Supreme Court New South Wales Medium Neutral Citation: R v Sateki Siale [2017] NSWSC 1298 Hearing dates: 15 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Common Law - Criminal Before: Garling J Decision: For the offence of the murder of Kelly Ventigadoo a term of imprisonment comprising a non-parole period of 17 years to commence on 11 October 2015, with a balance of term of 7 years Catchwords: SENTENCING – murder – where actual use of weapon and prior criminal record – where offender heavily intoxicated Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Madden v R [2011] NSWCCA 254 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Barbieri [2016] NSWCCA 295 R v Isaacs (1997) 41 NSWLR 374 R v Shankley [2003] NSWCCA 253 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Not Applicable Category: Sentence Parties: The Crown Sateki Siale (Offender) Representation: Counsel: J Crespo (Crown) B Hughes SC / B Longville (Offender) Solicitors: Crown Solicitors Office (Crown) Danny Eid Lawyers (Offender) File Number(s): 15/297019 Publication restriction: Not Applicable remarks on sentence 1. In the early hours of 11 October 2015, the offender, Sateki Siale, murdered his neighbour, Mr Kelly Ventigadoo, by slashing Mr Ventigadoo on the face and across the neck with a broken bottle on two occasions. 2. As a result of these acts, Kelly Ventigadoo suffered several sharp force injuries to the head and neck, and the complete severing of the jugular vein and the carotid artery. Kelly Ventigadoo died almost immediately as a result of extensive blood loss. 3. The offender was arrested at Campsie Police Station at about 4pm on Sunday 11 October 2015, when he surrendered to police. The offender claimed to have no memory of the events of the previous evening. He has been in custody since this time. 4. When the offender was arraigned in the Supreme Court on 3 December 2016, he entered a plea of not guilty to murder. When arraigned at the commencement of the trial on 25 July 2017, he maintained his not guilty plea but entered a plea of guilty to the offence of assault causing death whilst intoxicated. That plea was not accepted by the Crown in discharge of the indictment. 5. On 4 August 2017, the jury returned its verdict, finding the offender guilty of murder. 6. It is now time for the offender to be sentenced for his crime. 7. Section 19A of the Crimes Act 1900 provides that the maximum penalty for the offence of murder is life imprisonment. A standard non-parole period of 20 years applies. The maximum term of imprisonment and the standard non-parole period are guideposts to which a court must have regard in imposing a sentence: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27]. The standard non-parole period is not the starting point for an offence falling in the mid-range of objective seriousness: Madden v R [2011] NSWCCA 254 at [35]. Judicial Task on Sentencing 1. It is important before discussing the facts of this offence to remind myself and the community generally of the judicial task on sentencing. That is to say, how a judge, in each individual case, must go about the task of fixing a sentence which accords with the relevant legislation, the principles of the common law, and the factual circumstances of the offending. 2. In our system of criminal justice as it presently stands, I must exercise my discretion as to what sentence should be imposed upon the offender by applying well established principles of law to the process of fact finding. In summary, they are: 1. Where a person is convicted by a jury of a criminal offence, the responsibility of sentencing the offender for that offence rests with the judge; 2. It is the duty of the judge to determine the facts relevant to sentencing; 3. The primary constraint on a judge's power to find facts relevant to sentencing is that the view of the facts adopted by the judge must be consistent with the verdict of the jury; 4. The judge must be satisfied of any facts which are adverse to the offender beyond reasonable doubt. Where an offender has to establish fact, the onus is one on the balance of probabilities. See R v Isaacs (1997) 41 NSWLR 374 at 377-378; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1. 1. It is no part of the sentencing process, nor is it my function, to attempt to discern the basis upon which the jury reached their verdict. Rather, in sentencing the offender, I am obliged to engage in a process of fact-finding consistent with the jury's verdict, and it is upon the facts as I find them that I am to determine an appropriate sentence. 2. I will apply these principles in the course of determining an appropriate sentence for the offender. The Statutory Regime 1. The Parliament of New South Wales has expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others generally, and the offender specifically, from committing similar offences; to protect the community; to promote the offender's rehabilitation; to make the offender accountable for his or her actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of the offender. 2. These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of the offender and promoting the offender's rehabilitation, for example, are not always compatible. None of the purposes can be considered in isolation. 