The Queen v Levy [2018] VSC 567

2 Mr Jonuzi was 36 years old at the time of his death. He was the only son of Qemal and Nevrije Jonuzi and had three sisters named Lindita, Naime and Afradita. He had worked principally as a bricklayer during his working life. After the end of an eight year relationship with Andrew Ross, Mr Jonuzi returned to live with his parents in Tarneit in June 2017. He confided in his sister Naime that he had issues with drug use. She took him to seek medical help.

3 You and a man named Ryan Smart had resided at 14 Alexander Street, Brighton East since 2011. You and Smart had rented the premises from a man named Bryce Gaton, a friend of your father, and you were in charge of receiving rent from the other tenants and then paying the rent due to Mr Gaton. As of the day of Mr Jonuzi's death, rent was in arrears by $604. Gaton had served a notice to quit on you and Smart due to unpaid rent and ongoing breaches of the rental agreement.

4 A third person named Jason Colton ('Colton') had resided at the premises for some months leading up to 25 October 2017. He lived in the garage at the property.

5 You and Smart occupied separate bedrooms in the house. A third bedroom inside the house was placed by you on Airbnb. In October 2017, Mr Jonuzi moved out of his parents' home and commenced employment at a restaurant. On 11 October 2017 he confided in a friend that he was not going very well, was sleeping in his car, and needed to find accommodation. The friend helped him to find a place to stay through Airbnb. A booking was made for Mr Jonuzi to stay at 14 Alexander Street, Brighton East for the period 15 to 17 October 2017 for a total cost of $102. On 15 October 2017, Mr Jonuzi moved into the spare bedroom in your house. He had paid for three days' accommodation in advance.

6 When the three days of the Airbnb booking had passed, Mr Jonuzi arranged with you to stay for another week at the address. He told you that he would pay for the accommodation when his salary came in. You agreed with him upon the payment of $210 for the week.

7 In the ensuing week, Mr Jonuzi was unable to pay the agreed rent, despite repeated requests from you. It seems that you, Smart, and for reasons that are not clear on the material, Colton, became quite preoccupied with the failure of Mr Jonuzi to pay the rent.

8 On Tuesday 24 October 2017, you spoke to Colton while you were at work. He expressed concern that Mr Jonuzi was going to 'do a runner' without paying the rent and that he may steal property from you. This caused you to contact Smart who confirmed Mr Jonuzi's room was still full of his belongings. I am not aware of any evidence which would have justified the concern expressed to you by Colton about Mr Jonuzi doing a runner.

9 On Wednesday 25 October 2017, having apparently found out that Mr Jonuzi had no money in his bank account, you requested that he vacate the premises.

10 At 5.15 pm, you and Colton left the address in your vehicle to purchase some cannabis. You returned at 5.45 pm. Colton went on foot to a bar in Bay Street, Brighton. You smoked cannabis in your bedroom for the next two hours, repeating your requests to Mr Jonuzi to pack up his room, vacate the premises and pay the rent which was due.

11 At 7.05 pm, you received a text message from Colton regarding the outstanding rent. It read, 'All sorted?' You replied to Colton, 'He's getting somewhere...But stalling.'

12 By 7.38 pm, Colton was back in the garage of the premises, having returned from the bar. Smart returned to the premises at 7.45 pm from a trip to get some groceries. He went to his room and played video games.

13 Eventually, Mr Jonuzi packed his belongings into his utility and asked you to check the state of his room. You found the room to have been nicely cleaned up and vacuumed, but noticed Mr Jonuzi had not left his house keys. You and Mr Jonuzi searched for the keys for a time before Mr Jonuzi divulged the fact that he had been arrested earlier by the police and the keys were in the possession of the police.

14 During the search for the keys, Mr Jonuzi offered to telephone his boss to find out when he would be paid. You offered him the use of your phone and went inside, expecting Mr Jonuzi would follow. Instead, Mr Jonuzi remained sitting in his vehicle for some time, before returning inside with a bottle of wine shortly after 8.00 pm. He poured himself a glass of wine and offered you one, which you declined. You were frustrated at his return inside, but said nothing, continuing to smoke cannabis as you had been doing for a time. Mr Jonuzi sat next to you on the couch in the lounge room. Colton then came into the house and stood in the lounge room. At this time, Smart was in his bedroom.

15 Colton asked you if Mr Jonuzi had paid the rent. You told him he had not. Colton then confronted Mr Jonuzi aggressively, screaming and swearing at him. He then lunged at Mr Jonuzi and grabbed him by his collar and threw him up against the wall of the lounge room. He then began to choke Mr Jonuzi by placing his forearm against his neck. He told Mr Jonuzi that he had to find the money to pay you.

