The Queen v Smart [2018] VSC 568

1 Ryan Charles Smart, you have pleaded guilty to the manslaughter of Ramis Jonuzi on 25 October 2017. The killing took place at premises at 14 Alexander Street, Brighton East, in which Mr Jonuzi was residing at the time with you and two other men. The maximum penalty for manslaughter is imprisonment for 20 years.

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 Craig Levy ('Levy') had resided at 14 Alexander Street, Brighton East since 2011. You and Levy had rented the premises from a man named Bryce Gaton, and Levy was 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 Levy 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 Levy occupied separate bedrooms in the house. A third bedroom inside the house was placed by Levy on Airbnb. In October 2017, Mr Jonuzi moved out of his parents' home and commenced employment at a restaurant. On 11 October 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 Levy to stay for another week at the address. He told Levy that he would pay for the accommodation when his salary came in. They agreed 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 Levy. It seems that Levy, you, 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 Wednesday 25 October 2017, having apparently found out that Mr Jonuzi had no money in his bank account, Levy requested that he vacate the premises.

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

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

11 By 7.38pm, Colton was back in the garage of the premises, having returned from the bar. You returned to the premises at 7.45pm from a trip to get some groceries. On your account in your interview with the police, you went to your room and played video games.

12 Eventually, Mr Jonuzi packed his belongings into his utility and asked Levy to check the state of his room. Levy found the state of the room to be satisfactory, but noticed Mr Jonuzi had not left his house keys. Levy 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.

13 During the search for the keys, Mr Jonuzi offered to telephone his boss to find out when he would be paid. Levy offered him the use of his phone and went inside, expecting Mr Jonuzi would follow. Instead, Mr Jonuzi remained sitting in his vehicle for some time, before returning inside and sitting next to Levy in the lounge room shortly after 8.00 pm. Colton was also in the room. At this time, you were in your bedroom, and were not present for the start of the attack which commenced upon Mr Jonuzi a short time after his return inside.

14 Colton confronted Mr Jonuzi, swore at him, and then threw him up against the wall of the lounge room and began to choke him. This physical attack was entirely unprovoked, and seemingly motivated by nothing more than Colton's anger at Mr Jonuzi for not having paid the rent. Levy assisted Colton in the attack, and you emerged from your room and witnessed the attack from a time close to its commencement.

15 After a time, you and your two co-offenders moved outside with Mr Jonuzi. The attack upon him continued in the front yard of the premises where he was kicked, punched and further choked by Colton. You placed Mr Jonuzi in a 'figure four' leg lock to prevent him from getting away. While you had him in this lock, Colton and Levy continued to assault Mr Jonuzi.

16 Whilst being assaulted, Mr Jonuzi supplied Levy with the account and log in details to his Westpac online account. Levy used his mobile phone to access Mr Jonuzi's online account and checked the balance at 8.13 pm. Having ascertained there was no money in the account, Levy went inside the house, apparently to call the police.

17 After the departure of Levy from the front yard, you continued to maintain the leg lock on Mr Jonuzi to keep him pinned down. Whilst you were doing this, Colton went to Mr Jonuzi's vehicle and found a brown calligraphy case which he apparently believed contained a syringe. He returned to where you were still holding onto Mr Jonuzi, who by that time was unconscious and lying face down. Colton inserted the calligraphy case into the anus of Mr Jonuzi. As the case has been put to me by both sides, you are not responsible for the shocking action of Colton in inserting that calligraphy case. I accept that this is so. It is of note, however, that while that event occurred, and even after you had seen that occur, you continued to hold the unconscious Mr Jonuzi in the leg lock.

18 I note that Colton, as well as facing a charge for the murder of Mr Jonuzi, also faces a charge of rape. You face no such charge.

19 At 8.20pm, Levy made a phone call to the Caulfield Police Station and spoke to Sergeant Paul Stratov. At 8.23 pm, Stratov contacted 000 and reported the incident.

20 Colton returned to his bedroom in the garage of the house, where he removed his bloody hooded top and calmed his dog. Still you remained on the front lawn, continuing to hold Mr Jonuzi in the leg lock.

21 At 8.30 pm, 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, Levy was seen moving away from Mr Jonuzi's right side, and you were seen moving away from the feet of Mr Jonuzi.

22 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.

23 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.

24 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.

25 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.

