IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-19-02523

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MOANA ULUTUI		

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JUDGE:	HER HONOUR JUDGE RIDDELL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	7 September 2022; 4 April 2023; 29 June 2023	
DATE OF SENTENCE:	29 June 2023	
CASE MAY BE CITED AS:	DPP v Ulutui 	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1120		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW --- Sentence 
Catchwords: 	Extortion --- Common Law Assault --- Theft --- Three co-offenders --- Youthful offender --- Difficult Background --- Serious Prior Criminal History --- Risk of Institutionalisation --- Mild intellectual disability --- Availability of Justice Plan --- Late plea of guilty --- Totality --- Parity
Legislation Cited:	Sentencing Act 1991 
Cases Cited:	Bugmy v The Queen [2013] HCA 37 --- R v Verdins & Ors [2007] VSCA 102 --- DPP v Drake [2019] VSCA 293 --- Jawarhiri v The Queen [2021] VSCA 287 ---- DPP v Hermann [2021] VSCA 160 --- Eser v The Queen [2021] VSCA 287 --- Ryder v The Queen [2016] VSCA 3 --- Azzopardi v The Queen [2011] VSCA 372 --- R v Mills [1998] 4 VR 235 --- Worboyes v The Queen [2021] VSCA 169 --- Boulton v The Queen [2014] VSCA 342 --- R v Dunn [2020] VSC 708
Sentence:	Aggregate 2 years and 3 months imprisonment. 
	Community Correction Order with a term of 27 months (commencing upon release from custody). 

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions	
			
For the Accused	Ms N. Freijah	Emma Turnbull Lawyers	

HER HONOUR:
1	Moana Ulutui, on 15 July 2022 you pleaded guilty to one charge of extortion with a threat to inflict injury, one charge of common law assault and one charge of theft.
2	Following a three-week trial, your co-accused Daniel Tonkin, Krishneil Chand and Dusan Javanov, were each found guilty by jury on 15 March 2022 of each of those three offences plus one charge of kidnapping.
3	You were all variously involved in an attempt to extort money from Mr Alex Kovac between 10 and 11 April 2019.  Mr Kovac was kidnapped and detained at two houses.  He was tied to a chair, physically assaulted and threatened with weapons.  You took his belongings from him and made him call his parents to seek payment of $30,000 to secure his release.
4	At the time of the offending, you were 21 years old.  Your co-accused were then aged 26, 24 and 34 years old respectively.  Alex Kovac was 24 years old.  You are now aged 25 years old.
What are the facts
Background
5	By way of background, Mr Kovac lived in New South Wales and came to Melbourne to undertake rehabilitation for drug addiction.  In late 2018 he became friends with Mr Tonkin, moving in with him and his mother.  You met Mr Kovac through Mr Tonkin.
6	On 4 April 2019 Mr Kovac asked his mother, Louise Kovac, for $5,000 to pay drug debts.  She paid $5,000 to his bank account.  That money was spent partly on the debt, but also on more drugs, gambling and buying clothing for himself and Mr Tonkin.
7	Mr Kovac and Mr Tonkin had a falling out because Mr Kovac felt he was being used for his money.  On 9 April 2019 Mr Kovac moved to the Sandown Park Motel.
8	You and a male called Leon attended at the motel, and you were given money by Mr Kovac to buy drugs.  You returned with the drugs, and smoked methamphetamine and GHB with Mr Kovac.  You and Mr Kovac then went to play the pokies.  Mr Chand also attended at the motel.
9	Mr Kovac gave you money a second time to buy more drugs for the group, but you did not return, nor did you respond to Mr Kovac's attempts to contact you.  Mr Kovac felt angry and betrayed.
10	Meanwhile Leon had used Mr Kovac's laptop and it appears he attempted to purchase items on it.  Louise Kovac received notification from her bank of suspicious transactions and rang her son.  He immediately formed a view that Leon was responsible.
The offending
11	On 10 April, you messaged Mr Kovac telling him to meet at Waverley Gardens Shopping Centre.  Mr Kovac and Leon arrived at the shopping centre, but Leon soon disappeared.  Mr Kovac tried to call you but could not reach you.  He then called Mr Chand, who said that he would try and contact you.  Mr Kovac then called Mr Tonkin for a pickup from the shopping centre, despite their falling out, as he did not know anyone else in Victoria.
12	Mr Tonkin picked up Mr Kovac and drove him to the first house, at an address unknown to Mr Kovac.  Mr Chand followed in another car.  En route they spotted Leon, and Mr Kovac and Leon had an altercation before returning to the car with Mr Tonkin.
13	Once they arrived at the first house Mr Kovac followed Mr Tonkin into a room at the rear of the house, which had a couch and a chair.  Mr Chand followed behind.  Mr Javanov was present and Mr Kovac got the impression it was his house.  They had never met.  Mr Javanov immediately pushed Mr Kovac down into the chair.  He was tied to the chair around the torso and by the arms and hands.  A ripped shirt or towel was tied as a gag around his mouth.
14	Those events form the basis of the kidnap charge.  I make clear I am not sentencing you in relation to kidnapping Mr Kovac.  You played no part in that offence.  It is part of the background to your offending.
15	Similarly, you are not responsible for the initial assault on Mr Kovac once in the chair.  Once in that position Mr Kovac was struck to the face and head multiple times by Mr Chand and Mr Javanov.  He was struck to both eyes and the nose area.  His face was swollen 'pretty quickly' and he had trouble hearing from his right ear.  Ultimately he was diagnosed with a perforated eardrum.
16	Mr Chand told Mr Kovac that he was 'a dickhead' and that he should have let him speak to Leon about the disputed transactions.
17	Mr Kovac gave evidence that there were a number of tools on the floor in a corner of the room.  They included an axe, a crowbar, lump hammer, regular hammer and a few other hand tools.  At one point Mr Chand told Mr Javanov to get out the tools.  Mr Kovac was told to pick one, and chose the crowbar.  The crowbar was held against his knee in a threatening way, and the believed he was going to be kneecapped.  Again, those events predate your arrival.
