is amplified by what has been said by Carmel Nunan in her more recent victim impact statement.

28 In his own victim impact statement, Mr Stephen Thorneycroft said he still suffers from the physical consequences of his wound. His first victim impact statement details he has lost an opportunity for employment, and conveys the psychological and emotional effects upon him have been severe. His daily life is affected by these events and, apart from the physical injuries he has suffered, some of which are permanent, he will carry these matters with him for the rest of his life.

29 His more recent statement simply amplified the effects that these matters have had upon him and the three additional victim impact statements provided in relation to him make it clear what the effects on him have been and the effects on his extended family.

30 As I have said earlier, I can only acknowledge the powerful effect this offending has had upon the victims, and do my duty as best I can in accordance with the law. I cannot bring Nathan Roberts-Nunan back nor can I restore Mr Thorneycroft's health. I only wish that I could.

31 I have no doubt that it is necessary to establish a hierarchy relating to this offending. Nathan Smith has pleaded guilty to murder, intentionally causing serious injury and affray. He was sentenced to a total effective sentence of 22 years with a non parole period of 17 years. The severity of that sentence is the subject of appeal. Jozic, Lutze and Ferraro were each released on a Community-based Order for two years, and required to complete 400 hours of unpaid community work for one count of affray. The distinction which operated in their favour was that they did not leave their respective vehicles and come onto and across the oval. They were taken, at law, to have been part of the affray because of their knowledge of the enterprise generally, but did not join in the continuing enterprise to a sufficient degree to have been party to death or serious injury on the basis of acting in concert or by extended common purpose. The implied agreement to act as a getaway driver was linked directly to the affray.

32 The Crown proceeds in the present case on the basis that the actions of Nathan Smith were the unintended consequence of an agreement to engage in the affray, knowing that weapons were being carried, in circumstances where it was objectively foreseeable that one of your number would expose some person to an appreciable risk of serious injury.

33 It was put on behalf of at least some of you that your legal liability would follow if you were party to an affray which did not go so far as an agreement to engage in such conduct as set out above. By an agreement, at least including an offence, namely assault as part of the affray and that you foresaw the possibility of the infliction of serious injury.

34 The distinction between the two kinds of liability is marginal, both at law and as a matter of moral culpability. I find, perhaps more importantly from the point of view of each of you, that the death of Nathan Roberts Nunan and the serious injury to Stephen Thorneycroft were unintended consequences of your conduct.

35 It is necessary to make further distinctions. Each accused did not play the same part in the enterprise. You, Vucak, were for instance the principal organiser and you struck what was probably the first blow to the upper arm of Nathan Roberts Nunan.

36 The accused Ogrizovic was a significant actor in the early phases of the assault and was armed with a baseball bat which he used to strike Nathan Roberts Nunan. It does not appear that the remaining three of you struck any other person but you, Panic, were involved in damaging the deceased's car. As best as can be ascertained, neither you Panic, nor you, Mrnjaus, used your weapons at all, although as will emerge from the material you were nonetheless armed.

37 The absence of involvement and actual use of weapons is a matter which places you, Stevanja and Mrnjaus, in the less serious category. You, Panic, used your weapon, but you did not use it on any another person - which places you, in a different category again. The weapon was used nonetheless. That sets out the general circumstances.

38 I now move to the roles played by each of you. In relation to you, Ante Vucak, the role played in these events was pivotal. You were arrested outside your house on 10 February 2009. It is an important feature of your conduct that you misrepresented the nature of what was to occur to Kyle Nunan and, to a large degree, to those who you recruited or were responsible for recruiting.

39 It was put on your behalf that Lutze also played an organisational role, which is true in part; he had of course been recruited by you in the first place. When interviewed by the police, the following matters were admitted by you. You admitted contacting the deceased's brother and organising the fight as well as arranging the date, time and location. The reason behind this conduct related to an alleged assault on a 15 year old male in Sunbury.

40 You admitted to recruiting other participants and asking them to bring weapons. The intention was "going to wreck them". You told police how you attended Lutze's home and prepared two Molotov cocktails with him. You knew of the others being armed with weapons such as knives, machetes and baseball bats. You travelled to Diggers Rest in Jozic's vehicle and admitted stopping at the BP service station after contacting a man named Karula and receiving from him a small sword. You admitted conducting a reconnaissance of the fight location with Lutze and Panic, and admitted parking nearby, getting out of the vehicle and walking towards the intended location. You admitted assaulting Nathan Roberts-Nunan with a machete by striking a single blow to the upper arm. You admitted seeing Mr Roberts-Nunan assaulted with a baseball bat strike to the head. You admitted seeing Nathan Smith stab Mr Roberts-Nunan in the back. You admitted to striking the back window of the deceased's vehicle with a machete, and you admitted fleeing the scene and going to the farmhouse occupied by Mr Karula.