3. Section 21A of the Crimes (Sentencing Procedure) Act also requires the Court to take into account, where relevant, a number of aggravating and mitigating factors in determining an appropriate sentence. The legislation does not require the Court to increase or decrease a sentence because of the presence or absence of these factors: s 21A(5). Common Law Principles 1. Over time, the courts have developed legal principles to guide the exercise of the sentencing discretion by judges. These common law principles are to be found in decided cases. 2. In summary, the common law principles include: 1. Proportionality: the sentence should be proportionate to the gravity of the offences: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ; 2. Parity: any difference between sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance and the appearance that justice has not been done: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 623 per Dawson J, Wilson J agreeing; 3. Totality: when a person stands for sentence for a number of offences, the Court must look at the totality of the criminal behaviour and determine what the appropriate sentence is for all of the offences; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; and 4. Avoidance of double punishment: a person should not be punished twice for the same conduct: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. 1. These common law principles have continuing relevance because s 21A(1) of the Crimes (Sentencing Procedure) Act preserves the entire body of judicially developed sentencing principles: Muldrock at [18]. As well, factors established by the common law as being relevant to sentence, such as whether incarceration may be particularly burdensome, are also to be taken into account: Muldrock at [19]. 2. What the sentencing task requires of a judge is that they have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, and the aggravating and mitigating factors, as well as the principles of the common law. Against that legal framework, the sentencing judge has to identify, and discuss the significance of, all the relevant factual circumstances of the offending and the offender. The sentencing judge is then in a position to undertake an 'instinctive synthesis', whereby the judge "makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [51]; Muldrock at [26]. As the 'instinctive synthesis' approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence. 3. I will bear in mind the legislation by which I am bound and the common law principles developed by the courts when proceeding on the task of sentencing the offender. The Facts 1. The deceased, Kelly Ventigadoo, was 45 years old at the time of his death. He lived in an apartment at 31 Garrong Road, Lakemba which was across the road from the offender's home. He is the father of two children who were 17 and 13 years old at the time of the murder. 2. The offender was born in 1991 and was 24 years old at the time of the offence. He lived at 34 Garrong Road, Lakemba, with his father, Mr Sosaia Siale, his mother, Mrs Suliana Siale, and his four siblings. He is now 26 years old. 3. On the morning of Saturday 10 October 2015, the offender woke up at the house of his girlfriend, Ms Jessica Edwards, in Ashfield. The offender and Ms Edwards had breakfast together in Marrickville, and then they drove to the offender's residence at 34 Garrong Road, where they cleaned the offender's room. 4. Later that afternoon, the offender and Ms Edwards drove to Coles in Greenacre, where they purchased some grocery items, and then returned to Garrong Road. Ms Edwards remained at Garrong Road for a time before leaving at about 4pm. She and the offender made loose plans to meet up later that evening. 5. At approximately 6:30pm that evening, Ms Edwards and the offender exchanged text messages. Ms Edwards learnt that the offender was in the garage at the home of his cousin, William Siale. That garage opened onto Redman Lane in Belmore. 6. Around this time, Kelly Ventigadoo, Mrs Ventigadoo, Mr Ventigadoo Snr, and a friend, drove to the Souths Juniors Club at Kingsford to spend an enjoyable social evening together. 7. At 7:30pm, the offender and his friend, Mr Keifer Hennings, attended the bottle shop at the Belmore Hotel and purchased a carton of Corona beer which contained 24 individual bottles, and a packet of chips. This was recorded by two separate CCTV cameras located within the bottle shop. 8. Just before 9pm, Ms Edwards arrived at the garage at Redman Lane, having left her residence at Ashfield approximately 20 minutes earlier. When she arrived, she observed the offender's car, a Holden Colorado Ute, to be parked in Redman Lane. She sent a text message to the offender, who came out of the garage to meet her. After some discussion with the offender, Ms Edwards then entered the garage and observed two others to be present – a Mr William Malik and Mr Keifer Hennings. Over the course of the evening, Ms Edwards observed another two males and two females to arrive. 