26 You were initially interviewed by the police commencing at 10.28 pm on 25 October 2017.[1] 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.

27 In the interview, you said that at about 8 pm, you were in your room playing video games. You were aware Mr Jonuzi was leaving that day and was supposed to pay his rent. You heard a bit of a scuffle and then heard Mr Jonuzi say, 'Stuff your money'. You claimed you heard Levy say to Mr Jonuzi, 'You've got to give me my money. You owe me money'. You said you then heard Levy yelling out, 'Help, stop, what are you doing? Get out of my house.' You said you opened your door and saw Mr Jonuzi with something long and grey in his hand. You claimed he was wrestling with Levy. You heard Levy yell for help again, and you ran to his assistance. You tried to grab Mr Jonuzi's arm which had the weapon in it and he threw you off. You tried to grab his arm again and he said 'You want some too?' You claimed Mr Jonuzi then hit you to the face with the weapon and you went down and yelled for help. You said he kicked you to the side. You said you were then asked by Levy to hold onto Mr Jonuzi to make sure he didn't go anywhere. You held his legs, and the next thing you knew the police were there. In the account you gave in this first interview, you did not say anything about Colton assaulting Mr Jonuzi. You said to the police, 'I see myself as more of a victim, like, I didn't hit anybody...All I did was pretty much try to go out and break up a fight and pretty much get hit myself and stuff like that and, yeah, like I wasn't out looking for trouble.'

28 It is apparent that what you said in the first interview was a tissue of lies designed to protect your position, and to protect your co-offenders as well.

Brief recorded conversation at 3.03 am on 26 October 2017

29 Mr Dempsey drew my attention to a short conversation you had with the police early on 26 October 2017 between the first and the second interviews.[2] In this conversation, you detailed your fear of Colton, but maintained the dishonest account you had given in the first interview. In fact, you said of the first interview that everything you had said in it was the truth. You maintained the dishonest account that Mr Jonuzi had attacked you and Levy with a weapon, and you denied having done anything to Mr Jonuzi.

30 The main 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.

31 Again, you gave an account of having heard a scuffle while you were in your room which went for about five minutes. You opened the door and saw some signs of disturbance with a mess in the lounge room. You said you saw no one in the lounge room at that time. You said you observed no physical or verbal altercation inside the house. Your attention went to the front door which was wide open. You looked outside and you saw Levy and Mr Jonuzi standing and wrestling in the front yard. Both had blood on them. You saw a grey stick or pole being brandished by Mr Jonuzi. You tried to grab him by the arm and said to stop but Mr Jonuzi shrugged you off quite easily. Now you said you tried to grab the weapon but it was pulled out of your grip. You were hit with the weapon to the head. You crouched down on the ground in a foetal position. You claimed Mr Jonuzi kicked you to the ribs and you were winded and came close to fainting. You heard someone say to 'stop it' or 'get off him'. You said Mr Jonuzi was standing up near you, then you saw him lying on the opposite side of the tree. You said Levy or Colton ordered you to 'guard' Mr Jonuzi to make sure that he didn't run off. Levy ran inside to call the police. You said you could hear Mr Jonuzi mumbling something. Then you claimed you heard him say, 'Oh, you really don't like me.' You said he was 'obviously alive and kicking at that current point in time.' He started to move a bit and you yelled for help. You said Colton came over to help you. Colton reached down and 'did something to the guy.' You claimed Colton said, 'Make sure this guy doesn't move. Don't let him get up.' You claimed Colton threatened that if Mr Jonuzi moved, he, Colton, was going to get you next. You said you sat in the driveway with Mr Jonuzi for 5-7 minutes before the police arrived.

32 Later in the interview you said you were 'pretty sure' it was Mr Jonuzi holding the weapon. You said Colton was not involved in the altercation which you saw taking place initially outside. You said your reason for involving yourself in the altercation outside was to remove the weapon and to try to separate the two men and calm the situation down. It seemed that Mr Jonuzi was 'winning the ruckus' and 'throwing around the smaller guy.' You said that when you were hit with the weapon, you were 99 percent certain it was Mr Jonuzi who hit you. You maintained your claim of being kicked while you were in the foetal position. You said it was Mr Jonuzi who kicked you.