41 You described having a machete with a green rope through the handle with you at the time of the attack. That machete was later recovered from Mr Karula's property.

42 Mr Panic, you were a friend of the co-accused Vucak and you were recruited by him. When interviewed by the police you admitted your prior knowledge of the organised fight and that you had been told of it by Vucak. You agreed to participate in the organised fight and said that Vucak asked you to bring a weapon. You admitted you took a steel pole from your home as a weapon. You went to Lutze's address and there you saw other weapons including knives, machetes, baseball bats and petrol bombs. As to the involvement of these weapons you said "OK, fair enough".

43 You travelled in Jozic's vehicle to Diggers Rest and told how you stopped at the service station with Vucak where another person was met. As to the machete, you saw it was about 70 cm long and that it was blunt. You were of the view that it would only bruise or fracture. You saw Nathan Smith carrying knives.

44 You said that you left your weapon in the car, but admitted receiving a baseball bat from Mrnjaus and taking it to the fight. You had the weapon hidden in your pants and produced it at the time of the fight. You saw Vucak strike the deceased with either a machete or a fist. You saw the deceased hit over the head with a baseball bat and admitted to damaging the vehicle which the deceased had been travelling in. You admitted seeing Nathan Smith stab the deceased in the back and you admitted to fleeing the scene and attending the farmhouse at Diggers Rest. As you fled the scene you covered your head.

45 You described your reasons for getting involved as being because Ante Vucak was a family friend and, because somebody's mate got hit, you did not want to back down. You had handled one of the machetes before the fight and you said it was a new one that was solid and that could actually do damage. Upon arrival at the farmhouse you removed weapons from the vehicles and left them there. You knew Lutze was going to dump his car and report it stolen.

46 Tomislav Stevanja, you were also recruited by Ante Vucak. In your interview, you admitted prior knowledge of the organised fight and that you agreed to participate in it. You admitted to attending Tom Panic's home and talking about what weapons to take. You took a wooden tool handle and said Panic took a piece of steel. You went on to describe how you took a train, got off and went to McDonald's for food before going to Lutze's to get involved in the fight. Having attended at Lutze's address, you saw other weapons such as machetes and baseball bats. You said all who were there were armed, and you saw the Molotov cocktails as well.

47 You travelled to Diggers Rest in Jozic's vehicle and admitted stopping at the BP service station. You told how you conducted reconnaissance of the skate park with Vucak and Jozic and said, "This will be fun". You had the weapon up your sleeve and others had bats. Your tool handle was timber and was about 50 to 60 cm long. You admitted seeing the deceased hit with the machete to the shoulder. You further admitted seeing a male with a knife around the deceased's car. You saw others damaging the deceased's vehicle and then you threw your weapon away and fled the scene. The reasons you provided for becoming involved were that you were 'bored', 'adrenalin', 'hormones' and that you 'really did not think it would turn out this bad'. You also attended the farmhouse in Diggers Rest and told how you removed your weapons from the vehicles and left them at the farmhouse. You said that you did not hit anyone during the fight.

48 Mladen Mrnjaus, you had been also recruited by your co-accused Vucak, and you admitted the following matters to the police. You admitted prior knowledge of an organised fight and the taking of weapons. You admitted receiving a text message from Vucak to meet you about the organised fight. You admitted to taking a baseball bat from your own home for the purpose. You were collected by Mr Jozic and driven to Lutze's home. You admitted to meeting at Lutze's home and seeing other weapons present, being knives, baseball bats, machetes, tyre levers, pieces of wood and steel.

49 You travelled in Mr Ferraro's vehicle to Diggers Rest. You admitted to having a baseball bat on your person at the time of the fight. You admitted seeing Nathan Smith approach a male who was leaning on the victim's vehicle. You admitted to seeing blood on the man's clothes. You admitted to seeing others damaging the deceased's vehicle. You admitted you saw the victim being stabbed and being bloody. You admitted to fleeing the scene and attending a farmhouse at Diggers Rest.

