IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-01706
CR-24-00359

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
Q MALIET
SAMATAR ALI		

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JUDGE:	HIS HONOUR JUDGE MAIDMENT	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 February 2025	
DATE OF SENTENCE:	25 February 2025	
CASE MAY BE CITED AS:	DPP v Maliet & Anor	
MEDIUM NEUTRAL CITATION:	[2025] VCC 156	

REASONS FOR SENTENCE
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Subject:		Plea - sentencing
Catchwords:		Affray - recklessly cause injury
Legislation Cited:	
Cases Cited:	DPP v SA & Ors (No 2) [2024] VSC 428
Sentence:		Maliet: 	19 months’ imprisonment, 16 months to be served cumulatively 
 		upon the sentence presently being served - new total effective 
 		sentence 20 years and 10 months' imprisonment.
 		New non-parole period 15 years and six months

Ali:	 	19 months’ imprisonment, 16 months to be served cumulatively 
 		upon the sentence presently being served - new total effective 
 		sentence 20 years and 4 months' imprisonment.
 		New non-parole period 15 years 
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions	
			
For Accused Maliet at hearing
For Accused Maliet at sentence	Mr P. Bloeman
Mr M. Williams	Ajak and Associates	
			
For Accused Ali	Mr P. Gordon	KPT Defence Lawyers	

HIS HONOUR:
1	Samatar Ali and Q Maliet, you have both pleaded guilty to one offence of affray and two offences of recklessly causing injury to two employees of the Malmsbury Youth Justice Centre.  All the offending took place on 25 March 2023, at a time when you were both in custody pending trial for the offence of murder.  Each of you was convicted of murder in the middle of last year and you are both now serving a sentence for that offence.  
2	The offences to which you have now pleaded guilty are described in a Summary of Plea Opening filed on behalf of the Director of Public Prosecutions dated 29 January 2025 - that document is Exhibit A on the plea hearing.  It sets out the circumstances in which each of you committed the three offences for which I now proceed to sentence you.
3	The offending took place at around or shortly after 6.30 pm at a time when each of you was due to be locked down.  You were in the outdoor area shortly before the lockdown was due to take place.  You were both apparently there for exercise and were being supervised by certain members of staff of the Youth Justice Centre, including a Mr Dempsey.  Each of you began to assault Mr Dempsey and your other victim, Mr Eminy.  
4	There was a melee in which you and others were involved.  That gives rise to the offence of affray.  Each of you is responsible either individually or in complicity with each other in recklessly causing injury to Mr Dempsey and to Mr Eminy.  The incident was caught on CCTV footage played to the court - that became Exhibit B on the plea hearing.  It reveals the nature of the offending of each of you which lasted some minutes and required the intervention of the emergency response team which came in to break up the melee.  Ultimately that action was successful, but not until after Mr Dempsey and Mr Eminy had received injuries at your hands.	