33 You said you found it slightly amusing that Mr Jonuzi's pants came down and his 'stuff' was showing. You said Colton walked past and said, 'This is what naughty boys get', before spanking him on the bare bottom. At this time, Mr Jonuzi was mumbling. Shortly after the spanking, Mr Jonuzi made the comment about not being liked. While Levy was calling the police, Mr Jonuzi stopped moving.

34 You said that Colton grabbed the brown case from Mr Jonuzi's ute. Colton said, 'I found the junky's pricks'. He walked past and 'gone whack and just like put them there - planted them like a - as if you would put a flag on a mountain or a candle on a birthday cake or something'. You did not think Mr Jonuzi was conscious at that time. You had your legs over his legs at the time of this incident.

35 Late in the interview, you admitted having placed a leg lock on Mr Jonuzi for a minute to stop him from getting you again. You also said that Colton made you sit in the driveway making sure Mr Jonuzi didn't leave and you sat with your legs over his legs. By this time Mr Jonuzi was unconscious or 'maybe even dead.' You said you were too scared to touch him or check his pulse.

36 You said you could not say anything about force being applied to Mr Jonuzi's neck. You did not see it. You said you saw Levy at least attempt to hit Mr Jonuzi during their original wrestling in the front yard. You also said Colton punched him 'quite a couple of times at least while he was down.' Later, Colton walked back and said, 'Stuff the guy, I'm kicking him in the face now.' You said you then heard something in the background. You claimed you witnessed very little of what was done to Mr Jonuzi. At least two punches, a kick, and the noise of another kick.

37 When asked if you had any information about what had caused the death of Mr Jonuzi, you spoke of the blunt trauma to his head and said you did notice hits 'while he was down' which you described as a 'low act'. As far as you were concerned, these came from Colton and you also said, 'It would not surprise me as well that he's latched onto a head or neck or choked him or whatever', but you said you did not see this and at no time saw Colton with his hands around Mr Jonuzi's neck.

38 When asked if you had assaulted Mr Jonuzi, you said you did try to grab his legs but did nothing else and did not contribute to his death at all.

39 You said that you did not like Mr Jonuzi at all and did not feel comfortable around him. As for Colton, you said you did not trust him, and claimed he had assaulted you the previous Saturday. He was 'a sort of angry type that wouldn't hesitate to do something'.

40 It is apparent from this summary of the second interview that you essentially maintained in that interview the dishonest and self-serving account you had given in the first interview.

41 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.

42 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.

43 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.

44 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]

45 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.

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

47 The relatively brief statement of the facts of this fatal attack upon Mr Jonuzi related thus far does not do justice to the true nature of the attack upon him which took his life and left him with the many signs of injury observed by Professor Cordner. What I have said has been largely based upon the content of the Amended Prosecution Opening on Plea which was presented to the Court by Mr Gibson for the prosecution and became Exhibit A on the plea. As things were explained to me by counsel on both sides on the plea, that Opening was in essence a statement of agreed facts in this case. That came about because of the circumstances under which you came before this Court.

48 Although as indicated above in the summary of your interviews with the police, you denied any criminality during those interviews, and although a contested committal hearing was booked in to commence on 22 May this year, following discussions that had taken place before the committal hearing between your counsel Mr Dempsey and the then prosecutor Mr M Gibson SC of counsel, you pleaded guilty to manslaughter on the first day of the committal without the need for any evidence to be called. Discussions between your counsel and the then prosecutor had led to a summary being agreed upon between the parties which became the initial Prosecution Opening on Plea to which some slight modifications were made prior to the plea proceeding before me when the Amended Prosecution Opening on Plea was presented. Counsel on both sides indicated that the amended opening was the central material upon which I should sentence you. I act upon that basis.

49 You were arraigned for the first time in this Court on 6 August 2018, and pleaded guilty to manslaughter on the basis agreed.

50 Of particular note is the fact that Levy, who ran a contested committal for murder, himself pleaded guilty to manslaughter after the conclusion of the committal. He made a statement to police dated 15 August 2018, that is, some months after you had pleaded guilty to manslaughter on an agreed basis. The purpose of this statement was to indicate the evidence Levy would be prepared to give against Colton on his trial for murder, which is listed early next year. The statement was provided to the Court at this time for completeness, but it was the position of both sides that I should not take the Levy statement into account when arriving at the facts of this case. I have not done so.