50 It was urged upon me on the plea, particularly on behalf of the accused Panic, that there should be total concurrency between all three counts. I decided in the case of Nathan Smith, that accumulation on Count 3, affray, is unnecessary in all the circumstances. It is, however, sufficiently separate and deserving of the description I have previously given it, to warrant being on the presentment and to warrant each of you being convicted of that count and having a sentence imposed for it, although it will be served concurrently.

51 That argument was to varying degrees adopted by counsel for Stevanja and counsel for Mrnjaus. The argument runs that the legal liability for those who did not join directly in the attack on either Mr Nathan Roberts-Nunan or Mr Thorneycroft arose out of their commitment to the enterprise generally and the possibility of the infliction of serious injury. In that sense, it was put, the criminality was, in terms of moral culpability, singular, even though there were two victims.

52 One matter that is certain with respect to each of those who did not strike anyone, is that they knew of the presence of weapons, including knives, in the attack. I regard the proper characterisation of the agreement, or of the possibility within the extended agreement, as including more than one victim. That is readily demonstrated by an example wherein any victim had been injured by the action of an accused other than Nathan Smith. It is true, however, that these events were very close to one another in time and were part of a single criminal enterprise. When regard is paid to those acts which involved causing death and causing serious injury, it is fair to say those events took place in a very short period of time indeed.

53 I have concluded that in relation to this group, it is necessary cumulate between the two major offences, but the principle of totality will require me to cumulate a relatively small amount of the sentence imposed. It should not be regarded as in any way reducing the seriousness of what happened to either of the victims, but is instead designed to attempt to reflect accurately and punish appropriately the action of each individual.

54 In the immediate events which produced such terrible consequences, some individuals were more actively involved, and some deserve greater punishment than others.

55 I now turn to a number of other matters of general importance. The first of which is to note that you have each pleaded guilty. I said on the plea and I will repeat it here, that I regard those pleas as significant. I will indicate subsequently the degree to which I have reduced the sentences as a result. I should also indicate that you, Vucak, made known your intention to plead at a slightly earlier stage than others, and I have taken that into account.

56 In relation to you, Stevanja and you, Mrnjaus, I am obliged to afford you a further reduction in sentence as a direct result of your undertaking before me to give evidence in the trial of Andreevski and others, and I direct that the details of your undertakings be entered in the records of the Court. You should understand in relation to that, that if you do not honour those undertakings, you may be taken before the Court of Appeal and re-sentenced, having regard to the discount that you have received.

57 Another general matter, but one of great importance, is the youth or relative youth of each of you. You, Vucak, Panic and Stevanja are now 19 years of age and you, Mrnjaus are now 21. Three of you were 18 and one of you 20 at the time of the offending. For you, Vucak and Panic, you had only turned 18 in December 2009 and you Stevanja, in August of that year. I do however, regard each of you as a young offender for the purposes of sentencing.

58 I accept that each of you is remorseful, that you genuinely regret what happened on this day and I accept that your prospects of rehabilitation are good. You all have the strong support of your families, although, in relation to you, Mrnjaus, there had been some difficulty, but that seems to be on the improve.

59 In ordinary circumstances, I would have been obliged to regard your rehabilitation as the most important feature of your sentencing. Such circumstances are somewhat altered when dealing with offences as serious as this. Although your prospects of rehabilitation are an important matter in this sentence, and I have had significant regard to that, it is not to be regarded as the most significant feature of sentencing. I should indicate that in relation to each of you, I regard your prospects of rehabilitation as sufficient to warrant the imposition in each case of a lower than usual non parole period, and I have done so.

60 The other principles of sentencing play their part too. Just punishment, as well as both general and specific deterrence have to be given weight. I do not regard the question as specific deterrence as being very important in this case because I regard you all as extremely unlikely to offend in this way again. But young men in positions similar to yours must understand the desperately severe consequences of engaging in conduct which involves, in particular, the use of weapons. That is the really abhorrent feature of this case, that a group of 14 young men could set off armed as the aggressors against any other group no matter what you believed that group would hold. It is senseless. It has led to the death of one young man, the very serious injury of another, the destruction of your lives to a large degree and has caused great difficulty for those around you.

61 Ante Vucak, you are now 19 years of age and have no prior convictions. You were 18 and about seven weeks at the time of this incident. You were born in Croatia and came to Australia when you were a baby. Your father Marco is aged 48, and with your mother and sister you all came to Australia in order to escape the war and attendant social crisis in Croatia.