Charge 1 – Extortion; Charge 2 – Common Assault; Charge 3 – Theft 
18	But it is around this time that you, Mr Ulutui, arrived with an unknown male.  The room was rearranged and Mr Kovac was moved to the back corner, with the couch positioned between him and the door.  You started going through Mr Kovac's bags, taking out his belongings.  You took his phone and, after asking Mr Kovac for the password, began looking through it.  A Snapchat video taken on your phone shows a person scrolling through Mr Kovac's phone to see passwords, and screenshots of a list of passwords were taken.  Mr Kovac did not see his personal items after that day.  That conduct forms the basis of Charge 3 – Theft.
19	You also signed Mr Kovac out of his iCloud accounts on both his laptop and phone, apparently so that his whereabouts could not be traced.
20	Mr Chand then told Mr Kovac that he wanted $50,000 'for wasting their time'.  Mr Kovac said there was no way he could get that amount, and so Mr Chand reduced the amount to $30,000.
Phone calls
21	It is apparent that the expectation was Mr Kovac would contact his parents to try and obtain the money.  A series of telephone calls were made between Mr Kovac and his parents for that purpose.  You played a lead role in those calls.
22	A number of the phone calls were recorded by Mr Kovac's father, William Kovac.  Images from a FaceTime call were recorded by his mother.  Mr Kovac also spoke to a family friend, Ms Geraldine Somers. 
23	Mr Kovac asked his parents to pay the $30,000 to ensure his release.  During the calls you and the other four offenders were present.  At various times the calls were muted while you all debated what Mr Kovac should say or gave him instructions.  You fabricated a story that Mr Kovac had broken into your home and stolen Rolex watches worth $25,000 and a car worth $30,000 as the reason the money was being demanded.  You held the phone for Mr Kovac to speak and it was you who spoke to his father, William Kovac, during various calls.
24	During the FaceTime call, William Kovac saw that his son was tied to a chair.  At various points during the calls Alex Kovac was struck to the face and head.  William Kovac saw his son being hit to the head.  The screenshots captured by his mother showed facial injuries.  Your plea of guilty to the assault relates to those acts during the phone calls.  
25	Mr Kovac gave evidence that during the FaceTime call you and your co-offenders were putting balaclavas or similar over your faces so that you could not be identified.
26	Both parents and Ms Somers variously describe Alex Kovac's demeanour during the calls as 'not happy', 'panicked', 'very stressed', 'a matter of urgency', 'very distraught and seemed scared', 'very frightened', 'crying', 'extremely upset and fearful'.
27	It is those demands and the threats in person and during the phone calls which constitute the extortion charge.
28	At one point Mr Chand produced a card which flipped out into a knife and threatened Mr Kovac between calls by pressing it up against his leg and arms and telling him to have the money sorted out by the time he got back.  Mr Kovac described him as aggressive and he believed he would use the knife.  He said he felt helpless and scared.
29	William Kovac telephoned Daniel Tonkin, late on the evening of 10 April to see if he knew anything about Alex's whereabouts.  Certain comments made him suspicious and it was after that call that William and Louise Kovac called the police and reported the kidnap of their son and that Tonkin was the last person who had contact with him.
Second location
30	At some time after that call and before a 10.20 pm call to his mother, Alex Kovac was moved from the first house.  He recalled one of you saying 'We’ve been here for too long.  We’ve got to move him.'  He was untied and escorted by Mr Tonkin to the car.  He said his eyes were swollen and he could not see.
31	At the second house Mr Tonkin gave Mr Kovac Seroquel to sedate him.  He was told he could not go anywhere until the money was paid.
32	The following morning Mr Tonkin told him police had attended at his home looking for Mr Kovac.  Tonkin was angry and made him call his parents from a phone box.  Mr Tonkin then left.  Mr Kovac woke later and realising he was the only one in the unit, made his way to the phone box.  Mr Javanov was present outside and told him to go back inside.  Mr Kovac went to sit on a step, with Mr Javanov keeping an eye on him.
33	A taxi arrived and Mr Kovac made his escape.  The driver took him to Sandringham Hospital where his mother and police were contacted.
Injuries
34	Mr Kovac sustained a number of injuries from the initial assault; a perforated right ear drum, bruising around both eye sockets, tenderness and swelling to his nose, bruising to the upper and lower lips, and mild tenderness and soft tissue injury to his left shoulder.  Photographs were tendered at the trial.
35	Initially, out of fear, Mr Kovac made up a false story when questioned by police.  It was not until several days later, when he was safely out of Melbourne, that he told police what had actually occurred.
Arrest and Interview
36	You were arrested on 18 April 2019.  You participated in a Record of Interview, denying any involvement in the offending and giving no comment answers to other allegations related to the incident.
37	Your iPhone was seized.  It contained the images of Mr Kovac's passwords along with the video of his phone.  Your phone and those of your co-offenders were all identified by phone tower information to be in the vicinity of the first house during the relevant period of the extortion.
38	In keeping with his statement to police and evidence at the committal hearing, during the trial Mr Kovac gave evidence positively identifying you and outlining your role, particularly in the phone conversations with his father.
39	You were remanded in April 2019 for this offending, and then granted bail in December 2019.  You were again remanded in August 2022.
Sentencing principles
40	This is a serious matter.  The maximum penalties for extortion, common law assault, and theft are 15, 5 and 10 years' imprisonment, respectively.
41	Principles of general deterrence, denunciation and just punishment are paramount in sentencing you.  That is, the sentence I impose must reflect the Court and the community's disdain for this type of violence.  It must deter others from resorting to violent aggression to resolve some perceived wrong.  It must work to achieve community protection both from you and from others who would behave in this way.
42	In your case the sentence I impose must act as a specific deterrent given your prior criminal history.
Victim impact
43	I have received a number of victim impact statements from the Kovac family, all of whom have been deeply affected by these events.
44	Alex Kovac wrote of this incident – 
'This incident has detrimentally affected my whole life.  I feel as though I am not the same person as I was.  My mental health has been severely affected, I have had a formal diagnosis of PTSD and anxiety from this.'
45	He continues – 
'Because of my current mental state I have issues trusting new people in my life in forming relationships, I also began to isolate myself from friends and family and even lost close friends due to this.  It has caused tension within my household.  I haven't had the motivation and mindset to re-join the workforce full time… Certain places I go to that are loud and have a lot of people generally cause me anxiety and brings up bad memories of this trauma.'