16 Colton then spun Mr Jonuzi back around to the couch as his victim tried to wriggle out of his hold. He almost got away, and that was when you became involved. You assisted Colton in his attack by helping him to restrain Mr Jonuzi, whom Colton still had in a choke hold. At about the same time as this, on the account you gave in your statement, Smart ran into the lounge room and became involved in the attack. You continued to hold on to Mr Jonuzi while Colton punched him 'really hard with a clenched fist' a number of times.

17 You were not sure whether Smart punched Mr Jonuzi or not.

18 During the course of the above attack, furniture was disturbed and the blood of Mr Jonuzi ended up in a number of locations. You described the scene as a chaotic and frantic one. During the attack, Colton kept going on about the rent. Mr Jonuzi repeatedly asked to be left alone.

19 Mr Jonuzi lost consciousness from the blows inflicted upon him. You then said to the others that you should all take Mr Jonuzi outside. You and Smart then carried the unconscious Mr Jonuzi outside into the front yard while Colton watched on. You deposited him on the front lawn. Colton then came up and dragged Mr Jonuzi's body around a tree and towards the street.

20 On your account, Smart then applied a 'figure four leg lock' to Mr Jonuzi to hold him down. Mr Jonuzi by this time was wriggling, screaming and crying, asking to be left alone. Colton punched and kicked him a number of times to the face.

21 At one point during the continuing assault, you came down hard and dropped your left elbow onto the chest of Mr Jonuzi. He was lying on his back at that time. There must have been substantial force to this action by you. In your statement, you attributed the injury you sustained to your ribs during the event to this action.

22 After you had assaulted Mr Jonuzi in this violent fashion, Colton rolled him over onto his front. He then placed his knee onto the back of Mr Jonuzi and his arm around the throat of Mr Jonuzi. Mr Jonuzi was struggling to talk by this time, his voice being quite raspy as he sceamed out, 'Let me go!'

23 While Mr Jonuzi pleaded to be released, Colton and Smart demanded the money that was owed. Mr Jonuzi said he would get the money. Colton asked how he was going to get the money. Mr Jonuzi asked you to use your phone to check his bank balance. You went inside and obtained your phone and brought it outside again and placed it in front of Mr Jonuzi. At 8.13 pm, Colton loosened his hold around the neck of Mr Jonuzi, and he used your phone to check the balance of his account. There was only $6 in the account. Mr Jonuzi, who was crying, apologised and said he did not have any money. He tried to wriggle away.

24 At this point, Colton went over to the vehicle of Mr Jonuzi and returned shortly afterwards with a shifter in his hand obtained from the tray of the utility. He passed the shifter to you and told you to hit Mr Jonuzi in the head with the shifter. By this time, you could see silhouettes of people in the street. You realised you were being watched. You came to your senses, went inside and made a call to the police. This call was made at 8.20 pm. At the time you left the front yard and went inside, Mr Jonuzi was conscious, crying and talking.

25 Inside, you dropped the shifter on the couch where it was found later by the police.

26 Outside on the front lawn, Smart maintained the leg lock on Mr Jonuzi after you had left. Colton inserted a brown calligraphy case from the vehicle of Mr Jonuzi into his anus. You are not responsible for that action.

27 In your conversation with the policeman to whom you spoke, you falsely claimed that you were restraining a male who was possibly alcohol and/or drug affected and had been violent towards you.[1]

28 Knowing the police were on the way, you tidied up the lounge room, picking up a bong and some other items which you took outside and placed in your car. On the way to your car, you saw Smart still had Mr Jonuzi in a leg lock, and Colton was still close at hand near his head. You told police in your statement that you drove your car around the corner and then ran back to the house. By this time, the police were close by.

29 Colton went into his garage and removed his bloody hooded top.

30 At 8.30pm, police arrived at the scene. They observed you and your two co-offenders moving away from Mr Jonuzi, who was lying motionless on the ground. Colton was observed moving away from Mr Jonuzi's head area, you were seen moving away from Mr Jonuzi's right side, and Smart was seen moving away from the feet of Mr Jonuzi.

31 Mr Jonuzi was lying face down on the grass and was non-responsive. He had one leg out of his pants and his buttocks exposed. The brown calligraphy case was protruding from his exposed anus.

32 Police immediately requested an ambulance and commenced CPR upon Mr Jonuzi, who was unconscious and not breathing and had apparent impact injuries to his face and head. You and your two co-offenders were placed under arrest.

33 At 8.38 pm, ambulance officers arrived and commenced their own efforts to save Mr Jonuzi, who showed no signs of life. He was declared to be deceased at 9.13 pm.

34 The Major Crime Scene Unit attended and examined the crime scene on 25 October 2017. Outside the address, police located clothing and property belonging to Mr Jonuzi. A bloodstained grey hoodie was located inside the garage. Bloodstaining was located at the entry area to the house and on the sofa and floor in the lounge room. A large shifting spanner belonging to Mr Jonuzi was located in the lounge room.