62 Your father works full-time as a fitter and turner, and is by reputation an industrious and skilled tradesmen. Your mother is 42 years of age and upon arrival in Australia worked as a cleaner. She currently works full-time as a food and domestic services supervisor at the Sunshine Hospital. Together they saved and purchased the family home in Cairnlea which is where you were living at the time of these events in early February 2009. Your relationship with your family and your sister were described as excellent. They visit you regularly at Port Philip and provide encouragement and assistance which bodes well for your rehabilitation. Your sister gave evidence on your behalf, and it is plain that she and the rest of the family care a great deal about you and will give you such support as they can.

63 On the plea attention was drawn to incidents in your life leading up to these events. In summary they were the suicide of a close friend and an unexpected knife attack which occurred at a railway station. Another friend was injured during the knife attack, however you escaped. Counsel on your behalf also highlighted in both your places of employment you had been subject to bullying which was not violent but persistent and which had an adverse effect upon you.

64 Some time before this incident your parents and sister were very concerned about your behaviour, they felt you were moody and prone to fits of anger and subsequently took you to a GP. You were tested to see whether you had been taking drugs and found not to have done so. Your parents were ultimately advised that such behaviour was easily enough put down to your age, and told it was part of the process of growing up. Your parents, however, were concerned enough to consult another doctor who ultimately suggested consulting a psychologist. You elected not to do so.

65 You attended St Albans North Primary School. By year nine you wanted to enter a similar trade to your father, you enjoyed engineering. You were active in soccer and played for St Albans Soccer Club. You have been captain and are well regarded. And you have involved yourself in Croatian cultural activities.

66 A report from Dr Lester Walton, a very experienced forensic psychiatrist, was tendered on your behalf on the plea. Dr Walton said:

"In my opinion Ante Vucak is in the grips of a chronic depressive disorder, that was likely triggered by the suicide of his friend and has been aggravated by multiple incidents thereafter where Mr Vucak has been bullied and especially that he, as he perceives it, failed to support a friend who was injured in a knife attack. His family clearly recognised that Mr Vucak was in a state of some emotional turmoil and sought medical assistance for him but unfortunately referral to a mental health professional was not effected prior to this violent incident. And, further, the tragedy which constitutes the offending in which Mr Vucak was directly involved is yet another example of a group of young man likely driven by a mixture of fear and bravado, armed with dangerous weapons, and the outcome has been death and serious injury.

In such volatile situations it is probably close to random as to who was finally identified as a perpetrator and as a victim. There is no escaping the fact that Mr Vucak was the principal organiser of the gathering which resulted I the mayhem, however he does seem to have acted in a misguided fashion, essentially on behalf of a boy who had been attacked - as Mr Vucak perceived it - quite unfairly, and he sought to rectify the wrong by organising a fight. While he ought not to have done so, I doubt that he would have considered that such tragic consequences might have occurred.

Mr Vucak certainly can be safely accepted from a psychiatric perspective, both in the sense that he is fit to plead and also that he has no formal mental state defence available to him. That said, it is my opinion that his adolescent depressive disorder where not only lower mood but recurring anger were features, a common enough combination, has contributed to Mr Vucak's ill-considered misconduct by way of eroding his capacity for exercising proper social judgment to some extent.

To suggest that the incident had a salutary effect on Mr Vucak is an understatement. Indeed, he expressed straightforward regret and sorrow. In a sense, his expression of remorse is continuing to unfold as he progressively matures psychologically, partly simply because of the passage of time, but that process has likely be hastened by his coming to terms with the consequence of his and others' misconduct, both for the victims and their families. He expresses concern about his own family, but he is refreshingly free from self-pity."

"I fully appreciate that there are some aspects pf sentencing which must be considered which lay outside the psychological province. I simply urge that what inevitably will be a lengthy sentence may not be of crushing proportions, as ultimately it is in the community's best interest that Mr Vucak emerge as psychologically intact as practicable despite some risk of ill-informed observers incorrectly perceiving undue leniency."