5	Those injuries are depicted in photographs that were provided to the court.  It is upon that factual foundation that I proceed to sentence you.  The offences to which you have pleaded guilty are subject to a maximum term of imprisonment of five years.  You, Mr Ali, do not have any prior criminal history.  You, Mr Maliet, do have a prior criminal history which contains, amongst other things, offences of violence relevant to sentence.
6	Mr Ali, your counsel provided me with a written outline of plea submissions which is Exhibit A-1 on the plea hearing, a letter from Jack McComb of Parkville College dated 26 June 2024 - Exhibit A-2, a clinical neuropsychology assessment report of Dr Sarah Sherwell dated 16 May 2024 - Exhibit A-3, a letter from Dr Sarah Sherwell - Exhibit A-4, a neuropsychological report of Dr Sara Fratti dated 26 June 2024 - Exhibit A-5, a forensic psychiatric report of Dr Prashant Pandurangi dated 28 June 2024 - Exhibit A-6, a psychology report of Ms Courtney Stevens dated 28 June 2024 - Exhibit A-7 and a speech, language and communication assessment report dated 13 October 2023 - Exhibit A-8.
7	I found the written submissions of your counsel particularly helpful and balanced, and he summarises the effect of those various exhibits that I have just referred to. 
8	Mr Maliet, your counsel also provided me with a comprehensive set of written plea submissions which became Exhibit M-1 at the plea hearing, along with a report from Alison Mynard, clinical psychologist, dated 15 June 2024 - Exhibit M-2.  
9	All of the exhibits that were relied on in respect of each of you were provided to Her Honour Justice Incerti for your sentencing hearing which took place on 15 July 2024 and resulted in her sentencing orders made on 24 July 2024.
10	In respect of some of that material it was made clear that it was not desired that details of some of the history relied upon should be made public.  Her Honour respected that request and dealt with a summary of the material in her reasons for sentence.  Her findings are set out in those reasons.  
11	There were other offenders sentenced on that date.  Her Honour refers to each of those.  Her assessment of factors relevant to sentence included your relative youth.  Your offending in respect of this matter took place when you were 18 years of age.  You are now each 20 years of age.  There are principles which are to be applied for youthful offenders and young offenders.  I reflect in the sentence that I intend to impose those same principles.  
12	It is clear that in respect of each of you, the 'Bugmy principles', at least in a general sense, apply as a result of your childhood deprivation.  Each of you has mental health issues relevant to sentence.  
13	Another principle to which I have to give proper weight is parity of sentence.  There is one offender who was sentenced arising from the same incident for which I have to pass sentence.  He was also a young offender and received a sentence of one month’s imprisonment.  The facts that relate to him indicate that he played a much lesser role than either of you in the offending conduct.  
14	It seemed to me, looking at the video footage, that each of you played a lead role in the offending against the two prison officers and in the affray.  The attack upon those prison officers was sustained, quite vicious and totally unprovoked.  It was committed against persons who are vulnerable because of their roles and in respect of whom the courts must give proper weight to general deterrence to deter others who may be in similar circumstances from committing offences against Youth Justice Centre staff responsible for your care in custody.
15	I do not think it is necessary, given the findings that are clearly relevant as set out in Her Honour Justice Incerti's reasons for sentence on 24 July 2024, to go through all of those in detail.  I take those matters into account in this sentencing exercise in a similar way to Her Honour in determining an appropriate sentence in your cases.  The fact that you are undergoing substantial sentences presently is something I have to consider.  
16	The law requires me to take into account the fact that the offending falls under certain provisions of the Sentencing Act relating to prison offences.  Ordinarily I would be required to impose sentences that would be wholly cumulative upon the sentence you are serving unless I am satisfied that exceptional circumstances exist.
17	MR GORDON:  Your Honour, I very much hate to interrupt while Your Honour is passing sentence, but I've just noticed that my client does not appear to be on – I think he just dropped out a minute ago.  I just wanted to check, I'm sorry.
18	HIS HONOUR:  Do you want him back online?
19	MR GORDON:  I am very happy to talk to him and I'm going to be talking with him afterwards.  It's a matter for Your Honour.
20	HIS HONOUR:  Yes.  I understand from my tipstaff that he was getting very agitated and that the prison staff decided to take him out.
21	MR GORDON:  Okay.	
22	HIS HONOUR:  And it may well be that things that I have said have contributed to that or it may well be that he is not going to be easy to calm down.
23	MR GORDON:  Understood, Your Honour.  I just wanted to draw it to Your Honour's attention in case it was something else.  Thank you.
24	HER HONOUR:  Thank you, I am glad you did and I have only just been made aware of it although I guess it was pretty obvious from the fact that he had disappeared from the screen.
25	MR GORDON:  Yes.	

26	HIS HONOUR:  But if you are happy with me doing so, I will continue with my sentencing remarks.
27	MR GORDON:  I am, thank you, Your Honour.
28	HIS HONOUR:  I do find that exceptional circumstances exist for the reasons put forward by counsel.  It seems to me that the mental health issues of each of you, coupled with application for the Bugmy principles, do enable me to impose a sentence that is not wholly cumulative.  I am required to set a new overall non-parole period and that implies I think clearly that I need to set a new overall head sentence.  I need to give proper consideration to what those sentences should be having regard to the principles that normally apply to sentencing and particularly fulfilling the obligations under the Sentencing Act.
29	Now, doing the best I can to marry all of those principles, in particular having regard to the quite serious nature of the offending and the need for the application of principles of general deterrence, I propose to sentence as follows.  
30	First dealing with you, Samatar Ali.  For the offence of affray, Charge 1, I convict you and sentence you to imprisonment for 12 months.  On Charge 2 of recklessly causing injury to Raymond Dempsey, you are convicted and sentenced to imprisonment for 16 months.  On Charge 3 of recklessly causing injury to Greg Eminy, you are convicted and sentenced to imprisonment for 16 months.  
31	I order that three months of the sentence on Charge 3 be served cumulatively upon the sentence of 16 months on Charge 2, making a total effective sentence of imprisonment for 19 months.  I order that 16 months of that sentence be served cumulatively upon the head sentence of 19 years' imprisonment that you are presently serving, which makes a new total effective sentence of 20 years and four months' imprisonment.	

32	I fix a non-parole period of 15 years, which is effectively 12 months more than the non-parole period that was imposed by Her Honour Justice Incerti.  
33	I understand I am required to make a declaration under s6AAA of the Sentencing Act.  I declare that but for your pleas of guilty, I would have sentenced you to imprisonment for 22 years and six months with a non-parole period of 16 years.
34	In respect of you, Q Maliet, on Charge 1 of affray you are convicted and sentenced to imprisonment for 12 months.  On Charge 2 of recklessly causing injury to Raymond Dempsey, you are convicted and sentenced to imprisonment for 16 months.  On Charge 3 of recklessly causing injury to Greg Eminy, you are convicted and sentenced to imprisonment for 16 months.  Three months of the sentence on Charge 3 is to be served cumulatively upon the sentence of 16 months on Charge 2, making a total effective sentence in your case of imprisonment for 19 months.  Again in your case, I order that 16 months of that sentence be served cumulatively upon the sentence that you are presently serving, which makes a new total effective sentence of 20 years and 10 months' imprisonment.  I fix a new non-parole period in your case of 15 years and six months.  
35	I declare that under s6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 23 years' imprisonment with a non-parole period of 16 years and 6 months.
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