IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

Not Restricted

S CR 2015 0104

THE QUEEN
v
BALENGA KALALA
--JUDGE:

WARREN CJ

WHERE HELD:

Melbourne

DATE OF HEARING:

16 November 2015

DATE OF SENTENCE:

11 December 2015

CASE MAY BE CITED AS:

R v Kalala

MEDIUM NEUTRAL CITATION:

[2015] VSC 713

---

--APPEARANCES:

Counsel

Solicitors

For the Crown

Mr D A Trapnell QC

Mr J Cain, Solicitor for Public
Prosecutions

For the Accused

Mr I G Crisp

Thexton Lawyers

 HER HONOUR:
Introduction
1

Balenga Kento Kalala, you have pleaded guilty to one count of incitement to murder,
in that on or about 17 February 2015, you incited Kigwasa Rusomoka Fredy to
murder your de facto partner, and the mother of your children, Noela Rukundo.

2

The maximum sentence for incitement to murder, both in Victoria and in Burundi is
life imprisonment.1

3

You are 39 years old. You came to Australia as a refugee. You are well educated,
have maintained steady employment and established yourself as hardworking and
reliable. You have no relevant prior convictions. Yet you have perpetrated a very
serious offence, against a woman whom you claimed to love.

4

I will begin by setting out your background, before turning to the circumstances of
the offence and other matters which the law requires me to consider.
Background

5

You were born in the Democratic Republic of the Congo, in an area close to the
Burundian border. You are a member of the Bafuleru tribe. Your parents were
farmers and still live in the Congo. Your siblings, two brothers and three sisters, are
all in refugee camps in either Botswana or Burundi. Apparently, you regularly
provide financial assistance to your relatives back in Africa.

6

You received a good education. After completing the Congolese equivalent of year
12 you undertook further studies, in French, and obtained a Diploma of Commerce
and Management. However, you never worked in this field.

7

At the age of 24 or thereabouts you married a girl from your village, and together
you had a son. About a year later a rebel group came through your village. The

1

SC:SW

See s 321I of the Crimes Act 1958 and art 211 of the Penal Code of Burundi.

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R v Kalala

 rebels brutally killed your wife and young son, and tried to recruit you into their
army. Fortunately, you managed to escape. You fled to Botswana, where you spent
about 12 months in a refugee camp, before coming to Australia in 2004 as a refugee.
8

When you arrived in Melbourne, you had some friends here but no family. You
soon commenced a de facto relationship with Ms Rukundo, and together you had
three children: two sons (currently aged 10 and 11) and a daughter (aged 5).
Ms Rukundo also has five children from previous relationships, and you all lived
together. In your view, it was a fairly happy relationship; you and Ms Rukundo had
arguments but continued to live together. In 2011 you travelled together to your
respective home countries, in your view, again fairly happily.

9

Since arriving in Australia you have maintained steady employment. Initially, you
worked in a seafood processing factory for 12 months, before enrolling in TAFE to
improve your English skills. You then obtained employment in a warehouse in
Campbellfield. You worked there for many years, initially as a packer and later as a
forklift operator, until the business closed in 2011. Thereafter until your arrest you
worked for a paint supply company in Footscray, as a picker and forklift operator.
At that stage you were earning $600 a week net.

10

Your friend, Matendo Byamasu, made a statement on your behalf. He described you
as a mature man who is always ready to help others, and described how you would
often give advice to the younger members of your community. He said he had never
known you to be in trouble with the police.

11

The circumstances I have just described paint a picture of a hardworking, decent
man, who abides the law and cares for his family. Yet you have committed a very
serious offence.
Circumstances of the offence

12

On 21 January 2015, Ms Rukundo travelled to Burundi to attend her stepmother’s
funeral and visit relatives. It was intended that you would remain home and look

SC:SW

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 after the children.
13

While Ms Rukundo was away, you were told by an acquaintance that she was seeing
another man. There has never been any proof of the allegation. Although you had
no proof, you became jealous and angry. In your police record of interview you also
described frustration at not being able to access a particular bank account while
Ms Rukundo was away. You speculated, again without proof, that Ms Rukundo had
blocked the account and was spending the money for herself, with another man.