35 You were initially interviewed by the police commencing at 9.52 pm on 25 October 2017.[2] At the time of this interview you had not been informed of the death of Mr Jonuzi, although I am not sure anything turns on this. The reality is that you knew of the serious assault which had been carried out by you and your co-offenders on Mr Jonuzi and chose not tell the truth about it to the police.

36 In the interview, you told the police that you had asked Mr Jonuzi to leave as he hadn't paid his rent. You said, 'Then [Mr Jonuzi] came to attack me and my housemates jumped in and stopped him...so he's gone to attack me and we've - have attacked him back, they've gone to protect to (sic) me and I - we've all attacked him. He started bleeding so we took him out the front, and I've come inside to call the police.' You said that you saw Mr Jonuzi get up and go to attack you out of the corner of your eye, but before this could occur, Smart had grabbed Mr Jonuzi from behind and put him in a choke hold. You went on to say that Mr Jonuzi had been in possession of a large shifter. Colton had then come in and it turned into what you described as an 'all-out melee.' You and the others then 'shepherded' Mr Jonuzi out the front. You went inside to call the Caulfield Police and while you were doing that, Smart had Mr Jonuzi in a figure four leg lock and you thought Colton was in the garage.

37 As is perfectly obvious, this account initially given by you was completely false.

38 The second interview with the police commenced at 4.30 pm on 26 October 2017.[3] By now you were well aware of the death of Mr Jonuzi and knew you were being interviewed in respect of his murder.

39 At an early time in this second interview, you admitted that you had not told the truth in the first interview. You proceeded to give an account that was in most respects consistent with the account which was later to appear in your statement. I will not detail that account now. I have relied on your overall truthful account in your statement in setting out the circumstances of your offending in this sentence.

40 As indicated above, whilst you gave a dishonest account to police in your first interview on the day of your arrest, by the next day, you had changed your position, and were now prepared to disclose the truth about this event. In the second interview you made admissions implicating yourself and your two co-offenders.

41 In the lead-up to the committal hearing, which commenced on 22 May 2018, there were some discussions between your legal representatives and the prosecution aimed at resolving your case. At that time, of course, you faced a charge of murder, but were unwilling to plead guilty to that, which is understandable. Even before the committal, as early as 4 May 2018, as I was told by Ms Tittensor on your behalf during the plea, you had made, although not signed and acknowledged, a statement in the same terms as that which was later made by you. You did take part in the committal hearing, and were committed for trial on the charge of murder. After that time, as a result of further discussions between your legal representatives and the Crown, the Crown accepted a plea of guilty from you to manslaughter in satisfaction of this matter. You pleaded guilty to this charge in this Court on 6 August 2018. You signed and acknowledged the statement on 15 August 2018.

42 Before me, you gave evidence that the statement was true and correct, and gave an undertaking to give evidence in accordance with that statement in assisting authorities in the prosecution of anyone else in relation to this matter.

43 On 26 October 2017 an autopsy was carried out on the body of Ramis Jonuzi by Professor Stephen Cordner. Blood was smeared over the central areas of the face and the face was covered with a light layer of dirt and fragments of vegetation. There were signs of compression of the neck with skin bruising, bruising visible at different layers in the neck, multiple laryngeal fractures and conjunctival petechiae and haemorrhage.

44 According to Professor Cordner the signs on and in the neck included an abrasion, bruises at different levels externally and internally in the neck and four fractures, with haemorrhage, of the laryngeal skeleton. Microscopically there was also damage to the cricoid cartilage. The constellation of these findings, including the conjunctival petechial haemorrhages, was typical of compression of the neck.

45 In addition there were numerous bruises, abrasions and lacerations to the face and scalp and a broken nose, as well as signs of injury to the body. Blood was present in the airways including the small airways indicating that it had been aspirated. The blood most likely originated from the broken nose. It was the view of the pathologist that the presence of aspirated blood in the lungs would most likely have aggravated the effects of the compression of the neck.

46 In respect of the level of force in the attack, Professor Cordner indicated that the nasal fractures themselves were indicative of a 'moderately severe to severe application of force.'[4] The other facial injuries pointed to significant force. The number of individual facial injuries was suggestive of 'a longer rather than a shorter assault to this person.'[5]

47 The overall findings led Professor Cordner to the view that Mr Jonuzi had been subjected to a sustained assault involving mainly the head and neck. A viewing of the autopsy photographs would support that conclusion.

