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Supreme Court 14 December 2022

R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET

[2022] NSWSC 1696

Assault & violenceHomicidePublic order & justice offences
CRIME SENTENCE FIVE CO OFFENDERS ANOTHER CO PLEAS OF AFFRAY AND MANSLAUGHTER

Citation: R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696
Court: Supreme Court of New South Wales
Date: 14 December 2022
Judge: Davies J

Background

On 24 May 2019, a young man named Alex Ioane was killed at a 16th birthday party in Ingleburn, New South Wales. The party had been arranged through Airbnb and hosted approximately 80 guests. During the evening, a series of altercations broke out, culminating in a fatal group attack on the deceased, who had no gang affiliations. He was punched to the ground and then kicked and stomped on by multiple attackers while lying motionless on the road. He died from a traumatic basal subarachnoid haemorrhage.

Six individuals were ultimately charged with murder. One, Tafuna Taumalolo, had already pleaded guilty to murder and was sentenced to 18 years and 10 months' imprisonment in November 2021. The remaining five accused were due to stand trial in June 2022, but on 1 July 2022 they entered alternative pleas that the Crown accepted in full satisfaction of the indictment. ST pleaded guilty to manslaughter, and the remaining four (Suliasi Taumalolo, Mateaki Taumalolo, ET, and Sione Mayol) pleaded guilty to affray.

The five offenders came before Davies J for sentencing in December 2022. Several were young men at the time of the offending, and two of the offenders (ST and ET) were juveniles. The court had to determine appropriate sentences reflecting each offender's individual role while accounting for the collective nature of the violence.

  • What sentences were appropriate for manslaughter and affray given the varying degrees of individual participation in a group attack?
  • How should moral culpability be assessed and differentiated among co-offenders who played distinct roles in a joint criminal enterprise?
  • Whether special circumstances existed to justify two juvenile offenders serving their sentences as juvenile offenders rather than in adult correctional facilities.
  • How guilty plea discounts applied to each offender, given the late stage at which pleas were entered.
  • How time already spent in custody on remand (originally for murder) should be accounted for in the final sentences.

Decision

Davies J examined the role of each offender in detail. ST, who had kicked and stomped on the deceased multiple times while he lay motionless, was sentenced for manslaughter. His conduct was characterised as a serious contribution to a joint criminal enterprise that caused death. ET, who arrived armed with a baseball bat, swung it toward the group surrounding the deceased, and made aggressive threats, was sentenced for affray. Suliasi and Mateaki Taumalolo, who punched the deceased during the attack (with Mateaki also kicking him repeatedly as he lay on the ground), were each sentenced for affray. Sione Mayol, who joined the surrounding group while the deceased was being kicked and stomped, was also sentenced for affray.

The court emphasised that the collective conduct of the group was a significant aggravating feature. Davies J noted that where multiple offenders act together in a violent group attack, the conduct of the participants will not always call for sharp differentiation in penalty. The wider impact of the violence on bystanders, including a young woman who threw herself over the deceased to protect him and was kicked in the head in doing so, was also treated as relevant to assessing the seriousness of the affray offences.

On the question of juvenile offenders, the court was satisfied that special circumstances existed justifying orders that ST and ET serve their sentences as juvenile offenders under the Children (Criminal Proceedings) Act 1987 (NSW). Davies J noted the risks of placing young men in adult correctional facilities and the importance of rehabilitation for youthful offenders. The court also acknowledged the practical complication that several non-parole periods had already expired before sentencing because all five offenders had been held on remand for murder until the alternative pleas were entered in July 2022.

Each offender received a discount on their sentence for their guilty plea, although the lateness of those pleas was reflected in the extent of the discount applied. The court applied a discount of approximately 10% for ST's plea to manslaughter and similar discounts for the affray offenders, reflecting the pleas being entered on the eve of trial rather than at an early opportunity.

Orders Made

  • ST: Convicted of manslaughter. Sentenced to imprisonment with a non-parole period of 4 years and 1 month commencing 26 August 2019 and expiring 25 September 2023, with a balance of term of 2 years and 8 months expiring 25 May 2026. Ordered to serve the sentence as a juvenile offender.
  • ET: Convicted of affray. Sentenced to imprisonment with a non-parole period of 2 years commencing 20 March 2020 and expiring 19 March 2022, with a balance of term of 1 year and 4 months expiring 19 July 2023. Ordered to serve the sentence as a juvenile offender.
  • Suliasi Taumalolo: Convicted of affray. Sentenced to imprisonment with a non-parole period of 2 years and 3 months commencing 14 July 2020 and expiring 13 October 2022, with a balance of term of 1 year and 6 months expiring 12 April 2024. Eligible for parole.
  • Mateaki Taumalolo: Convicted of affray. Sentenced to imprisonment with a non-parole period of 2 years and 4 months commencing 15 September 2020 and expiring 14 January 2023, with a balance of term of 1 year and 5 months expiring 14 June 2024. First eligible for parole 14 January 2023.
  • Sione Mayol: Convicted of affray. Sentenced to imprisonment with a non-parole period of 1 year, 1 month and 25 days commencing 18 May 2021 and expiring 12 July 2022, with a balance of term of 1 year, 7 months and 5 days expiring 16 February 2024.

Key Takeaways

  • In group violence resulting in death, a sentencing court may assess the collective nature of the attack as a significant aggravating feature, even where individual offenders played different roles and were charged with different offences.
  • Where multiple participants act together in a fatal assault, the moral culpability of each offender falls to be assessed individually, but their conduct as part of a group will not always produce sharply differentiated penalties across co-offenders.
  • Under the Children (Criminal Proceedings) Act 1987 (NSW), the Supreme Court confirmed it retains a discretion to order that a young offender serve a sentence as a juvenile offender where special circumstances exist, including the risks associated with placing young men in adult correctional facilities.
  • Guilty pleas entered on the eve of trial, rather than at an early opportunity, attract a reduced discount compared to early pleas, a principle applied consistently across all five offenders in this matter.
  • Time spent on remand for a more serious charge (murder) that does not ultimately proceed to conviction is accounted for in fixing non-parole periods, even where this results in those periods expiring before the sentencing date.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22B
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 16, 18, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 30E

Cases:
- Buckley v R [2022] VSCA 138
- KT v The Queen [2008] NSWCCA 51; (2008) A Crim R 112
- Khanwaiz v R [2012] NSWCCA 168
- R v Ali [2005] NSWSC 334
- R v Eleter [2003] NSWCCA 130
- R v Huynh; R v Lam; R v Ta [2000] NSWCCA 18
- Stevens v R [2007] NSWCCA 152