67 A report prepared by Ms Wendy Northey was also tendered on your behalf, and she observed:

"Mr Vucak is relatively young to be facing adult court and imprisonment within adult facilities. He continues to grow and develop physically, emotionally and cognitively. He is yet to complete the development tasks inherent in adolescence, and it is hoped that the resources of the criminal justice system will assist in this ongoing process. Given that consolidation of personality occurs to a great extent between the ages of 18 and 23 years, it is hoped that prosocial influences will dominate his life throughout that period of time. Mr Vucak is currently motivated to rehabilitate himself and emerge from custody a better person. He already feels as if he's spent four or five years in custody over the past 18 months. This is an indication of how loss of liberty can be perceived at this young age. It is hoped that a custodial sentence will not crush his current high level of motivation to improve and to identify with antisocial peer influences within the custodial environment. If I can be of any further assistance in this matter, please do not hesitate to contact me."

68 I should say this at the outset, that I am obliged to impose a relatively severe sentence on you consistent with your offending. I do not intend it to be a crushing sentence, but it will be a severe one. During the plea, it was urged on me that your psychiatric condition was such that it should act as a matter in mitigation, at least to some extent. As outlined above, you have been diagnosed by Dr Walton as suffering from a chronic depressive disorder and that diagnosis was largely confirmed in the work done by Ms Northey. That condition was, in a general sense, recognised by your family absent any formal diagnosis. Your family who tried to get you appropriate support, which had not been achieved at the time of these events.

69 The law has set out the circumstances in which pre-existing psychiatric or psychological conditions will be particularly relevant to sentencing. That was done in detail in R v Verdins.[1] I am satisfied in this case that your condition is not such as to merit separate consideration of those principles and Dr Walton did not suggest that the Verdins principles should be applied in your case. That, however, is not the end of the matter. I do have regard to your condition when sentencing you, because it is part of the description of you.

70 It may explain to some degree why you responded to the attack on the 15 year old in the way that you did, but it does not explain why you escalated the events to the extent of recruiting others and asking them to come armed. I am afraid that conduct puts you in a more serious position than all other offenders but Smith. I am satisfied that you do regret both what happened and also regret involving your friends in the way that you have.

71 Tomislav Panic, you are 19 years of age. You are the youngest of four siblings, having two elder brothers and an elder sister. Your father died when you were only four years old after battling pancreatic disease and liver cancer. He was 45 years old. You live with your mother in the family home at Sydenham, caring for her following hip replacements in 2004 and 2005 and transporting her to medical appointments. You have been in a relationship with your girlfriend, Katica, for two years. Your family network is both cohesive and supportive.

72 You attended primary school in Sydenham before going on to Secondary College, where you completed Year 11. Your educational history is unremarkable, but by all accounts, you were well liked by both students and teachers. Since completing school, you have maintained consistent employment in both residential and commercial construction. Although you initially undertook your apprenticeship in cabinet making, after completing two and a half years, you left that trade for carpentry and have been employed as a full-time leading hand carpenter up until you were remanded in custody on the completion of your plea. During your consultation with forensic psychologist, Mr Ball, you provided this explanation:

"What has gotten me into trouble and caused my offences is my friends. This is completely out of my character and I would never have done anything like this. I've always been there for my friends wherever they need me, no matter what, so when my family friend call me and said that five 21 year olds bashed his little cousin and hospitalised him for his bus money and asked me if I could help him, I said, yes. But I never thought that this would happen and I knew this would have happened, I wouldn't have gone. I wouldn't even have cross my mind to have the slightest thought of going. When I heard that there was going to be weapons, I thought that was only for self defence. When my friends said there was going to be 40 people. I was against taking weapons. You always see the news about stabbings and attacks and I cringe when I hear about them. When all my mates got tooled up and made me take something, I saw they had bats and knives. I was shocked. I didn't know what to do. I thought if I said I was leaving, they would attack me, especially seeing people I have never seen holding machetes and knives, so I took a 20 centimetre little pole that I kept in my pocket for the whole time and never took it out at any time. When we got to the confrontation, I was the first there because we all sprinted and I was the fastest. I hesitated and just stood there and then I saw the guy get attacked and stabbed and I freaked out. I jumped in to one of the cars and screamed at the driver to get out of there. I was hyperventilating and couldn't catch my breath, how fast I sprinted. I was scared like I've never been. Those images will be in my head for the rest of my life and I will do anything to have them erased.

At the time of this incident, Mr Panic was a young and immature man. Mr Panic had demonstrated in a clinical interview a greater level of maturity since this incident. He derives from a stable and well-resourced background and is a young man who presents as having acted out of loyalty to a cultural and family friend. He amplified he was drawn in my misplaced loyalty and fear of violent reprisals if he attempted to leave. He repeatedly remarked on his own personal anguish over his involvement and how quickly the situation escalated out of all control."