48 The cause of death was determined to be 'COMPRESSION OF THE NECK AND BLUNT FORCE TRAUMA TO THE HEAD.'

49 Insofar as I have detailed the circumstances surrounding your offending, much of it comes from the account you provided to police in your second interview and in your statement. It was common ground at both ends of the Bar table during your plea that I am entitled to have full regard to the contents of that statement in arriving at the sentencing facts. I am also entitled to have regard to the depositions in deriving assistance as to such matters as the duration and nature of the attack you and the others carried about upon Mr Jonuzi.

50 I should make it clear that as a result, the facts upon which I will sentence you are significantly different and more detailed than those upon which I will later pass sentence on Smart. In his case, I was not permitted to have any resort to your statement in ascertaining the facts. I did not do so. In your case, there is no such limitation. So the detailed, and in many respects, quite damning description you gave in that statement as to the circumstances of the offending, and your role in it, is material which I fully take into account.

51 As indicated already, the cause of death of Mr Jonuzi was found by Professor Cordner to be compression of the neck and blunt force trauma to the head. Every indication is that this attack upon Mr Jonuzi was a protracted one comprising multiple applications of blunt force to his face and head as well as significant compressive force to the neck. You were present at the commencement of this attack initiated by Colton, and from an early time were actively involved in the attack. You were involved in moving the unconscious Mr Jonuzi from inside to outside. You then assisted Colton in his continuing brutal attack upon Mr Jonuzi on the front lawn. Shortly before 8.20 pm, you left that immediate scene to call the police. By your plea of guilty to manslaughter, you have acknowledged that you were complicit, which means involved in the criminal sense, in the acts, inflicted by whomever, which caused the death of Mr Jonuzi, including the compression of the neck and multiple blows and kicks to his head. That means that you remained complicit in what took place, by way of physical violence towards Mr Jonuzi, even after your temporary departure, not extending to what was done with the calligraphy case.

52 I point out that although there is no evidence you actually inflicted any of those numerous punches and kicks to the head or applied any of the force to the neck which caused Mr Jonuzi's death, your involvement in this crime was far from being as a mere observer. You played an active part in the continuing, brutal attack upon Mr Jonuzi, who at every stage was outnumbered and helpless. After the attack upon him had commenced inside at a time shortly after 8.00 pm, and you had seen the vicious way in which Colton dealt with him, you stepped in to assist Colton as he choked and otherwise assaulted Mr Jonuzi. Knowing Mr Jonuzi was injured and unconscious, you carried him outside with your accomplices and dumped him unceremoniously on the lawn to be further assaulted by you and Colton. You saw at close hand the ferocity of the attack by Colton upon this helpless man, but still remained involved. In spite of hearing the cries and pleas of Mr Jonuzi for mercy, you participated in the continuing attack upon him. While Mr Jonuzi was still restrained, you had him use your phone to check his bank balance, which was an action by you in pursuit of your aim of being paid the rental arrears. Only very late in the piece when you realised the activities of the three of you had been observed by others did you go inside and telephone the police. Throughout the entirety of this attack, you did nothing to render any assistance to Mr Jonuzi, and nothing to have your co-offenders desist from their attack.

53 For some of this period, commencing at about 8.15 pm, although I note that the period might have commenced somewhat earlier than this, a nearby neighbour, Vikki Petraitis, heard the screams of Mr Jonuzi as you and the others attacked him.[6] His screams sounded to her to be of someone who was in a lot of pain. The screams continued for at least ten minutes. She also heard at least one other male voice, yelling aggressively.

54 The description I have now given of this attack upon Mr Jonuzi and your involvement in it illustrates very clearly that your crime of manslaughter is a serious one.

55 Your personal background was set out in the plea outline which was filed on your behalf, in the very thorough and helpful submissions of Ms Tittensor, and in the detailed report of the psychologist Dr Mathew Barth which was tendered on the plea. I will not cover this background in detail here, but will briefly mention some of the more important points.

56 You were born on 2 July 1981 and were hence 36 at the time of your offending and are now aged 37. Your family background was an interesting one, but had some real sadness to it. You were the youngest of three children to Paul and Yvonne. They had emigrated from South Africa before your birth and moved around the country somewhat before settling for a time in the eastern suburbs of Sydney. Your father is an electrical engineer whose work entailed much travel. Your mother, who worked casually as a beauty technician, tragically died at the age of 43 in 1993. You have an older sister Tanya and a younger sister Emma. You spent much of your early childhood in Sydney. While there, your immediate family enjoyed a close relationship with extended family which was closely tied to Jewish faith, traditions and celebrations.

57 You had a close relationship with your mother and a more distant one with your father, largely, perhaps, the result of his frequent travel away from home.

58 In 1990 when you were about eight, your family moved to Melbourne and settled in Doncaster. That meant the virtual cessation of the regular weekend celebrations of religious occasions and the like with your extended family. You found yourself somewhat isolated by comparison with your time in Sydney.