9. During this time, Ms Edwards did not drink any alcohol. However, she observed the accused drinking Corona beers, and also drinking from a large, 1 litre bottle of bourbon which was half full. In her evidence, she gave a rough estimate that the offender drank about 10 beers from the case of Corona beer which the offender and Mr Hennings had purchased. When another case of Corona beer was brought to the garage by those who later arrived, she thought that the offender drank another 6 Corona beers from that case. She did not give any evidence from which I could draw a firm conclusion about how much of the bottle of bourbon was consumed by the offender over the course of the evening. 10. She also saw the offender snort a white powder which was offered to him by a young man present in the garage. Ms Edwards noted that the accused was less like himself and more erratic once he had snorted the white powder. There is no evidence as to what the white powder was. 11. Ms Edwards' evidence, and the observations made by the offender's mother, was the only evidence presented at the offender's trial which went to the issue of intoxication at the time that the offender murdered Kelly Ventigadoo. No blood or urine sample was taken from the offender upon his arrest the following day. 12. Ms Edwards said that during the offender's time drinking in the garage on Redman Lane, he became incoherent and was not able to form complete sentences. When Ms Edwards left the garage with the offender at 12:25am in the early morning of Sunday 11 October 2015, she had to physically assist the offender to get into the passenger seat of her car. 13. Once Ms Edwards had begun driving her car away from Redman Lane, the offender opened the car door, Ms Edwards brought the car to a rapid halt and the offender vomited out of the car door and onto the footpath. Ms Edwards then drove on and with the offender, arrived at Garrong Road at 12:30am, where she parked her car just near the driveway between 34 and 36 Garrong Road. Relatives of the offender's family lived at 36 Garrong Road. 14. The offender did not get out of the passenger seat of the car initially. Ms Edwards left him in the car and walked down the driveway of 34 Garrong Road to use the toilet. Whilst Ms Edwards was walking down the driveway, she heard the sound of a car door closing. 15. Ms Edwards turned around and saw the offender "staggering" away from her car, towards 31 Garrong Road. Soon after, Ms Edwards heard shouting and the sound of glass smashing coming from the direction of 31 Garrong Road. Ms Edwards looked towards the noise and saw a man with whitish-grey hair, but she did not see the offender. Ms Edwards did not go and investigate but rather told the offender's father, Mr Sosaia Siale, who walked out onto Garrong Road. 16. Shortly prior to the offender arriving home, Kelly Ventigadoo, Mrs Ventigadoo and Mr Ventigadoo Snr had returned from the Souths Juniors Club. Mrs Ventigadoo was driving, and she parked her car in the driveway of 31 Garrong Road, with the front of the car facing the garage of 31 Garrong Road. Kelly Ventigadoo and his parents went up to his apartment where they remained for 15 minutes or so. They then returned to Mrs Ventigadoo's car and stood around the car, talking. Mr Ventigadoo Snr and Kelly Ventigadoo were smoking a cigarette. 17. Mrs Ventigadoo first noticed the offender walking towards them when he was about 4 or 5 metres away. She did not recognise him because she had never seen him before. He had an empty bottle of beer in his hand. 18. In order to arrive in the vicinity of the Ventigadoos, the offender had opened the passenger-side door of Ms Edward's car, alighted, closed it and had then walked approximately 40 metres to the front of the block of apartments at 31 Garrong Road carrying a Corona beer bottle in his hand. He had not fallen over, nor did he appear to Mrs Ventigadoo in the brief time she saw him to be intoxicated. 19. As the offender approached the Ventigadoos, he said, "What the fuck you talking loud for? This is my street. I live here". Mrs Ventigadoo observed from the tone of the offender's voice that he was angry. She had no difficulty in understanding the words that the offender was using. 20. At this point in time, the offender was standing next to a low brick wall into which were built several letterboxes. Mrs Ventigadoo was on the same side of the car as the offender, standing between him and Kelly Ventigadoo. Mr Ventigadoo Snr was on the far side of the car. In response to the offender's remark, Mrs Ventigadoo said to him, "Go home, we're actually leaving". 21. Kelly Ventigadoo then said words to the effect of, "It's okay, I live here too". The offender replied, "What the fuck you said"? The offender then deliberately smashed the beer bottle on the corner of the brick wall containing the letter boxes. He then approached Kelly Ventigadoo by moving between the car and Mrs Ventigadoo, who put her hands on the offender's chest in an attempt to stop him, and again told him to go home. The offender continued past Mrs Ventigadoo and struck Kelly Ventigadoo with the broken beer bottle, slashing the left side of Kelly Ventigadoo's face. 22. This first strike inflicted a semi-circular cut involving Kelly Ventigadoo's lower left ear and the left side of his neck. The wound went upwards and backwards and terminated behind the left ear, at the level of the lower third of the ear. The overall length of this cut was 8.3cm and it measured up to 1.5cm in depth. There was extensive exposure of the underlying soft tissue, and a smaller branch of the external carotid artery was completely severed. 