Court Determines Sentence for Accused in Manslaughter Case

DPP v Ooi [2021] VSC 591 (17 September 2021)

Huai De Ooi  engaged in unlawful and dangerous acts, through a prolonged attack against Mr Bolat.  The Court, in determining the appropriate sentence for Mr Ooi, took into consideration his late plea and its value during COVID-19 pandemic, remorse, delay, the lack of psychological considerations, and the lack of prior offending.

Facts:

Mr Ooi was working as a contractor at fruit farms in the Shepparton area.  Hariphong also lived in the Shepparton area and helped him with sourcing workers.  Mr Ooi lived at 215 Hill Road, Lemnos (‘the Lemnos property’), approximately 15 minutes north east of Shepparton with his girlfriend Ahmad and other migrants including Lee, Kannan, Zakaria, Azzahar, and Abdullah.  Kong resided at 20 Jubilee Lane, Ardmona with Pei Ching Bee.  Mr Bolat and his brother Ernie both worked as fruit pickers in the Shepparton area. 

Around April 2018, Hariphong introduced Mr Ooi to Mr Bolat and Ernie.  Mr Bolat was buying drugs from Mr Ooi.  Mr Ooi and Mr Bolat agreed that he would pay off a drug debt by transferring ownership of a silver BMW to Mr Ooi.  Mr Ooi disputes that Mr Bolat owed him money for drugs but does not dispute that Mr Bolat’s failure to transfer ownership of the BMW to him was a source of friction between them.  Mr Ooi asked Ernie to talk to Mr Bolat about transferring the silver BMW into his name. 

On 12 August 2018, Mr Ooi allowed Mr Bolat to stay at the Lemnos property.  On Monday 13 August, he was there with Mr Ooi, Lee, Kannan, Zakaria, Abdullah and Ahmad.  Mr Ooi rang Hariphong and told him he no longer wanted Mr Bolat staying at the Lemnos property and asked Hariphong to come over to help remove him.  Hariphong asked Tunumafono to drive him to the Lemnos property.  Mr Ooi fought Mr Bolat because of the silver BMW. 

Lee, Kannan, Hariphong and Tunumafono all joined in assaulting Mr Bolat.  Mr Ooi struck Mr Bolat's leg with a wooden stick and a metal pole repeatedly.  He apparently shot at the ground between where Mr Bolat was and the dinner table, however there was no evidence of a shot in the floor of the home.  While Mr Bolat was laying on the floor, Mr Ooi and Kannan threw black metal gym weights on Mr Bolat’s head causing the latter to die.  It is this act which is the basis of the charge of manslaughter by unlawful and dangerous act. 

Kannan was alleged to have intention to kill Mr Bolat because of his repeated throwing of gym weights.  Mr Bolat who had only thrown it twice was allegeged to have no intention to kill Mr Bolat.  On 22 August 2018, Mr Ooi went to the Shepparton Police Station informing them that Mr Bolat was making false accusations of people having raped his ex-partner Emma Pridmore.  Mr Ooi said that he had not seen Mr Bolat since the afternoon of 13 August 2021.  On 10 October 2018, Victoria Police members executed search warrants at the Lemnos property.

Mr Ooi, Lee and Kong were arrested. Lee informed the police about the dumping of Mr Bolat’s body and the body was later recovered.  Lee, Kong, Hariphong and Tunumafono have all pleaded guilty to and been sentenced for offences relating to events surrounding Mr Bolat’s death.  On 16 June 2021, Mr Ooi pleaded guilty to the manslaughter of Mr Bolat.  He has previously been charged with murder. On 10 September 2021, the prosecution opening was heard from Ms Churchill of counsel, submissions from Mr Gullaci of counsel on Mr Ooi's behalf and further from Ms Churchill on sentence.

Issue:

Whether or not the appropriate sentence for the charge of manslaughter in this case is 11 years and six months imprisonment. 

Applicable law:

Sentencing Act 1991 (Vic) s 6AAA - provides that if  in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because the offender pleaded guilty to the offence; and the sentence imposed on the offender is or includes  an order under Division 2 of Part 3; or  an order that the offender serve a term of imprisonment; or a community correction order for a period of 2 years or more; or a fine exceeding 10 penalty units; or an aggregate fine exceeding 20 penalty units, the court must state the sentence and the non‑parole period, if any, that it would have imposed but for the plea of guilty.

Worboyes v The Queen [2021] VSCA 169 - where it was held that a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.

Rodriguez v. DPP (Cth) [2013] VSCA 216 - provided that delays cause a degree of anxiety and uncertainty.

DPP v Dalgliesh (a pseudonym) [2017] HCA 41 - provides that current sentencing practices are one matter that inform the proper sentence to be imposed although they are not to be regarded as a determinative factor.

Analysis:

Mr Ooi attempted to conceal his offending and misled investigating police officers. When he did make limited admissions in a record of interview, he significantly minimised his role.  His attempts to distance himself from the offending are consistent with the behaviour of a person who was panicking after placing themselves in an unfamiliar and extremely serious situation.  There are no psychological considerations relevant to the sentence as the psychologist for the counsel's report shows that Mr Ooi's history is unremarkable, in the sense that it does not explain why he committed the offence.  The utilitarian value of Mr Ooi's plea of guilty to manslaughter is magnified to some degree by the fact that it is entered during a pandemic.

Since the matter was already in place by August 2018, the delay would have caused Mr Ooi a degree of anxiety and uncertainty.  Given the timing of his plea, any expression of contrition for the offending occurred very late in proceedings.  Such expressions of regret, to the extent that it considers Mr Bolat and his family, is somewhat measured and sparse in its expression.

Conclusion:

The Court concluded that the appropriate sentence for the charge of manslaughter in this case is 11 years and six months imprisonment.  A period of eight years and six months is fixed to be served before Mr Ooi becomes eligible to apply for release on parole.  The pre-sentence detention is a period of 1073 days and the Court directs that it be recorded in the records of the Court and treated as time already served.  The disposal order and two forfeiture orders sought by the prosecution is made, consented to by Mr Ooi.