59 Despite attending good schools, including Jewish schools in Melbourne, you struggled academically, related in part to your difficulty dealing with change. You were a below-average student. In 1996, you were enrolled in Year 6 at Mount Scopus College in Burwood. You were approaching the time of your bar mitzvah, and it was hoped by your parents that your presence at that academically excellent school would improve your performance. Sadly, you mother was diagnosed at that time with pancreatic cancer. Her death followed only eight months later. She was only 43. You were 13.

60 This devastating event has continued to affect your life since then. Your father was perhaps ill-equipped to be a single father. He moved on fairly quickly to other partners and spent a lot of time away from you and your siblings. Indeed, the three of you were in a sense left to fend for yourselves.

61 Not surprisingly, your academic performance suffered even more as you completed the remainder of your schooling at various public schools in different areas of Melbourne. You finished at the Year 11 level at Sandringham Secondary College.

62 In your later years at school, you formed your first friendship of substance with a boy named Leigh. You began smoking cannabis together, which you found assisted you in your social anxiety. Your cannabis use escalated rapidly, and what became your daily preoccupation with the drug had a harmful effect on your life.

63 In spite of that, and your social deficiencies, you were consistently in employment, although your drug use had an impact on your reliability. You qualified as a chef in 2008 and worked in that field until your incarceration.

64 Your incarceration has had the beneficial effect on you of removing you from your daily use of cannabis. It has also had the effects of leading to a renewal in your formerly close relationships with your sisters, both of whom provided impressive letters to the Court, and causing you to re-engage significantly with your faith.

65 While in custody, you have completed a number of courses as detailed during the plea by Ms Tittensor.

66 You admitted the prior convictions contained in the criminal record filed in this case. The matters flowing from two Magistrates' Court appearances in 2005 and 2010 are of no significance where sentence is concerned. I disregard them.

67 As indicated earlier, you were originally charged with murder and spent quite some time with that charge hanging over your head. In circumstances I have already canvassed, you pleaded guilty to manslaughter on 6 August 2018. It was submitted on your behalf that your plea of guilty where a viable defence existed should be regarded as 'significant and valuable.' Without feeling the need to determine the worth or likely success of the defence available to you, I can readily and comfortably conclude that your plea of guilty is indeed a significant and important one which of itself would entitle you to a significant reduction in sentence. You should get the full benefit of that plea of guilty. Not only is there the utilitarian benefit flowing from the plea, but in addition, it is clear to me in the circumstances that the plea is evidence of your remorse, and of the other so-called subjective matters which may flow from a plea of guilty.[7]

68 I am satisfied that you have exhibited remorse for you actions and for the tragic and senseless death of Mr Jonuzi. After your initial dishonest account to the police, your fairly prompt change of heart is to your credit, as were the expressions of remorse contained in the second interview. And since that time, some of your actions as detailed during the plea are consistent with the proposition that you are appropriately remorseful for your actions.

69 You made a statement to the police which the prosecution accepts to be a truthful account of what you can say about this crime. You have given an undertaking to this Court to give evidence in accordance with that statement. That high level of co-operation is significant for all the reasons advanced by Ms Tittensor in the outline and orally during the plea. The prosecution acknowledges that you should receive a very significant discount for the assistance you have provided and have promised to provide in future.

70 The reports of Dr Mathew Barth, the product of more than five hours spent by the psychologist with you at the prison, provide important context that enables the Court to better understand you and how it is you came to find yourself at the age of 37 before a Court charged with a crime such as this when there was nothing in your background indicating a proclivity for violence. The reports indicate that you have had longstanding issues with feelings of worthlessness, social anxiety and the need for reassurance and guidance by others. Dr Barth goes as far as to state that you meet the criteria under DSM-5 for diagnoses of 'Adjustment Disorder - with Mixed Anxiety and Depressed Mood', and 'Cannabis-Use Disorder'.

71 I note, however, that in spite of the considerable problems you have manifested over the years, it is not asserted on your behalf that any of the principles enunciated in R v Verdins[8] are enlivened.

72 The fact that the Verdins principles have no application, of course, does not mean that the conditions from which you have suffered, and from which you suffer now, cease to have relevance. I take all of this material into account in the general sense in arriving at an appropriate sentence. It is important background material which puts your offending in its proper context.

73 I have already had something to say about the offence to which you have pleaded guilty. Your plea of guilty is an acknowledgment of the fact that you were complicit in all the acts which caused Mr Jonuzi's death, by whomever those acts were inflicted. The evidence indicates most of those acts of violence were carried out by Colton.

74 On the plea, Ms Tittensor pointed to Colton being a dominant personality in the household, and submitted he could be said to be 'a leader in the situation, and someone who was quite aggressive.' His input was described as being 'dangerous', particularly for someone with the mental frailty of you. It is difficult for me to form any definitive views about Colton. He is not before me. I only know of his personality from the conduct both you and Smart attribute to him.