46	There is no doubt that this was a terrifying ordeal for Mr Kovac.
47	Alex Kovac's father, William, describes this ordeal as the 'most intense stressful period of my life… I had constant fears for my son’s safety'.  He goes on to say – 
'From my perspective the matter is still not concluded.  Extra support is given by me to my son and this will be ongoing.  I still have heightened stress and increased anxiety that has not subsided.  I have chronically bad sleep patterns.'
48	For privacy reasons, the family has not shared the fact of this offending with their wider social support group.  As a result they have become isolated from family and friends and Mr Kovac feels this had made their healing slower.
49	Mr Kovac's mother, Louise, also wrote a victim impact statement.  As she asked for it to not be read aloud, I will not outline its contents here, but I have had due regard to them.  I accept her comment that this event reflected every parents' worst nightmare.
Objective gravity of the offending
50	In assessing the objective gravity of this offending I note the following aggravating features.  There was a degree of planning in your offending.  It is apparent that you along with your co-offenders took a view that Mr Kovac was someone who had access to money via his parents.  He had previously shared money which he had obtained from his mother with you for drugs and gambling.  It is clear he was viewed as an easy target and in that way the extortion was planned.
51	You were not involved in his kidnap, but there was clearly some coordination and communication between you and your co-offenders.  You arrived with another male at the house where Mr Kovac was being held.  You arrived with the obvious intention of participating in the extortion of his parents and getting what you could from Mr Kovac.
52	When you arrived, you would have found a person who was tied up to a chair, already clearly injured to his face, in a room where weapons were present and threats were being made.  Despite those shocking circumstances, and despite the fact that 24 hours earlier he had shared money with you for drugs and gambling, you did not withdraw or help him, but immediately joined in.  That was obviously the purpose of your attendance.  Your presence with a fifth man no doubt added to the level of intimidation for Mr Kovac.
53	Not only did you join in, but you took a lead role in the telephone calls with his father.  You made up a false story about Mr Kovac in your efforts to extract money.  When you did not immediately get what you wanted, you increased the pressure on Mr and Mrs Kovac by your threats to harm their son.
54	The extortion is a serious offence.  Your Counsel concedes that you played an active and pivotal role in it.  The amount demanded was significant.  It was a demand made with the very real threat to injure Mr Kovac.  He and his parents were in no doubt of your capacity to do so given what had transpired, and what was transpiring in an ongoing way as the phone calls were made – namely ongoing restraint and assault of Mr Kovac and the production of a weapon capable of inflicting injury to him.
55	As well as playing that role in the extortion, you are also guilty of assaulting him.  You were not part of the initial assault and I do not sentence you for those acts.  However, you were present and complicit in the later assaults on him when he was on the phone call, and complicit in Mr Chand's behaviour in producing and threatening him with the knife.
56	It is a serious assault in that the later assaults occurred when he was already injured.  There was repeated physical force to the face and head of Mr Kovac, inflicted by a group of people and in the context of his ongoing restraint and inability to defend himself in any way.
57	You played the most active role in the theft of his belongings.  You took any belongings of value to him.  It was a gratuitous offence which took advantage of his inability to do anything to stop you.
58	In determining where this offending falls in the range of seriousness, I take into account the following factors which lessen the seriousness of the offending.
59	The extortion is a single date offence on the indictment.  I accept that ultimately there was no money extorted.  I accept your involvement covers a shorter time frame than all of your co-offenders.  You came later and left at some stage around the time he was moved from the first house.  I accept you were not personally involved in the use of weapons.  I accept the value of items stolen was reasonably modest.
60	Nonetheless, this is offending which involved serious demands and threats of violence in the context of actual violence being committed.  Looked at globally, this is serious offending which warrants condign punishment.
Submissions as to Disposition
61	Sensibly, your counsel, Ms Freijah, concedes that the only appropriate disposition here must involve a term of immediate imprisonment.  That is so for the reasons I have outlined – to express denunciation, to punish you, to deter you and others, and to protect the community.  
62	Ms Freijah on your behalf submits that due to a number of compelling mitigating factors I should impose a term of imprisonment in combination with a Community Correction Order.
63	The mitigating factors she relies on are as follows:
a.	your age, being 21 at the time of this offending;
b.	your difficult background, enlivening principles of Bugmy;
c.	your confirmed intellectual disability and the applicability of principles of Verdins;
d.	your level of institutionalisation and the lack of therapeutic orders imposed on you in the past to assist in your rehabilitation;
e.	your pleas of guilty;
f.	the impact of delay; and
g.	the impact of totality.
Personal Circumstances
64	In order to consider those matters I will outline your personal circumstances.
65	Ms Freijah gave an eloquent, thorough and thoughtful plea on your behalf.  She assisted me with helpful written and oral submissions.  I have also been assisted by a neuropsychological report authored by Dr Matt Treeby dated 17 January 2023, and a psychological assessment prepared by Dr Aaron Cunningham dated 8 October 2022, which follows on from his 2016 report which I have also considered.
Background
66	You are now 25 years old.
67	You are the youngest of your sibling group, which includes seven sisters and six brothers.  You were born in Australian in 1997 following your family's relocation from New Zealand in around 1996.  Your father is of Samoan background, and your mother was of Samoan and Chinese descent.  Your father worked as a truck driver and furniture removalist.
68	Your mother passed away suddenly from a cardiac event in 2005, when you were seven or eight years old.  You were present and witnessed her having a coughing fit and being taken away by ambulance.  She did not recover and you have little memory of her.  Your father re-partnered and married your stepmother, Lei, within six months.  You resented the replacement of your mother with your stepmother.
69	Your father was volatile and violent, as was your stepmother.  You were subjected directly to regular family violence, including being 'smashed' with 'whatever was in front of [your father]; bats, spoons, wire.'  You started running away from home as a 10-year-old, finding refuge at the home of one of your siblings until your father found you again, beat you and took you home.
70	Whilst no formal child protection orders were in place, material obtained by your solicitors makes plain that multiple notifications were made to child protection in relation to your absconding from home and exposure to family violence and exposure to other criminal activities.  A number of your brothers have been engaged in criminal activity, with one being deported to New Zealand.  A number of intervention orders were made against your father.