23. This strike also caused a transverse gaping cut on the left side of Kelly Ventigadoo's neck, which measured 10.5cm in length and 1.2cm in depth. This sharp force wound was accompanied by a shallower cut above it. This wound caused a sharp injury to the underlying strap muscles on the side of the neck, and it completely cut the superficial jugular vein. 24. I am satisfied that both of these wounds on the left side of Kelly Ventigadoo's face were caused by the first strike inflicted by the offender upon Kelly Ventigadoo. 25. As a result of this strike, Kelly Ventigadoo fell against Mrs Ventigadoo's car, and slid downwards to a seated position on the ground. He was bleeding profusely. The offender did not say anything or go anywhere; he remained standing in the spot from where he had inflicted the first strike. 26. Kelly Ventigadoo was holding his ear in an attempt to stem the bleeding. After a short time, he stood up, and said to the offender "Why did you do that"? The offender did not reply. Instead, the offender hit Kelly Ventigadoo again with the glass bottle to the other side of his face. 27. This second strike caused a gaping cut along the jawbone on the right side of Kelly Ventigadoo's face, which measured 8cm in length and up to 1.4cm in depth. There were also numerous associated smaller sharp injuries involving the right side of the chin, some of which pierced the oral cavity. There was also extensive soft tissue injury, which caused obvious blood loss. 28. Kelly Ventigadoo fell to the ground and struck his head heavily on some rocks in an adjacent garden bed. This heavy collision caused a number of bony fractures to his face and skull. Kelly Ventigadoo did not get back up after being struck a second time. He remained on the ground where he fell. 29. Having inflicted these injuries upon Kelly Ventigadoo, the offender stepped over Kelly Ventigadoo's body and walked at a normal pace away from the scene and back up along Garrong Road towards his home. 30. Ms Edwards, who was standing outside the offender's home, observed the offender "walking" down the road towards where she was. The offender's father, Mr Sosaia Siale, was yelling angrily at the offender in Tongan. The offender walked past Ms Edwards and entered the front pathway of 40 Garrong Road, and returned towards his house by crossing the front of 38 Garrong Road and climbing over the dividing fence to get to the back of 36 Garrong Road, where he was found by Ms Edwards and his mother, Mrs Suliana Siale. 31. The offender was observed by Ms Edwards and Mrs Siale to have cuts to his hand and to have blood all over his hands. Mrs Siale assisted the offender to wash the blood from his hands, and then she, with the assistance of Ms Edwards, helped the offender into the front passenger seat of her car. Mrs Siale, with Ms Edwards, drove the accused away from the scene. She eventually dropped Ms Edwards at her home in Ashfield, and then drove herself and the offender, via an indirect route and after changing vehicles, to her sister's house in Campbelltown, where they both spent the night. 32. Immediately after the second assault upon Kelly Ventigadoo, Mrs Ventigadoo sought the assistance of a neighbour, who called 000. Police and ambulance officers arrived at the scene shortly after, but were unable to save Kelly Ventigadoo. He had died almost instantly from extensive blood loss. 33. Later that morning, probably around 11am, the offender was woken by Mrs Siale, who informed him that she believed that he had been involved in a death which had occurred at Garrong Road the previous evening. He responded with surprise. When Mrs Siale asked the offender if he had any memory of the previous evening, he replied that he did not. 34. Mrs Siale then determined that she would take the offender to Campsie Police Station. After unsuccessfully attempting to seek medical advice from several medical centres, Mrs Siale, accompanied by Ms Edwards, drove the offender to Campsie Police Station at approximately 3:30pm on the afternoon of Sunday 11 October 2015. 35. The offender was arrested and charged with the murder of Kelly Ventigadoo shortly before 4pm on that day. He participated in several forensic procedures and received medical attention at Canterbury Hospital, where the cuts to his hand were stitched and dressed. The offender participated in a recorded interview with police in the early hours of Monday 12 October 2015. In that interview he said that he had no memory of the events of the night before. The Intention of the Offender 1. It is now necessary to consider and determine, if possible, the intention with which the offender attacked the deceased. I am satisfied on the evidence, that the offender was heavily intoxicated. He exhibited some signs of that intoxication. However, the evidence is not sufficient to enable me to draw a precise conclusion as to the likely level of alcohol in the offender's blood at the time of the fatal assault. That is largely because the expert evidence, which established blood alcohol levels, depended upon an assumption of fact that the offender had consumed half a bottle of bourbon. The evidence did not enable such a finding to be made. 2. However, although the offender was heavily intoxicated, it was clear that he was still able to form an intention at the time of the attack sufficient to constitute the offence of murder. He decided that he would smash the bottle to create a weapon to be used, he decided to target the deceased, and did so by stepping around Mrs Ventigadoo. 