75 The fact is, however, that Ms Tittensor did not go so far as to assert that you were bullied or persuaded into your involvement in this crime.

76 Ms Tittensor described your offending as 'senseless', a description which is apt. It was also unplanned, occurring spontaneously, and did not involve the use of a weapon. All of that is true as well.

77 But this was far from being momentary offending, the product of a few moments of madness or ill-judgment. It was offending which involved an unprovoked attack upon a sole man by three offenders acting together carried out over what can only be described as a protracted period. There were numerous kicks and punches, and also the application of significant force to the neck of Mr Jonuzi. For some of the attack, Mr Jonuzi was unconscious on the ground. For all of it, he was entirely helpless. For the bulk of the attack upon this man outside his home, he was being held in a leg lock by Smart, which prevented his escape and rendered him all the more helpless. While being restrained in that fashion, the attack upon him continued, including a serious act of violence by you individually upon him while he lay helpless on the ground on his back. There is nothing to indicate he had any way of resisting you and your co-offenders at any time. You are criminally responsible for all of this.

78 It was put by Ms Tittensor that your role was a less active one than both of your co-accused, certainly once outside. She conceded it might be arguable that you were more active than Smart inside the house.

79 In light of the facts of this case which have already been set out in some detail in this sentence, I think the submission of Ms Tittensor as to your less active role in events outside the house relative to Smart cannot be accepted. First, the whole purpose of the attack upon Mr Jonuzi, initiated by Colton though it was, was to secure payment of money owed to you, not to Smart. Inside the house once the attack was launched, you involved yourself in it enthusiastically and at a time before Smart was even present. Even though you saw the extreme aggression and violence of Colton's conduct, and observed Mr Jonuzi rendered unconscious by the attack, you continued to participate not only in moving the unconscious man outside, but in involving yourself further in the attack out there. You continued to observe at close hand the shocking conduct of Colton, but continued to be complicit in the offending, as your plea of guilty makes clear.

80 Taking everything into account, I believe your actual role in the offending was more serious than was Smart's.

81 I am prepared to sentence you on the basis that you were not the instigator of this offending. The attack was initiated by Colton, joined in close to the start by you, and then a little later by Smart. But the fact remains you were prepared to go outside with the others and then render your assistance to Colton in the violent and protracted assault out there which led to the death of Mr Jonuzi. You were in a position to observe what was being done to Mr Jonuzi by Colton. You were able to see the number of blows and kicks administered to him, and presumably the effect these things had on him. You knew the reason why this was taking place was the comparatively trivial matter of some outstanding rent owed to you. You had ample opportunity to desist from your involvement in the crime and try to bring it to an end. You did not do so.

82 In the circumstances of this case, I believe there are good prospects of rehabilitation. As seems to have been the case with Smart whom I will sentence later today, coincidentally for you, being locked up has had some beneficial effects for you. As was said of you by counsel in the outline:

He now has real insight into how his offending occurred on this occasion and a deep awareness of the consequences of his actions. Although he remains troubled by depression and anxiety, he is free from the cannabis haze for the first time in twenty years and is finally confronting his issues honestly and openly with others.

83 In circumstances where you have actually benefitted from being in custody, it is to be hoped that the additional quite lengthy period you will necessarily spend in custody from today will also be used well by you. You have the support of your sisters, who have offered both accommodation and employment on your release. You are apparently open to the prospect of obtaining treatment for your various issues. Your sisters are aware of the desirability of this. There is a real prospect that you can turn your life around, and never again be involved in the sort of violent conduct that has led you to be sitting in the dock of this Court.

84 I take into account in sentencing you that you do have good prospects of rehabilitation, and that fostering your rehabilitation in this case would be a significant sentencing purpose. To that end, I have paid heed to Ms Tittensor's submission that you would benefit from a significant period of supervision on parole. I note, however, that both the head sentence and non-parole period fixed must adequately reflect the purposes for which sentence is to be passed in this case. The non-parole period I will set relative to the head sentence will allow for the potential of a lengthy period of supervision under parole in the community.

85 In your case, victim impact statements were read to the Court by Afradita Hanika and Naime Balla, both sisters of Mr Jonuzi, and Andrew Ross, the former long-term partner of Mr Jonuzi. The statements became Exhibit B on the plea. I will not go into the statements in detail, but note that they reveal graphically and in understated terms the almost unbearable sadness, anguish and sense of loss experienced by each of their authors. The statements of Ms Hanika and Ms Balla reveal Mr Jonuzi to have been a much-loved member of a loving and caring family. That he has been so cruelly and senselessly taken away is a source of complete devastation to the whole family. Mr Ross, too, spoke of the considerable trauma your crime has caused him. He said, in part, 'Not only have I lost someone I loved so dearly, but the thought of what he went through, the horrific way in which he died, plays on my mind and now makes me see the world in a different way.'