51 That is not to say that I was not entitled to look to the depositions in seeking to arrive at a proper understanding of the crime to which you pleaded guilty. Mr Dempsey quite correctly acknowledged that I was well entitled to have regard to material in the depositions in seeking to gain a more complete understanding of such things as the duration and severity of the attack upon Mr Jonuzi. His main concern was that I not have regard to the account given by Levy in his statement. I made it clear to him as I do to you that I have not taken the contents of Levy's statement into account at all.

52 As indicated, the cause of death of Mr Jonuzi was found 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. Although it is the case you were not present to witness the very commencement of this attack, you were present and actively involved from an early time after the commencement. 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.

53 I point out that although there is no evidence you actually inflicted any of those blows 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, you went outside with your accomplices and from an early time out there had Mr Jonuzi in a leg lock to prevent him from getting away and to permit the attack upon him by the other two men to continue. You continued to hold him captive on the ground in this leg lock while Levy used the banking details which had been extracted from Mr Jonuzi during the beating to check his account balance at 8.13 pm. You still maintained the leg lock while Levy went inside the house and while Colton went to Mr Jonuzi's vehicle and picked up the calligraphy case. You maintained the leg lock even after the calligraphy case was inserted by Colton into the anus of Mr Jonuzi. At 8.20 pm, Levy rang the police. After this, Colton returned to the garage. Throughout it all, and even after Colton's departure from the front yard, as the agreed facts indicate, you maintained this leg lock on Mr Jonuzi, who for some time, to your knowledge, had been unconscious, and in reality, was at the very least close to death. Even by the time of the arrival of the police at 8.30, almost half an hour after the attack had commenced and you had become involved in it, you were seen to be moving from a position close to the feet of Mr Jonuzi. You had clearly held him in that leg lock until the arrival of the police or close to it.

54 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.

55 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.

56 Your personal background was set out in the plea outline which was filed on your behalf, in the comprehensive and helpful submissions of Mr Dempsey, and in the report of the psychologist Patrick Newton which was tendered on the plea. I will not cover this background in detail here. Suffice to say, you have had a very sad and limited life in many respects. In short, you were born on 27 August 1980 and are now 38 years old. You have one sister who has been confined to institutional care for some years due to psychiatric problems. Your father was a violent drug user who left the family when you were one year old. Your mother was an alcoholic and drug addict who was incapable of providing a secure or stable environment for you or your sister. She had a succession of unstable and violent relationships. When you were 18 she suffered a burst aneurism and she has been confined to a nursing home since then. Due to the lack of stability in your life, you switched schools frequently. Despite that, you were an above-average student academically. In respect of that, I note that it is the opinion of Mr Newton that your intelligence would be in the 'high-average range.' Socially, however, your skills were substantially impaired, and you became, and remained, a loner with no real friends. You were ostracised and bullied at school. You left during Year 12 to care for your mother after her aneurism.

57 Once your mother's condition stabilised, you commenced an apprenticeship as a motor mechanic but you left after a year. Since then, you have obtained a number of TAFE qualifications and worked in a number of fields including in catering, warehousing, and laying cables. Your employment history, however, has been quite haphazard.

58 You have had two long-term cohabiting relationships, but each remained quite distant with only a superficial level of intimacy.

59 You have had a history of abuse of drugs going back to the age of 12. You commenced drinking at that age when provided alcohol by your mother and continued to drink heavily throughout your life to the point of your incarceration. From the age of 14 until the time of your incarceration, you abused cannabis. You used the drug every day, and as you described it to Mr Newton, 'Weed made me lazy and I stopped caring about most things.' You also abused methamphetamine, ecstasy and LSD, amongst other drugs.

60 You have had an obsessional interest in online role-playing games for some years which has often involved you playing games for 16 hours a day, and spending large amounts of money in pursuit of your interest.

61 You have no prior convictions at all and no experience with the criminal law until your commission of this offence.

62 You have suffered from anxiety throughout your life, and according to Mr Newton, you resorted to substance abuse and the online gaming as a key means of containing that anxiety.

63 Understandably, Mr Dempsey emphasised the fact that despite your tragic background, your substantial drug addiction, your considerable isolation - perhaps well illustrated by the fact you have had no visitors at all since your incarceration - and your very sad life, you have never offended before. He described your offending as aberrant. It can readily be described as that.