71	You report struggling with attention and concentration during primary school where you say you felt 'dumb'.  You were frequently in trouble but no investigation was made into your behaviour or your academic capacity.  You attended Cranbourne Secondary College and continued to experience the same behavioural and learning difficulties.  You ultimately left school during the first half of Year 9.  You completed Year 10 when in Youth Detention.
72	You left home at around that time, at age 15 and moved between your sisters.  You viewed your role in one household as protecting your sister and her children from domestic violence at the hands of her partner.
73	You left family permanently at age 16 to live with a girlfriend.
74	You gravitated towards antisocial peers during early adolescence and were introduced to drugs and alcohol at an early age.  You began drinking alcohol at age 11 and were binge drinking in early adolescence.  By 15, your relationship with alcohol was severely disordered, and you were resorting to crime to sustain your drinking habit.  With a tragic inevitability you were introduced to illicit drugs, becoming dependent on methamphetamine at age 17.  You have used it regularly, increasing to daily use alongside use of GHB and other opioids.  You have experimented with heroin, cannabis and cocaine.
75	You are closest with an older brother and your older sister, Lillian, who you describe as a mother figure in your early years.  She passed away in 2021 due to a brain tumour and you continue to grieve her death.  You have also recently lost two of your nieces after they both received a vaccine.
76	You were in a relationship on and off from aged 13 to 20.  You were then in a relationship from which you have a son who is now four.  Your most recent relationship with another woman broke down after eight months.
77	You have no employment history.  At the time of your offending, you had no income, nor were you receiving Centrelink payments.
78	You state that your relationship with your father has broken down, and that he thinks you are a ‘disgrace’.  You last had contact with him in February 2022.
Prior Criminal History
79	Perhaps unsurprisingly in the context of your early life you have a criminal history.  However, even allowing for the impact of your upbringing, your criminal history for offences of dishonesty and violence is significant, and significant for someone so young.
80	You were first brought before the Children's Court in 2012 when you were 14 years old for theft of a motor vehicle, go equipped to steal, and unlicensed driving.  Soon after, in 2013 you were before the Children's Court again on a consolidation which lists over 50 charges.  You were 15 years old.  Those charges included thefts, thefts of motor vehicle, deceptions, reckless conduct endangering serious injury, burglary, criminal damage, resist police and armed robbery.  You were placed on a Youth Supervision Order which you soon breached.
81	You were back before the Court in 2014 for that breach along with new charges of affray, intentionally causing injury in circumstances of gross violence, five charges of recklessly causing injury, various robberies, reckless conduct endangering life and serious injury, and theft of a car.  You were detained in Youth Detention for 13 months.  
82	Another sentence of 74 days in Youth Detention was imposed later in 2015 for similar offending, although I cannot determine if they were subsequent offences or matters which missed the consolidation.  
83	You were released to a Youth Attendance Order which you breached.  For the breach in 2016 you were sentenced to a further term of Youth Detention of 12 months.
84	In 2016 you returned to both the Children's Court and Magistrates' Court for charges of assaulting and resisting an emergency worker on duty, assault and various thefts.  More Youth Detention followed.
85	In 2017 you received your first term of adult imprisonment for assault in company and assault charges and in 2018 you received a term of imprisonment for handling stolen goods.  In November 2018 you were fined for criminal damage.
86	This offending occurred in April 2019.
87	Those records paint a picture of a young man who was clearly out of control.  To my mind they also tell a story of a lack of supervision, guidance and probably a lack of love and care from any adult in your life.
88	Of significance, you were in and out of Youth Detention during the key developmental period of your middle to late adolescence and have spent much of your young adulthood in custody.  The longest uninterrupted period of time that you have resided in the community during the past seven years is eight months.  You now state that you feel more comfortable in the custodial setting than in the community.  That is a concern.
Bugmy v R
89	Ms Freijah submitted that the circumstances of your early life enliven the principles outlined by the High Court in The Queen v Bugmy.
90	Those principles arise where an offender has suffered significant deprivation in their childhood and formative years.  Higher Courts have recognised that those circumstances have profound and lasting consequences.  They leave their mark on a person and are matters which I must take into account when sentencing you.  As the Victorian Court of Appeal in DPP v Drake stated – 
It is the mark of a humane society that the moral judgement expressed through sentencing should take into account the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years.  … childhood trauma can permanently damage — and seriously distort — a person's view of the world around them and their understanding of social norms.
91	The consequence of a finding that Bugmy is applicable is that your subjective culpability cannot be equated with a person who committed the same offences but had the advantage of a normal, stable and regular home environment.  That is a reflection of the principle of equal justice; though like must be treated as like, where there are differences they should be recognised.
92	I accept that the experiences of your childhood reflect a background of abuse, neglect and trauma such as to enliven the principles enunciated in The Queen v Bugmy.  I accept that that is a mitigating factor which reduces your moral culpability.
93	Further, you have recently been diagnosed with an intellectual disability.  Therefore, I take into account the principles outlined in Bugmy specifically viewed through the additional prism of your intellectual disability.  I understand that consideration with the comments of the Court of Appeal in Eser v The Queen in mind.
R v Verdins
94	Your Counsel also submitted, on the basis of your intellectual disability, that the principles in R v Verdins are enlivened.  Those principles must be taken into account when a sentencing court is dealing with a person with a mental impairment.  They oblige me to consider whether there is a connection between your impairment and your offending such that your moral culpability should be reduced, or a different type of sentence should be imposed, and whether you are a suitable vehicle to be held up to the community as an example through which to achieve general deterrence.  They may also be relevant to the consideration of specific deterrence and to the likely impact of time in custody on your mental health.
95	Your diagnosis of intellectual disability has come about as a result of a referral made by your solicitor Ms Prior of Emma Turnbull Lawyers for a Neuropsychological Assessment.  It is a formal diagnosis that reflects the views of Dr Cunningham expressed as long ago as 2016, but it has not become available until now.
96	The expert report of Neuropsychologist Dr Matt Treeby confirms that your 
full-scale IQ is 69.  That means your intellectual functioning is worse than 98% of other people your age in the wider community.  In other words you are in the 2nd percentile relative to similar aged peers.  He diagnoses you with a ‘mild intellectual disability’.