86 The tragic consequences of your crime upon the family and loved ones of Mr Jonuzi cannot be overstated. I take the victim impact statements into account as I am required to do under the Sentencing Act 1991.[9]

Current sentencing practices and comparable cases

87 One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[10] In seeking to understand these, I have considered, amongst other things, the Sentencing Snapshot from the Sentencing Advisory Council, the helpful material contained within the Judicial College of Victoria's Victorian Sentencing Manual, including the manslaughter case collection, and a number of other cases in which sentences for manslaughter have been considered. There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of a crime such as manslaughter which spans such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range.

88 Mr Gibson referred me in the plea of Smart and also in your case to some comments made by Justice Weinberg in the case of R v Vincec.[11] That was an application for leave to appeal against a sentence of eight years with a minimum of five years for a manslaughter brought about by the infliction of a single punch to the head. The applicant had pleaded guilty. The single ground of appeal was that the sentence and non-parole period were manifestly excessive. In refusing leave, his Honour had this to say:

Perhaps, in the past, a sentence of eight years' imprisonment, with a non-parole period of five years, might have been considered stern for an unlawful and dangerous act manslaughter, involving a punch to the head, leading to a fall, and resulting in death.

Even so, as far back as 1991 (when, it should be noted, that the maximum penalty for manslaughter was 15 years' imprisonment, and not 20 years as it is now), sentences of five and [a] half years' and four and a half years' imprisonment were increased, on appeal by the Crown, to nine years' and eight years' imprisonment respectively.

As the sentencing judge correctly noted, sentences for all forms of manslaughter have increased significantly in recent years. In the past few years, the sentencing statistics, produced by the Sentencing Advisory Council, show that there have been a number of sentences for manslaughter which have exceeded 10 years' imprisonment. Those statistics indicate that there is nothing at all unusual about a head sentence of eight years for manslaughter, still less a non-parole period of five years. Indeed, the most recently available sentencing snapshot for manslaughter indicates that, the average sentence for this offence is currently between about seven years and nine years' imprisonment.

Where this case sits in the spectrum of offending

89 Insofar as I have made the point that manslaughter is a crime which spans a wide breadth of criminality, it may be of assistance to consider where in the spectrum your case would sit. It must be acknowledged that this is a very imprecise calculation. Also, it is a process which may tend to detract from the fundamental reality that every case of manslaughter, involving as it does the loss of a human life, is serious.

90 For what it is worth, I believe the offending in this case, so far as its objective features are concerned, can be said to fit within the mid-range of seriousness for offences of manslaughter. That was the submission of Mr Gibson. I did not understand Ms Tittensor to challenge the proposition. I think it is clearly correct.

91 One of the important considerations in sentencing you is the relativity between your sentence and that to be imposed on your co-offender Smart. I will sentence him later today. I purposely delayed sentencing either you or Smart until I had heard the pleas in mitigation for both of you and was in a position to sentence you both.

92 As was stated relatively recently by the Court of Appeal in R v Philp:[12]

The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community's sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[13]

93 The appropriate relativity between the sentences to be passed on you and Smart is a difficult concept. Although there are many similarities between the relative positions of each of you, so too are there many differences. Some differences are to your benefit, and some to the benefit of Smart where sentence is concerned. Arriving at appropriate relativity of sentence between you and Smart is not achievable through some precise arithmetic calculation. I can indicate, however, that I have done my best to arrive at an appropriate sentence for you on the one hand and Smart on the other by taking into account all of the relevant similarities and distinctions.

94 The complexities inherent in comparing the positions of you and Smart are apparent when your relative roles in the actual attack are considered. The genesis for the dispute was your concern about rent owing by Mr Jonuzi, not Smart's concern. In the case of both of you, you were not the initial instigators of the violence. Colton had that role. Unlike Smart, you were present at the start of proceedings, and witnessed the full extent of Colton's violence. Smart did not witness the start, and did not join in until later. You applied physical force to Mr Jonuzi inside the house. Smart did not. Outside the house, you assaulted Mr Jonuzi while he lay on his back on the ground by forcefully dropping your elbow onto his chest. Smart carried out no such action, although of course he did hold Mr Jonuzi in a leg lock to facilitate the continuing attack upon him by Colton. You, unlike Smart, arranged for Mr Jonuzi to use your mobile phone to check the balance of his bank account, reflecting again the fact that it was your desire to be paid what was owing in rent which was at the heart of the offending. Where both of you are concerned, however, it cannot be forgotten that you both were complicit in a protracted, violent, unprovoked attack upon a man by a group of three offenders, the seriousness of which attack has been emphasised already in this sentence.