64 As mentioned earlier, you pleaded guilty to manslaughter on the first day of the committal hearing which was to consider the charge of murder you faced at that time. I take into account in your favour that early plea of guilty entered by you. You are entitled to a significant reduction in sentence on account of the plea of guilty, which amongst other things is indicative of the remorse you certainly felt by the time the plea was entered.

65 As just indicated, there is no question that by the time you pleaded guilty on 22 May 2018 you were remorseful for the crime you had committed and the death of Mr Jonuzi. That remorse was not in evidence at the time of your two interviews with the police. In both of those interviews, you sought to maintain a dishonest story designed to blame Mr Jonuzi for his fate, and to protect you and your co-offenders from prosecution. That is unfortunate, but the fact remains that by the first day of the committal, if not earlier, you were prepared to acknowledge the wrongfulness of what you had done. You have taken other steps since that time to manifest the genuine remorse I am satisfied you do now feel. Mr Newton in his report to the Court dated 10 August 2018 noted:[7]

Mr Smart expressed remorse and regret for the death of Mr Jonuzi. He said that he did not know how adequately to express his regret for what occurred, but indicated that he accepted his responsibility for the role he had played and that he felt an abiding sense of sorrow combined with a shame occasioned by the recognition that no action on his part could now restore Mr Jonuzi to life. He said, 'Saying sorry works when you bump someone or spill a drink, not when someone has died.'

66 I take into account in your favour the fact that you are remorseful for your offending.

67 I have referred to the report of Patrick Newton. It was of assistance to the Court in understanding your personal background, the context in which your offending occurred and the changes which have occurred in your life since your incarceration. In that regard, I note that Mr Newton noted that, surprising though it may seem, a number of positive changes have been brought about in your life by your incarceration for your crime. Your arrest has had the effect of 'bringing [your] behavioural problems under control and ensuring that for the first time [you] have received effective treatment for [your] anxiety.' It seems amongst other things that the structured environment to which you are subject in prison has ameliorated some of your anxiety-related symptoms. As Mr Dempsey submitted of you on the plea, 'In an odd way, in a counterintuitive way, perhaps, he has prospered somewhat in prison.'[8]

68 Mr Newton points to the need for further treatment and counselling in future. Your counsel relies in part on this proposition in submitting that yours would be a case which warrants 'a meaningful disparity between head sentence and non-parole period.'[9]

69 I note that your counsel placed no reliance on the plea upon any of the principles enunciated in R v Verdins.[10] This was so in spite of the significant anxiety and other conditions from which you have suffered for some time as set out in Mr Newton's report. 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.

70 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.

71 It was asserted on your behalf that the offending was unplanned and without the use of weapons. That is true. 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 you, which prevented his escape and rendered him all the more helpless. 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. As Mr Dempsey conceded during the plea, 'He involves himself in an assault where he is well aware that Mr Jonuzi is being hit and kicked and having pressure applied to his head and his neck.'[11]

72 Mr Dempsey pointed to the personality of Colton and to the claim you made that you were scared of him, having been assaulted for some reason by him the previous week. Indeed, Mr Dempsey suggested that I 'may well form the view that Mr Colton's a particularly malevolent presence in this house.' Other than Colton's violent conduct on this occasion, there is little evidence on which I could reach such a conclusion. And importantly, there is no evidence upon which I could find that you were forced or coerced into your offending.

73 It was submitted on your behalf that I can be satisfied that you were not a leader or instigator of this offending, or indeed of anything in your life. Mr Dempsey, having described you as 'a 38 year-old with no prior history, in fact a history of withdrawal, being bullied, socially isolated, with no history of violence,' then asked rhetorically, 'Would he involve himself to this full extent without the encouragement or direction of others?'[12]

74 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 Levy, who was present from the start, and then a little later by you. But the fact remains you were prepared to follow the others outside and then render your assistance to Colton and seemingly Levy 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 the others. 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. 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.

75 In the circumstances of this case, I believe there are good prospects of rehabilitation. Being locked up has seemingly acted as a sort of a circuit-breaker in the destructive pattern of the life you were leading at the time of your crime. You have actually benefitted from being in custody, and 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. If that occurs, 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.

76 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 Mr Dempsey's submission that what he described as a 'meaningful disparity between head sentence and non-parole period' would be warranted in this case. 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.