73 I should say I do not accept that you had no involvement in the incident and in fact, by your own admission, were involved in damaging the car. I do not accept that you were motivated by any likelihood of damage being done to you by any member of the group with which you were associated, but you were a lesser player. Nonetheless, your commitment to the enterprise was clear. On your own admission, you were at the front of the group, you did not strike either of the victims or anyone else, for that matter, but you did strike and damage the car. You are remorseful, you have good prospects of rehabilitation, but the offences are serious and you understood the potential consequences.

74 Tomislav Stevanja, you are also 19 years of age. You live in Sunbury in the family home where you have been for the last five years. Your father has a small business laying bluestone and is currently without a licence and reliant upon you to drive him to and from job sites. Your mother performs home duties and you are very close to her. You are the eldest of five children, having two younger brothers and two younger sisters. Your family speaks Croatian at home.

75 You attended primary school at St Albans North until the end of Grade 5, whereupon your family moved to Sunbury. You completed your education at Sunbury Downs Secondary College, staying to the end of Year 11 in 2006. Upon leaving school, you took up working with your father and have continued in the job for three and a half years. You are an avid soccer follower. You, Mr Panic and Mr Vucak met through playing soccer. Of all of the people involved in this offending, Mr Mrnjaus is your closest friend. The Mrnjaus' are family friends and your families have been seeing each other since you were about nine.

76 Mr Joblin, a very experienced forensic psychologist, prepared a report about you. And he said:

"In my opinion Mr Stevanja's participation in these offences was in the main based on peer interaction and social factors rather than any profound psychological disturbance which is diagnosable. There is no doubt that Mr Stevanja has a very strong and positive attitude to his group of friends. There is further no doubt that he considers this as an in group and that is any of that group are insulted or abused that becomes tantamount to an abuse towards him.

In this case he believes that he should support his friend Mr Vucak in relation to the difficulties he had with the brother of the deceased. It is then interesting to know that the alternatives he had to accompanying the others to Diggers Rest. He could have refused to go or even informed the police that a confrontation had been arranged.

Mr Stevanja reported that he was now aware that he should have notified the police but indicated it would have been inconceivable for him at that time to contradict the prevailing mores and values of his group of friends. That would have resulted in a serious loss of face and perhaps expulsion from his group of friends."

"Given that he has a strong conscious, given the offences do not represent symptoms of any psychological abnormality and given the issues of remorse and contrition I felt that at the time of the interview with him that the prognosis should be reasonable good. My concern as with most cases involves the impact of a lengthy prison sentence."

78 Mr Stevanja, you were also remorseful and I do regard you as having good prospects of rehabilitation. You have the additional benefit of having made an undertaking to give evidence. And in particular it should be noted that in relation to your part in the offending you did not use the weapon at all.

79 Mr Mrnjaus, you are currently 21 years of age. You came to Australia in the company of your parents and sister when you were about four. Your father was a tiler who works as a supervisor in the construction industry. Up until the time of the offending you described your relationship with your father as good. Presently it would seem that the relationship is strained and the period leading up the plea you were no longer residing in the family home. Typically, however, you visit your mother and your two siblings, your sister Anna and your brother Joseph on a weekly basis when your father is at work. Your mother is employed as a domestic at the Sunshine Hospital and you maintain a good relationship with her. I was encouraged on the plea to think that your relationship with your father has improved somewhat. And I suspect that ought to be seen really as a matter of disappointment for those who have invested a great deal in your future.

80 You attended St Albans Heights Primary School through to grade six and then St Albans Secondary College through to completion of Year 11. You transferred to the Catholic Regional College in Sydenham for Year 12. For the first 12 months upon leaving school you worked in a casual clerical position before being offered a permanent position by your employer. Ultimately, as a result of a police check, you were unable to maintain that employment due to the current charges. It must be said that aside from a prior conviction for unrelated matters some time ago your personal, medical, social and family background are otherwise unremarkable.