97	As a result of Dr Treeby's report, your Counsel submitted that I should make a referral for assessment for a Justice Plan.  That referral has resulted in you being provided with a formal Certificate of Intellectual Disability.  That certificate, issued by the Department of Families, Fairness and Housing pursuant to the Disability Act 2006, confirms you have significant sub-average general intellectual functioning, and have significant deficits in adaptive behaviour, all of which arose before you were 18 years of age.
98	On the basis of those findings, Ms Freijah submitted that all limbs of Verdins are open.
99	Ms Fallar properly conceded that limbs 1 3, 4 and 5 apply, however argued that any reduction to your moral culpability, the consideration of deterrence whether specific or general on account of your mild intellectual disability should be modest.  There was no argument that your time in custody is likely to be harder due to your mental impairment than for a prisoner without intellectual disability.
100	Determining the appropriate level of moderation of those principles is complicated when there is an interplay with illicit drug use, however the underlying impairment is not eclipsed by that fact.
101	In consideration of those arguments, I have noted the following aspects outlined by Dr Treeby, and to some extent by Dr Cunningham.
102	Your IQ of 69 reflects a cognitive impairment.  According to Dr Treeby that cognitive impairment is long standing being developmental in origin, is 'near global' and permanent.  That is, it affects almost all aspects of your functioning.
103	Dr Treeby says you have broad difficulties with comprehension, reasoning, judgement, and planning and organisation due to your intellectual disability which adversely impact your day-to-day functioning and adjustment.  You also have clear impairments in the social domain of functioning including with respect to regulating your behaviour.  You struggle with understanding abstract concepts, have limited capacity to engage in consequential thinking and have difficulty reasoning through problems.  He says those impairments would have been evident at the time of this offending and will remain so into the future.
104	Although you clearly understand concepts of right and wrong, your ability to fully comprehend some of the consequences of your actions and antisocial behaviour he says can be considered questionable given your mild intellectual disability.
105	Dr Treeby says you have a limited ability to engage in consequential thinking and due to the severity of your cognitive impairment your ability to make reasoned and appropriate judgements in various situations can be considered doubtful.  Those impairments are exaggerated when you are substance affected.
106	He opines that you will require permanent support with complex activities of daily living as you progress through adulthood.
107	You have also described low mood and anxiety.  On the Depression, Anxiety and Stress Scales (DASS21), your depression and stress symptoms were classified by him as Severe, and your anxiety symptoms Extremely Severe.
108	In light of those findings I accept that limb 1 of Verdins applies.  That is, there should be some allowance for the causal connection between your intellectual disability and your moral culpability.  It does not take it much further than the allowance made by virtue of Bugmy, but it must take it some way further.  That is because the impact on you of your difficult upbringing is different to a person without such impairment.
109	I accept that with reference to limbs 3 and 4 there must also be some reduction of deterrence, although that must be balanced with the need for community protection.  I note Dr Treeby's comments that in light of your significant and 
long-term criminal history, your mental impairment cannot entirely account for your offending behaviour.
110	I accept that limb 5 applies – namely that your time in custody is more difficult due to your intellectual disability than for a person without it.  I do not accept however that limb 6 applies – that is, there is no evidence before me that your impairment will further deteriorate in custody.  
111	As a different consideration however I take into account the view of Dr Cunningham, who notes that your intellectual impairment makes you more vulnerable to the influences of antisocial peers in the custodial setting.
112	The main dispute in this case has been whether Verdins limb 2, along with other considerations, should result in a different sentence – namely a term of imprisonment in combination with a Community Correction Order.
Submissions as to Disposition
113	The Prosecution initially submitted that the appropriate sentence should be a head sentence with non-parole period.  However, after provision of the report from Dr Treeby and the various assessments by Disability Justice, Ms Fallar submitted that a term of imprisonment in combination with a Community Correction Order was open.
114	Ms Freijah argued that you require structure and supervision on your release from prison.  She points to the fact you have not had a therapeutic disposition since 2015, despite your young age.
Youth
115	You were 21 years old at the time of the offending before me.  You are currently 25 years of age and as such fall into a category of youthful offender.
116	Higher Courts have long made clear that sentencing considerations for a younger offender are very different to an older mature person.  In particular, primacy must be given to your rehabilitation. Those principles are well understood; they emerge from the cases of Azzopardi and Mills.
117	Courts recognise the potential for younger offenders to be redeemed and rehabilitated and that potential exists because they are typically still in a state of mind and emotional development and may be open to influences designed to positively change their behaviour.  It is because of that potential that rehabilitation of young offenders is one of the greatest objectives of the criminal law.  In short, a disposition which works to reclaim a younger offender means the whole community benefits.  I take those considerations into account.
118	It is obvious from your prior criminal history that there have only been limited attempts at therapeutic dispositions.  That is no doubt because your offending has been serious and prolific.  Nonetheless it is a matter I take into account.
119	At some stage you will be released to the community.  I must consider what happens to you on your release as part of my consideration of community protection.  It is apparent that each time in recent years you have been released from imprisonment your descent to drug use and consequent criminal offending has been rapid and dramatic.  You reported to Dr Treeby that
'I wig out getting back out into the community.  They throw me in the deep end and it’s hard to adjust.  When I’m outside, I’m always looking over my shoulder.  When I’m in gaol, I feel good.'
120	You do have some family support which you can rely on, however, and with no disrespect to her, that is residing with your niece who is 23 or possibly with your sister.  I have read a letter of support from another of your nieces who describes you in positive terms.
121	To your credit, and notably, it is recorded in the recent Disability Justice Overview Report that you have recognised the need to separate yourself from various family members who are involved in criminal activity.  That is not easy.  You have expressed a desire to get your own place, though you have experienced housing instability while in the community and have never had a bill or a lease in your name, nor have you been able to navigate the administrative requirements of Centrelink.  According to Dr Treeby however you will now be eligible for a Disability Support Pension.
122	Your son and his mother are still in your life, and your son is a significant incentive in your rehabilitation.  You have expressed a desire to be a proper father to him.  Understandably, and properly, your partner is waiting for you to grow up and deal with your addiction issues.
Prospects of Rehabilitation
123	According to Dr Treeby and Dr Cunningham you have multiple risk factors for recidivism, including a history of violence, substance abuse problem, and antisocial personality traits.  Dr Treeby assesses your risk of reoffending as moderate to high.  However, given your young age, says there are still some prospects for rehabilitation.