95 All-in-all, there may be reason to distinguish between the two of you where your roles in the offending are concerned. On that score, as I have already indicated, you are in a worse position than Smart. But when other matters are taken into account, that changes.

96 You pleaded guilty at a later stage of proceedings than Smart, following a contested committal. On the other hand, although you did run a contested committal, you had already at that time entered into discussions with the prosecution aimed at resolving the case, and had made a draft statement to assist the prosecution. And you, too, pleaded guilty at a reasonably early time after the committal.

97 In terms of your backgrounds, whilst yours was a more privileged one than Smart's, it must be noted that the death of your mother at a critical time in your life led to a good deal of instability diminishing your previously stable life. Both of you have struggled with drug addiction for many years. Both have had and still do have psychological difficulties, but not such as to enliven the principles in Verdins.

98 There is one critical difference between your position and that of Smart. You provided a statement to investigators as to the circumstances of the crime. You have given an undertaking before me to assist in the prosecution of Colton. That is a matter which, for all the reasons explained in the authorities, entitles you to a substantial discount in sentence. Smart is entitled to no such discount.

99 The matters I have outlined above are not intended to be an exhaustive statement of the numerous similarities and differences between the relative positions of you and Smart where sentence is concerned. I trust, however, that they may be taken as an indication that I have done my best, in arriving at an appropriate sentence for you by the process of intuitive synthesis, to take into account your position relative to that of Smart. In the end, I consider that the discount in sentence to which you are entitled for the very weighty matter of your co-operation with the authorities and undertaking to assist in the prosecution of Colton dictates that you should receive a sentence which is significantly lower than Smart's.

100 To my mind, just punishment, denunciation and general deterrence are important sentencing considerations in this case. With two other men, you took part in a brutal and entirely unwarranted attack upon a helpless victim who had done nothing to deserve any violent treatment, less still the protracted and vicious attack which led to his death. You need to be appropriately punished for your serious offending. The outrageous conduct of the group of which you were a willing member must be denounced publicly in a meaningful way. Even more importantly, the sentence passed on you should bring it clearly home to any person in our community who might be minded to inflict such extreme violence upon any other person, in particular a blameless, helpless, outnumbered person such as Ramis Jonuzi, that such conduct will be met with strong punishment.

101 I accept that specific deterrence is not as important in your case as it would be in many others, in light of the fact you had accrued no significant criminal convictions in the 36 years of your life which preceded this offence, the remorse you have demonstrated, and the steps you have seemingly taken towards rehabilitation thus far. That is not to say specific deterrence is not still relevant.

102 As for rehabilitation, I refer to what I have already said about the significance of this as a sentencing consideration here.

S 6AAA Sentencing Act 1991 declaration

103 I am required to make a declaration under s 6AAA of the Sentencing Act 1991 of the sentence I would have passed in your case but for your plea of guilty. Your plea of guilty is of course significant as I have already made clear, and deserving of a significant reduction in sentence. But in this case, it is difficult to view the significance of the plea of guilty in isolation from the benefit you will also derive on account of your co-operation and undertaking to assist the prosecution.

104 On some occasions, judges of this Court and the County Court have made s 6AAA declarations factoring in the two matters of a plea of guilty and assistance given and promised. In that way, the declaration actually means something intelligible. Otherwise, the s 6AAA declaration in a case such as this would be entirely pointless. In the circumstances of the case, in spite of Mr Gibson's understandable lack of enthusiasm for this course, I will make a s 6AAA declaration taking into account both the plea of guilty and the assistance provided in the past and promised in future to the authorities.

105 Craig Jonathon Levy, for the manslaughter of Ramiz Jonuzi, you are sentenced to be imprisoned for 7 ½ years. I fix a period of 4 ½ years during which you will not be eligible to be released on parole.

106 I declare that you have served 336 days by way of pre-sentence detention, up to and including 25 September 2018.

107 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty and co-operation, I would have imposed a sentence of 12 years' imprisonment with a non-parole period of 8 ½ years.

[1] Statement of Paul Stratov, depositions 262.

[2] Transcript commences at page 784 of depositions.

[3] Transcript commences at page 822 of depositions.

[7] R v Phillips [2012] VSCA 140; (2012) 37 VR 594 [68]-[69].

[8] [2007] VSCA 102; (2007) 16 VR 269.

[9] Section 5(2)(daa)-(db).

[10] Sentencing Act 1991, s 5(2)(b).

[11] [2018] VSCA 18 [56]-[58].

[12] [2017] VSCA 320 (Maxwell P and Croucher AJA)[5]

[13] [1984] HCA 46; (1984) 154 CLR 606, 610-611.