81 Mr Jeffrey Cummins, another very experienced forensic psychologist who examined you, said this:

"In my opinion a degree of naivety, immaturity and peer group pressure and a sense of misguided loyalty were key factors which motivated this offending behaviour. In my opinion he does not present as having a general anger management problems or as having specific anger management problems. In fact he stated he did not know any of the victims of this offending. On the basis of his comments at interview it would appear that he was adversely influenced by the co-offender Vucak, although he stated at the interview he has taken full responsibility for his offending behaviour. In my opinion he displayed an unusually mature attitude for someone his age, regarding the inevitability of incarceration. In my opinion it was immaturity, naivety, a misguided sense of loyalty which compromised his ability to apply consequential thinking to his involvement in this incident of offending. In my opinion he is now well able to apply consequential thinking and in my opinion he has no difficulty in distinguishing right from wrong."

82 I do not see any reason why I should distinguish you from Mr Stevanja. Many of the issues are the same, and you also have agreed to give evidence on behalf of the Crown.

83 You among the group are the one who has a prior conviction. In July 2008 you were found guilty by a court of charges of theft, attempted theft, dealing with property suspected of being the proceeds of crime and discharging a missile to cause an injury or place another in danger. I am told that that related to the stealing of flares. You were placed as a result of that on a good behaviour bond and the only matter of note about it is that you were on that bond at the time that you were involved in this offending but I accept that it is not sufficient in all the circumstances to distinguish you in that regard or that regard alone from your other co-accused and from Mr Stevanja in particular.

84 It should be noted that in relation to each of the accused men I received a number of written testimonials. They indicate for each of you that you are highly regarded and your families are also highly regarded. It is all material which speaks well for what might happen in the future.

86 For the crime of manslaughter, you are sentenced to be imprisoned for six years and six months.

87 For the crime of causing serious injury recklessly, you are sentenced to be imprisoned for three years.

88 On the count of affray, you are sentenced to be imprisoned for 18 months.

89 I direct that one year of the sentence on Count 2 be served cumulatively upon the sentence on Count 1 and I direct that the sentence on Count 3 be served concurrently. That is a total effective sentence of seven years and six months. I fix a non-parole period of four years and nine months. I state that, had it not been for the plea of guilty, I would have imposed a term of imprisonment of ten years with a non-parole period of eight years. I declare that a period of pre-sentence detention of 516 days be reckoned as having been served under this sentence, and I direct that the statement and declaration and its details be entered in the records of the Court. I have separately ordered pursuant to s 464ZF(B)(f) of the Crimes Act the retention of a DNA sample. You can sit down again, please.

90 Tomislav Panic, on Count 1 of manslaughter you are sentenced to be imprisoned for four years, six months.

91 On the count of causing serious injury recklessly, you are to be imprisoned for a period of two years.

92 On the count of affray, you are sentenced to be imprisoned for one year.

93 I direct that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence of Count 1. That is a total effective sentence of five years. I fix a non-parole period of two years, nine months before you will be eligible for parole. I state that but for the plea of guilty the court would have imposed a term of imprisonment of seven years with a non-parole period of five years. I declare that a period of pre-sentence detention of 31 days be reckoned as having been served under this sentence and I direct that the statement and declaration and their details be entered into the records of the Court and an order has already been made in relation to the retention of the DNA sample. You may sit down, please.

94 Mr Stevanja, on the count of manslaughter you are sentenced to be imprisoned for three years.

95 On the count of causing serious injury recklessly, you are sentenced to be imprisoned for 18 months.

96 On the count of affray you are sentenced to be imprisoned for nine months.

97 I direct that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence of Count 1, that is, a total effective sentence of three years, six months. I fix a non-parole period of 18 months before you will be eligible for parole. I state that but for the plea of guilty the court would have imposed a term of imprisonment of five years and six months with a non-parole period of four years. I declare that a period of pre-sentence detention of 31 days to be reckoned as already having been served under this sentence. I direct that the statement and declaration and their details be entered into the records of the court. You can sit down, please.

98 Mr Mrnjaus, on Count 1, you are sentenced to be in prison for three years.

99 On Count 2, causing serious injury recklessly, you are sentenced to be in prison for 18 months.

100 On Count 3, affray, you are sentenced to be in prison for nine months.

101 I direct that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1. That is a total effective sentence of three years and six months and I fix a non parole period of 18 months before you are eligible for parole. I state that, but for the plea of guilty, the Court would have imposed a term of imprisonment of five years and six months with a non parole period of four years. I declare that a period of pre-sentence detention, being 31 days, be reckoned as having been served under this sentence, and I direct that the declaration and statement and their details be entered in the records of the Court, and I note than an order has already been made.

[1] [2007] VSCA 102; (2007) 16 VR 269.