124	They both make a number of recommendations for treatment and intervention on your release, pointing out these must be tailored to and accommodating of your cognitive impairment.
125	In favour of those prospects, you yourself identify your association with antisocial peers and your substance misuse as factors that led to your offending conduct in this matter.  You have reportedly taken steps to remove these influences and have successfully removed yourself from your previous gang affiliation.  You are motivated to look after family, in particular your son and his mother.
126	You say you are motivated to obtain employment once released from custody.  You have expressed an interest in working in construction or factories, and you want to get your forklift license.  You also have an interest in pursuing traffic control.
127	In my view your prospects of rehabilitation are guarded given your prior criminal history.  I agree with Dr Treeby's assessment that your risk of reoffending largely depends on whether your mental health and substance abuse problems are properly addressed.
128	However, in your favour, I note those expressions of motivation.  I accept Counsel's submissions from the Bar table who has represented you over a period of time, that those expressions reflect a new and different attitude.
129	Importantly I note that you now have a diagnosis which will assist in any treatment and which should open access for you to services previously unavailable.  In particular you are assessed as eligible for a Justice Plan.
Justice Plan
130	A Justice Plan is available under Part 3BA of the Sentencing Act 1991 for intellectually disabled offenders where a Court is considering imposing a correction order.  I have received a Disability Overview Report and associated Justice Plan, authored by Ms Kelly Johnson, Disability Justice Coordinator, Forensic Disability Program, Statewide Disability and Housing Operations.
131	As a result of Dr Cunningham's addendum report of 2022 and Dr Treeby's report you are now assessed as meeting criteria through Target Group which means you are eligible for services through Disability Justice.  I have had the benefit of viva voce evidence from Ms Johnson this morning, elaborating on the way Disability Justice will work with and liaise with other mainstream providers.
132	Disability Justice Coordinators collaborate with Corrections Victoria to ensure supports and treatment are targeted to the level of a person's disability.  You have not received such supports in the past.  The assessment picks up the recommendations made by Dr Treeby.  That includes addressing of your mental health; assessment of your functional capacity to ascertain what day-to-day supports you require to live independently.  There is recognition that suitable and secure housing would be a stabilising factor for you.
133	Referral to community drug and alcohol services for assessment and treatment, recognising not only have drugs contributed to your offending but to your psychosocial difficulties more broadly.  Ms Johnson reiterates the need to address your substance misuse to minimise your risk of reoffending.
134	You should now be eligible for a support package via the National Disability Insurance Scheme.  No application has been made to date pending the Certificate of Intellectual Disability.  Now that you have the Certificate an application will be made immediately.  Disability Justice can assist in that regard and given the interplay of the forensic aspect of your case, the Intensive Support Team within the DFFH may be able to agitate for prioritisation of your application.  
135	Referral to a Disability Employment Service provider will also be of benefit.
136	I take into account those matters. I take into account your urgent need for structure, supervision and treatment. Supervision and active treatment and intervention is required on release to attempt to turn your life around.  I take into account the range of services and supports which are now available to you via a CCO with a Justice Plan attached.
Plea of Guilty
137	I take into account your pleas of guilty to this offending.  You are entitled to a discount in sentence as a result.  That discount however is minimal given the lateness of your pleas.  Your matter did not resolve until after your co-offenders unsuccessfully fought a trial.
138	Your matter had been listed alongside their trials in February 2022.  Your trial did not proceed as you were admitted to Dandenong Psychiatric Unit due to a 
drug-induced psychosis.
139	You entered discussions to resolve your matter only once the trial had played out.  Mr Kovac, his parents and their family friend had all been cross-examined.  Although I take into account that your plea meant there was not a subsequent trial, any such trial would have occurred by playing the recorded evidence rather than recalling the witnesses.  As such, the benefit to the victim and his family is moderate.
140	I do accept that your pleas have saved court time and the cost to the community of a subsequent trial.
Delay
141	Your Counsel relied generally on delay.  I take it into account to the following extent.
142	Your matter first came to this Court in December 2019 and was fixed for Trial on 1 March 2021, later moved to 13 April 2021.  The Trial was administratively adjourned primarily due to the backlog caused by the COVID-19 pandemic, with a Trial then listed for 21 February 2022.
143	On 10 February 2022 you were admitted to hospital.  Documentation indicated you were likely to remain hospitalised until at least 7 March.  As a result, your Trial was adjourned to a date to be fixed.  Your co-offenders were found guilty on 15 March 2022.
144	At a Mention on 22 March 2022 your matter was listed for Trial on 3 June 2022.  Discussions were taking place to resolve your matter.  A Directions Hearing in April 2022 was further adjourned to 6 May 2022 by which time your matter had resolved and you were arraigned.
145	Your plea was listed on 1 July 2022 but on defence request was adjourned to 15 July.  On that date you failed to appear, having been again taken to Dandenong Hospital overnight.  The matter was adjourned for two days to 19 July and on that date the Plea was relisted for 1 August.  Again you failed to appear and I issued a warrant for your arrest.  You were taken into custody on 22 August 2022.
146	Your plea proceeded in part on 7 September 2022.  It was adjourned to 17 October.  On 11 October it was again adjourned in order for new Counsel to be briefed and to obtain relevant expert reports.  The critical report of Dr Treeby dated 17 January 2023 was filed with the Court on 8 February 2023.
147	On 15 February 2023 I was unavailable and the plea was then adjourned to 4 April 2023.  On that day your plea proceeded, however was further adjourned at the request of both parties that I order an assessment for a Justice Plan and CCO.
148	I take into account the delays caused in 2021 by the COVID pandemic and due to the necessity for a change in Counsel, time taken to obtain reports, and due to my unavailability in February of this year.  It has taken a long time to reach conclusion, and those matters I have referred to are not of your doing.  The charges for this offending have therefore been hanging over you for a considerable period of time.
149	Sometimes a plea of guilty can reflect genuine remorse by an offender.  Dr Treeby states that there is an indication that you have accepted responsibility for, and regret, your role in this offending.  In your case however I cannot see any evidence of remorse or sympathy for your victim and his family, even by your plea.
Remand during COVID-19 Pandemic
150	I take into account that a portion of your period of remand for this matter, occurring from August 2022 onwards, occurred during the COVID-19 pandemic.