3. I am satisfied, in light of the offender's intoxication, and his actions, that he intended to cause grievous bodily harm to the deceased. The Crown has not persuaded me to the requisite standard that the offender intended to kill the deceased. 4. Although the fact that the offender attacked the deceased for a second time after he stood up, would tend to support an inference that the offender intended to kill the deceased, in the absence of any specific statement being made by the offender, or any statement being made by him recording such an intention, and having regard to his state of sobriety, I could not conclude that he had an intention to kill the deceased. 5. Although his heavy intoxication does not prevent my finding that he had an intention to cause grievous bodily harm, it is nevertheless relevant when the Court comes to consider the extent of the offender's moral culpability for the offence. That is because as the expert evidence discloses, when a person, such as the offender, is heavily intoxicated, their ability to think clearly, make reasoned decisions and understand the implications of their actions, are severely impaired. Objective Seriousness 1. It is necessary to assess the objective seriousness of the offence. This assessment is made without reference to matters personal to the offender, but by reference to the nature and circumstances of the offending: Muldrock at [27]. The Crown submitted that the Court would find that this offence fell within the middle of the range of objective seriousness in comparison to other offences of murder. This does not mean that the offence is not serious. 2. The offender's counsel submitted that, having regard to the offender's intoxication and his lesser moral culpability, the Court would be persuaded that the seriousness of his crime was to some extent ameliorated. 3. I have considered these factors and, allowing for the fact that the offender's capacity to make rational decisions was diminished, and that the offender's intention was not to kill, but rather to cause grievous bodily harm, I am satisfied that this offence falls in the middle of the range of objective seriousness for offences of murder. Statutory Considerations 1. It is necessary to consider the aggravating and mitigating factors which s 21A of the Crime (Sentencing Procedure) Act requires the Court to take into account. Aggravating Factors 1. The offence involved the actual use of a weapon, namely the broken beer bottle. This is an aggravating factor: s 21A(c). However, having regard to the central facts of the offence for which the offender will be sentenced, care must be taken to avoid double-counting by including this use of a weapon as a discrete, aggravating factor. I will take the use of a weapon into account as part of the overall circumstances of the offence, and not as a discrete aggravating factor. 2. It is an aggravating factor, pursuant to s 21A(d) of the Crimes (Sentencing Procedure) Act, if the offender has a record of previous convictions particularly if, in being sentenced for an offence such as murder, the offender has a record of previous convictions for serious personal violence offences. A serious personal violence offence is a personal violence offence which is punishable by imprisonment for a term of 5 years or more. 3. Four days after his 18th birthday, the offender committed the offence of aggravated robbery and intentional damage to property in the early hours of a Saturday morning at Lakemba. For this offence he was sentenced in March 2010 to a term of imprisonment of 2 years with a non-parole period of 12 months. That term of imprisonment was ordered to be served by way of periodic detention. He was also subjected to a fine, for a minor offence of intentionally damaging property. 4. Those offences, according to the material put before the District Court, were committed at a time when the offender was very drunk, having consumed about one case of beer and some shots of spirit. He had been drinking for about four hours on that evening. He had little recall of the evening. He had little, if any, recall of the events giving rise to his conviction. 5. Just a few months later, the offender was found guilty of the offence of affray and a bond was imposed on him. Ultimately, because of two further offences of common assault committed in 2010 and 2012, that bond was breached and the offender ended up serving a term of 8 months imprisonment in 2013 by way of an Intensive Corrections Order. 6. The offences of aggravated robbery and of affray are serious personal violence offences and, accordingly, constitute an aggravating factor with respect to sentencing for the purposes of the legislation. 