77 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 Anika 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 devastation your crime has caused him, and of the difficulty he feels in forgiving you and the others for treating Mr Jonuzi so inhumanely. He completed his statement by saying, 'The years you will be sentenced for will never compare to the life sentence you handed me as I will never hear that laugh again.'

78 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.[13]

Current sentencing practices and comparable cases

79 One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[14] 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.

80 Mr Gibson referred me to some comments made by Justice Weinberg in the case of R v Vincec. 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. [15]

Where this case sits in the spectrum of offending

81 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.

82 With those notes of caution, I will make some comments on where this offence of yours may sit on the spectrum of seriousness. In his outline filed on the plea, Mr Dempsey stated of your crime, 'The offending though clearly serious would be properly considered low to mid range in terms of gravity.'[16] Although this was the starting position during the plea, having been taken by me to a number of the aspects of your offending which pointed to its seriousness, counsel very reasonably, and in my view appropriately, submitted that upon reflection, he agreed with my characterisation of the crime as being in the middle range of seriousness.[17] That, too, was the position of Mr Gibson on the plea.

83 One of the important considerations in sentencing you is the relativity between your sentence and that to be imposed on your co-offender Levy. I sentenced Levy earlier this morning to a sentence of 7 ½ years' imprisonment with a non-parole period of 4 ½ years.

84 As was stated relatively recently by the Court of Appeal in R v Philp:[18]

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.[19]

85 The appropriate relativity between the sentences to be passed on you and Levy 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 Levy where sentence is concerned. Arriving at appropriate relativity of sentence between you and Levy 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 Levy on the other by taking into account all of the relevant similarities and distinctions.

86 The complexities inherent in comparing the positions of you and Levy are apparent when your relative roles in the actual attack are considered. The genesis for the dispute was Levy's concern about rent owing by Mr Jonuzi, not yours. In the case of both of you, you were not the initial instigators of the violence. Colton had that role. Unlike Levy, you were not even present at the start of proceedings, joining in a little later. Unlike Levy, you applied no physical force to Mr Jonuzi inside the house, or indeed outside the house. On the other hand, you, unlike Levy, held Mr Jonuzi in a leg lock to facilitate the continuing attack upon him by Colton. You did this even after Levy left the front yard to go inside to call the police. For his part, during the attack, Levy, unlike you, used the mobile phone of Mr Jonuzi to check the balance of his bank account, reflecting again the fact that it was Levy's 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.

87 All-in-all, there is reason to distinguish between the two of you where your roles in the offending are concerned. On that score, you are in a better position than Levy. But when other matters are taken into account, that changes.

88 You pleaded guilty at an earlier stage of proceedings, without the need for a contested committal. On the other hand, although he did run a contested committal, Levy, too, pleaded guilty at a reasonably early time after the committal, and it is of note that he had, before the committal, entered into discussions with the prosecution aimed at resolving the case, and had already provided a statement to the police in draft form.

89 In terms of your backgrounds, whilst yours was quite a deprived one, Levy's was more privileged, although it must be noted that the death of his mother at a critical time in his life led to a good deal of instability diminishing his 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.

90 There is one critical difference between your position and that of Levy. He provided a statement to investigators as to the circumstances of the crime. He has 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 him to a substantial discount in sentence. You are entitled to no such discount.

91 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 Levy 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 Levy. In the end, I consider that the discount in sentence to which Levy was entitled for the very weighty matter of his undertaking to assist in the prosecution of Colton dictated that he should receive a sentence which was significantly lower than yours.

92 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 left him dead. 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.

93 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 criminal convictions in the 37 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.

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

95 Ryan Charles Smart, for the manslaughter of Ramis Jonuzi, you are sentenced to 9 years' imprisonment. I fix a period of 6 years during which you will not be eligible to be released on parole.

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

97 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 11 years' imprisonment with a non-parole period of 7 ½ years.

98 I make the disposal order sought by the prosecution and consented to by the defence in respect of the items referred to in the Schedule to the order.

[1] Transcript commences at page 894 of depositions.

[2] Transcript of conversation is Exhibit 2.

[3] Transcript commences at page 912 of depositions.

[10] [2007] VSCA 102; (2007) 16 VR 269.

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

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

[15] [2018] VSCA 18 [56]-[58].

[18] [2017] VSCA 320 [5] (Maxwell P and Croucher AJA).

[19] [1984] HCA 46; (1984) 154 CLR 606, 610-611.