151	Higher Courts have stated that the difficulties of time in custody during the COVID-19 pandemic must be reflected in palpable discounts in sentencing.  I take that into account to the extent it is relevant in this case.
152	I also take into account your personal circumstances in custody.  On 16 January 2023 you were stabbed 14 times by a group of other prisoners at Port Phillip Prison.  Fortunately your injuries were superficial, but they required stitches at St Vincent's Hospital.  On return you were in lockdown for up to 23 hours per day for your safety.
153	That event precipitated a move to Barwon Prison on 24 March 2023 where you remain in a management unit.  You are in lockdown for up to 23 hours per day.  It means you are unable to participate in employment or programs.  You do not have visitors.  Those facts make your time in custody extremely difficult and I take that into account.  Again I must make that assessment taking into account your intellectual disability.
Totality
154	I must also take into account the principle of totality.  That principle applies where a Court is sentencing a person for multiple offences, or where an offender has served other sentences in the same period of time.  It requires the sentencing court to determine the appropriate sentences, and then to stand back and look at the overall picture to ensure a sentence is not crushing.
155	In your case I will take into account the substantial overlap between the extortion and the assault in particular.  In other words, the assaults committed on Mr Kovac were in part to effect the extortion.
156	In addition, in your case I must take into account two portions of imprisonment.  The first relates to a remand between 12 December 2019 and 20 April 2020 in relation to other charges.  The substantive charges in that matter were withdrawn and you were sentenced in the Magistrates' Court in June 2023 to 30 days of imprisonment, which was reckoned as already served.  In fact you have served 126 days on remand for those matters; 96 days therefore is 'dead time' and I take that into account.
157	I also must take into account the fact you have served a sentence of imprisonment in the intervening period.  After being released on bail in early 2020, you committed an offence of recklessly causing injury.  You were sentenced for that offending in October 2020.  You received a term of imprisonment of 2 years and 8 months, with a non-parole period of 22 months, of which you had served 170 days pre-sentence detention.  You were denied parole and served the entirely of that sentence.
158	What that means is that when I am looking at the period of time since this offending in April 2019, I must take into account that you have served 553 days of pre-sentence detention on these charges, and in addition the periods of 126 days and 2 years and 8 months where I cannot order any concurrency.
159	I do not know the reason you were not granted parole and I cannot take into account the fact you were not granted parole, other than in relation to totality.  Whether you would be granted parole on a sentence I impose would be a matter for executive decision.  I note you have never undertaken parole.
Current Sentencing Practices
160	I have also taken into account current sentencing practices for offences such as these.  There are always similarities and differences between offences and offenders which lead to a variety of sentences.  Sentencing is not a mathematical task.  It is a synthesis by the sentencing judge of many different factors.  Here, as with many cases, those factors tend to pull in opposite directions.  In your case, perhaps more than usual.  In one direction is the seriousness of the offending and your prior history.  In the other is your youth and need for fulsome rehabilitation.  Ultimately I am required to impose a just sentence and that is what I have endeavoured to do.
Parity
161	I am mindful that you have three co-offenders in this matter who were sentenced by me on 12 September 2022, which raises issues of parity.
162	Parity is an aspect of equal justice.  There should be no unjustifiable differences in sentences imposed upon similar offenders for similar offending.
163	The key words are, 'unjustifiable difference'.  That is because parity takes into account, consideration of the offending and your roles in that offending but also must take into account your personal circumstances at the time and since.  In that sense, equal justice may result in different outcomes as it will here.
164	Your Counsel highlights that I must take into account that your co-accused ran a trial.  I should also take into account that they have been sentenced in relation to more serious offending, and in particular for Category 2 offending, being the kidnap charge.
165	Your Counsel submits that your particular circumstances mean my discretion is not constrained by the sentences of your co-accused.  I accept those submissions.
166	I outlined the different considerations in relation to your three co-offenders in my reasons for sentence of them.  I will not repeat those conclusions here.
167	As highlighted by your Counsel, there are several significant differences in relation to you.
a.	First, your age being 21 at the time of the offending, and the focus that places on rehabilitation;
b.	Second, your history of disadvantage enlivening principles of Bugmy;
c.	Third your diagnosis of intellectual disability and the applicability of 
limbs 1, 2, 3, 4 and 5 of Verdins;
d.	Four, your pleas of guilty;
e.	Five, your circumstances in custody;
f.	Six, consideration of totality;
g.	Seven, the availability of a Justice Plan should I release you to a Community Correction Order.
168	It is somewhat ironic that the appalling nature of your prior criminal history works in favour of a disposition which is different to a head sentence and non-parole period, but in my view it does.  And it does for the following reasons.
169	It demonstrates as I have outlined that from a very young age you were unsupervised and out of control.  With all due respect to those who sentenced you in the past, and recognising the seriousness and number of offences, there was limited recourse to dispositions involving intervention, supervision and treatment.  Quite quickly your offending escalated to the point of Youth Detention and then adult custody.  You are now at a point where you risk becoming institutionalised.  You yourself have expressed to Dr Cunningham that prison is 'often an easier place to live'.  Each time you are released you lapse quickly.
170	Unlike my predecessors, I have the advantage of now having a neuropsychological assessment which confirms your diagnosis of intellectual disability.  That has opened the door to a much more structured option upon your release.
171	As Ms Fallar said at the plea, you will be released at some stage.  You cannot remain in custody indefinitely.  That is true.  And the point is, you need significant intervention if you are to be rehabilitated from the life of drug use and criminal behaviour you have been habitually involved in.  It is clear you have no other appropriate support in the community to guide you in that regard.
172	Therefore, when I consider the matters I must synthesise, I have concluded that a disposition here which reflects the seriousness of your offending by way of imprisonment, but which also looks to your rehabilitation via a Community Correction Order is the appropriate outcome.
173	I take into account the Court of Appeal's comments in relation to a Community Correction Order in the case of Boulton v The Queen.  I note you have not had the benefit of a CCO previously.
174	I received an assessment report, along with a mental health assessment report attesting to your suitability for such an Order.
175	In all the circumstances of your case I propose to impose a term of imprisonment followed by a Community Correction Order with a Justice Plan.  Given that conclusion, in my view it would be artificial and unhelpful to order separate sentences on the three charges.  They are part of a series of offences, close in time, with considerable overlap and with the same purpose.