7. I do not regard this aggravating factor as increasing the objective seriousness of the offence for which the offender is to be sentenced. It is nevertheless appropriate to take into account these previous offences when considering whether the objects of sentencing, including deterrence and the protection of society, warrant a more severe sentence than would otherwise be imposed: R v Shankley [2003] NSWCCA 253 at [31] per Howie J (Greg James J and Smart AJ agreeing). 8. These two convictions engage two common factors. First, the offences were committed in circumstances where the offender had consumed an excessive amount of alcohol. Secondly, the victims of these offences were unknown to the offender, were innocent, and did not provoke the conduct which the offender inflicted upon them. These features were present in the murder of Kelly Ventigadoo. 9. The offender's previous record of criminal convictions disqualifies him from the leniency to which he would otherwise be entitled if he was a person of good character with no prior convictions: s 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act. Mitigating Factors 1. It is a mitigating factor if the offence was not part of a planned or organised criminal activity: s 21A(3)(b). This offence was not a planned or organised criminal activity. I take this mitigating factor into account. 2. It is a mitigating factor if the offender is unlikely to re-offend: s 21A(3)(g). This is a matter for the offender to prove to my satisfaction on the balance of probabilities. This offence occurred whilst the offender was heavily intoxicated. I am not prepared to make a firm finding at this stage that the offender is unlikely to re-offend. That is because his history demonstrates that if he reverts to heavy use of alcohol, then he tends to behave irrationally and criminally. His prospects of not re-offending are entirely dependent upon his capacity to refrain from drinking alcohol to excess. It is simply not possible to tell whether he will or will not refrain from drinking alcohol after release from a custodial sentence. Accordingly, I cannot conclude that he is unlikely to re‑offend. 3. It is a mitigating factor if the offender has good prospects of rehabilitation: s 21A(3)(h). I am satisfied that the offender has good prospects of rehabilitation. That is so for a number of reasons. The offender is relatively young and, with maturity, it is likely that he will come to understand that his behaviour is unacceptable in a rational and ordered society. As well, he has, since being in custody, received counselling and assistance from Chaplain Tukutama. He has been well-behaved in prison and has undertaken and successfully completed a number of courses of study. Given the length of his prospective sentence and the fact that he will be supervised in the community afterwards, I have been persuaded that his prospects of rehabilitation are good. 4. It is a mitigating factor if an offender has shown remorse, but only if the offender has provided evidence that he has accepted responsibility for his actions and has acknowledged any injury, loss or damage caused by him: s 21A(3)(i). I am satisfied that the offender has demonstrated remorse. He has given evidence, which I accept, that he accepts responsibility for his actions and has acknowledged the injury, loss and damage which he has caused. 5. I will take each of these mitigating factors into account in the determination of the appropriate sentence. 6. As well, s 22A of the Crimes (Sentencing Procedure) Act permits the Court to reduce a penalty which would otherwise be imposed where an offender has facilitated the administration of justice by the way in which his defence of the charges has been undertaken. I accept that, by the way in which the offender's counsel conducted the trial, including by not putting a substantial body of evidence in dispute, a lesser penalty should be imposed than would otherwise have been the case. It is not appropriate in the circumstances to specify what that discount is. Subjective Circumstances of the Offender 1. As indicated earlier, the offender is a relatively young man. He is one of five children of Tongan parents, both of whom have full-time employment. He was educated to Year 12 and achieved a reasonably good pass in his Higher School Certificate. He had no significant behavioural difficulties at school. He engaged in a range of sports at which he was quite good. He has always been in employment whilst at High School and since leaving school. At different times he has held two jobs and has worked very hard. 2. His eldest brother was incarcerated in 2009 for drug offences. This has had an adverse impact on the offender. 3. Recent psychiatric reports suggest that at the time of the offence, the offender was suffering from a major depressive disorder relating to the shooting and near death of a cousin, the death of his grandmother, the loss of a job and the suicide of another cousin. He was not being clinically treated for this constellation of symptoms. There was no evidence of any psychosis at the time of the offending. The evidence does not suggest that the depressive disorder was causative of, or in any way relevant to, the offence, and it is not suggested that it reduces his moral culpability. However, it does appear that the offender drank to excess in an attempt to alleviate some of the symptoms of depression. 