176	Parliament dictates that I can only order a term of imprisonment which results in you serving up to 12 months from the day of sentence prior to the CCO commencing.  Taking into account the Renzella time here in particular, I have drawn back from imposing the full 12 months prior to your release.  I have also taken into account your levels of motivation which should be harnessed.
177	On all charges I will impose an aggregate term of imprisonment.  That is on Charge 1 of extortion, on Charge 2 of common law assault and on Charge 3 of theft, Mr Ulutui, you are convicted and sentenced to 2 years and 3 months' imprisonment.  Plus a 27-month Community Correction Order to commence on your release.
178	What that means is you will have approximately 9 months of imprisonment to serve before you are then released to that Community Correction Order and ultimately that Community Correction Order will conclude almost exactly 3 years from today.
179	I declare that you have served 553 days of pre-sentence detention.
180	The conditions of the Community Correction Order will be as follows and you need to listen to these, Mr Ulutui, because I will need to have your agreement that you will undertake these conditions on the Community Correction Order:
i.	Firstly, that you will be under supervision of Corrections Victoria;
ii.	Second, that you will undertake assessment and treatment in relation to your mental health as they direct;
iii.	Third, that you will undertake assessment and treatment in relation to drug and alcohol use as they direct;
iv.	Next, that you will undertake offence-specific programs.  So if Corrections Victoria tell you to go and do a program related to your offending, whether that is anger management or something else, then you must do that program;
v.	Next, that you undertake any other programs directed at either education or vocation, that is jobs; and
vi.	Lastly, that you comply with the conditions of the Justice Plan.
181	Do you agree to undertake that Community Correction Order?  We have just got you on mute.  We will try again.
182	OFFENDER:  Yep.
183	HER HONOUR:  I think you might have put it back on mute.  Do you agree to undertake the conditions of that Community Correction Order?
184	OFFENDER:  Yes, Your Honour.
185	HER HONOUR:  Do you understand that if you breach that order, whether that is more offending or whether that is by not complying with the conditions, that is not doing what you are told in terms of programs or counselling et cetera, that you would be in breach of that order?
186	OFFENDER:  Yep.
187	HER HONOUR:  And that you would then be brought back before me - - -
188	OFFENDER:  Yeah.
189	HER HONOUR:  - - - with the option for me to resentence you on this offending, the extortion et cetera.  Do you understand that?
190	OFFENDER:  Yes.
191	HER HONOUR:  All right.  Do you agree to undertake that Community Correction Order?
192	OFFENDER:  Yes, Your Honour.
193	HER HONOUR:  All right.  Just excuse me for a moment.
194	Pursuant to s 6AAA, but for your plea of guilty, the sentence I would have imposed would have been one of 4 years' imprisonment with a non-parole period of 2 years and 8 months' imprisonment.
195	Are there any matters to raise, Counsel?
196	MS FALLAR:  Just one.  Under the CCO, he is to report at Dandenong but we have not been informed by my learned friend where Coleen resides, if she is in the Dandenong areas.
197	MS FREIJAH:  I understand it would be the same.  It is Cranbourne.  I can just double-check that there is no other office closer.
198	HER HONOUR:  Sure.
199	MS FALLAR:  Same catchment.
200	MS FREIJAH:  I think it might be.
201	HER HONOUR:  Yes.
202	MS FALLAR:  Yes, Your Honour.  In any event, he can be directed to go to Dandenong.
203	HER HONOUR:  Yes.
204	MS FALLAR:  If that needs to be moved, - - -
205	HER HONOUR:  Exactly.  I am hoping and I have some confidence because of the Justice Plan that there will be transition planning for Mr Ulutui.  That is the whole purpose of it.  In my view, it has already started to an extent.  So if there is a need to change that, I am anticipating that can be done.
206	MS FREIJAH:  Yes, Your Honour.
207	HER HONOUR:  He is going to need an address obviously when he comes out - - -
208	MS FREIJAH:  Yes.  Yes.
209	HER HONOUR:  - - - and that will have to be determined prior to him being released.
210	MS FREIJAH:  I can indicate, Your Honour, that we also had a conversation with Ms Johnson after the plea this morning and she suggested that she would be in touch with Mr Ulutui to discuss transitional housing.
211	HER HONOUR:  Yes.
212	MS FREIJAH:  So that is another option that they are considering at this stage.
213	HER HONOUR:  All right.  Great.
214	MS FREIJAH:  The only other matter, Your Honour, is throughout the reasons I think Your Honour indicated a period of pre-sentence detention being 551 days.  Your Honour correctly stated at the end of the sentence of course 553.
215	HER HONOUR:  Fifty-three.
216	MS FREIJAH:  I just wanted to bring that to Your Honour's attention.
217	HER HONOUR:  Thank you very much.  On review, I will correct that.
218	All right.  Mr Ulutui, your verbal consent today is all I need to make that order.  I expect that Ms Johnson or others will be in touch with you so that you can put in place some very good planning for your release.
219	OFFENDER:  Yep.
220	HER HONOUR:  All right?
221	OFFENDER:  Yep.
222	HER HONOUR:  And I hope that on your release, there is a structure around you.
223	I did want to bring Mr Ulutui back, I am sorry, and I just want to make an order for Judicial Monitoring.  What that means, Mr Ulutui, is that I get an update on how you are going - - -
224	OFFENDER:  Yeah.
225	HER HONOUR:  - - - so that I really hear how things are when you are released.  So on my reckoning, you will be released sometime around the end of March next year and I think if I bring it back - I will look at 28 June so it is a year today pretty much, a year yesterday.  So what happens is I get a written report from Corrections and Disability Justice ahead of that hearing.  That will tell me exactly how you are doing.  If all is going well, I will probably only bring you back that one time.
226	OFFENDER:  Yep.
227	HER HONOUR:  But if things are looking wobbly, then we will discuss that at that point but I really hope that is not the case.
228	OFFENDER:  Yep.
229	HER HONOUR:  All right.  Thank you very much.  Thank you, Counsel, for your assistance.  We will just stand down, I have another matter, but if you need a moment to have a chat with Mr Ulutui, that can occur.
230	MS FREIJAH:  I would be grateful.  Thank you, Your Honour.
231	HER HONOUR:  All right.  Thank you.
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