4. The expert evidence also suggests that the offender is presently suffering some mental health issues which are being adequately medicated. There is nothing about the offender's depressive disorder, nor his present mental health state, which would impact upon the question of general deterrence, nor that any sentence would weigh more heavily upon him: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; R v Barbieri [2016] NSWCCA 295 at [53]. 5. Overall, the clear impression is that the offender is still a relatively young and immature man who comes from a large family. He is supported strongly by his mother and his younger siblings. There is nothing about his background which explains or justifies what occurred on this night. What occurred on this occasion was simply a product of excessive alcohol intake combined with a tendency to violence and unrestrained anger. 6. He intended to cause grievous bodily harm to the deceased and his actions caused the deceased's death. He offered no real explanation for this offence, and there is nothing in his subjective circumstances which explains what occurred. His subjective circumstances nevertheless remain a relevant consideration. Victim Impact Statements 1. The Court received victim impact statements from the parents of Mr Ventigadoo and from his children. Each of these statements palpably demonstrated the significant harm and distress which was caused by the death of the deceased. 2. Pursuant to s 28(4) of the Crimes (Sentencing Procedure) Act, I consider that it is appropriate to take these statements into account. I do so on the basis that the harmful impact on the parents and children of the deceased is an aspect of the harm done to the community as a whole. Sentencing 1. The prime consideration in sentencing the offender for this offence is that murder involves the criminal taking of a human life. It represents a complete violation of the sanctity of human life, which is a concept at the heart of a civilised community. Any conviction for murder warrants a substantial sentence because the purposes of punishment and general deterrence are of significant importance. In the offender's case, the purpose of punishment is significant as is the need to specifically deter the offender from engaging in further crimes of violence. Ultimately, the sentence imposed must be one which reflects the gravity of the offence. 2. This murder was a most violent crime. The deceased had his face, neck and throat slashed which led to significant wounds, and almost instant death. His and his mother's protestations to the offender were ignored. The deceased was entirely innocent in the exchange which occurred. He did nothing to provoke the offender's fatal attack on him. The offender's conduct was simply inexplicable and entirely unjustified, or unjustifiable. He was quite unable to control his anger at what he perceived, apparently, as inappropriate behaviour occurring in his neighbourhood. No doubt his intoxication reduced his capacity to make rational decisions. Ultimately, this was a senseless and violent killing of an innocent bystander, with the consequence that the Ventigadoo family has lost a son and father, and the community has lost a valuable citizen. Condign punishment is necessary. 3. I am satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. 4. Having regard to the circumstances in which the offence occurred, I am satisfied that this offender will need a longer than usual period of supervision upon his release in order to ensure that he refrains from drinking alcohol and that he is able to reintegrate peacefully into the community. Sentence 1. I have now discussed all of the factual elements for sentence, including the relevant subjective circumstances of the offender, and it is necessary to make a value judgment as to the appropriate sentence to impose for the offence. 2. The murder was a serious offence which, as I have held, fell within the mid‑range of objective seriousness. I determine the appropriate sentence for that offence to be one of 24 years imprisonment with a non-parole period of 17 years. Commencement Date 1. The offender was taken into custody on 11 October 2015 and he has been in custody with respect to this offence since that time. The sentence for this offence should commence on that date. Offence of Serious Personal Violence 1. I am required to warn the offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offence of murder, of which he has been convicted and for which he is about to be formally sentenced. At some future point in time, an application may be made that, notwithstanding the completion of his sentence, the offender should continue to be detained or else be subject to an Extended Supervision Order impacting upon his liberty. Sentence 1. Sateki Siale, I impose upon you the following sentence, namely that for the offence of the murder of Kelly Ventigadoo a term of imprisonment comprising a non-parole period of 17 years to commence on 11 October 2015, with a balance of term of 7 years. 2. You will not be eligible for release before 10 October 2032. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017