14

It was at that point that you asked your friend in Burundi, Kigwasa Rusomoka
Fredy, to arrange for Ms Rukundo to be killed. On 17 February you transferred him
about $3,400 AUD via Western Union as payment for her murder.

15

You remained in regular contact with Ms Rukundo while she was away in Burundi.
On 17 February you spoke with her over the phone while she was at her hotel. She
spoke about the heat, and you advised her to go outside for some fresh air. After the
conversation concluded, Ms Rukundo took your advice and walked out of the hotel
and onto the street.

16

There she was approached by a man armed with a firearm and forced into a vehicle.
In the vehicle were two more men. They covered Ms Rukundo’s face and drove her
to an unknown location.

17

There she met a fourth man, who explained that you had paid the four of them to
kill her. He said, however, that they would not murder her as they did not wish to
kill a woman, and because he knew her brother.

18

The man told Ms Rukundo that he would attempt to get more money from you. On
18 February, while Ms Rukundo was still being held, you had two consecutive
conversations (in Swahili) with the kidnappers. During these conversations, the
kidnappers informed you that they had completed the ‘job’, and that it was a ‘big
job’. They demanded more money. Although you did not indicate whether or not
you would meet that demand, you expressed your gratitude to the kidnappers,

SC:SW

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 telling them they were ‘like family’, that you would have more ‘jobs’ for them, and
that they should not let the issue of money come between you.
19

The same day, 18 February 2015, you transferred Mr Fredy a further $3,400 AUD.

20

During the time Ms Rukundo was being held, you were contacted by her brother,
Desire Shukurumungu. He lives in Burundi. The brother told you that Ms Rukundo
was missing, and sought financial assistance from you to help find her.

You

forwarded him a total of $545.00 AUD by way of two separate Western Union
transactions for the purpose of paying the local police to commence an investigation
into Ms Rukundo’s disappearance.
21

You informed many people in your community that your wife had been killed whilst
overseas in a tragic accident. The local African community in the western suburbs of
Melbourne gathered around you and provided significant spiritual and financial
support.

22

On 19 February 2015, Ms Rukundo was released by her kidnappers. There were
indications that she was subjected to violence during her two days’ captivity.
However, in the absence of evidence I make no finding in that respect. Upon her
release the kidnappers gave her a memory card containing the recorded telephone
conversations between yourself and the kidnappers in relation to her proposed
murder, as well as the Western Union receipts for the cash transfers to Mr Fredy.

23

Immediately after her release, Ms Rukundo telephoned Pastor Dassano Harruno
Nantogmah in Melbourne. She explained her situation and requested his assistance
to return home to Australia.

24

Ms Rukundo arrived in Melbourne on 22 February 2015 and confronted you at the
family home.

You expressed your surprise at seeing her alive but vehemently

denied any wrongdoing. Indeed you threatened Ms Rukundo by telling her that you
would do something that she would never forget.
25
SC:SW

Ms Rukundo called for the police to attend. When the police arrived, they requested
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R v Kalala

 that you leave. The police at that time applied for an intervention order, which was
granted and served upon you the following day.
26

After the police left, Pastor Nantogmah arrived. He called you back to the house.
When you arrived, you confessed your offending, first to the pastor in private, and
subsequently to Ms Rukundo. You begged for her forgiveness.

27

On 26 February, Ms Rukundo made a formal statement to police, and provided them
with the evidence that the kidnappers had provided to her. The same day, an
interim intervention order was issued against you.

28

On 28 February, at the request of the police, Ms Rukundo spoke with you on the
telephone in a conversation which was recorded. During your conversation you once
again made full confessions. You explained that you believed she was having an
affair and that you wished her dead because you loved her. Once again you begged
for her forgiveness and expressed regret.

29

On 2 March, an intervention order was issued with full conditions, naming you as
the respondent. Following the hearing, you were arrested and taken to be formally
interviewed. You cooperated with the police, but initially denied any involvement
in the kidnapping and related events. Indeed, you provided a contradictory version
of events.

The pretence lasted for hours.

However, once the police described

Ms Rukundo’s version of events, your conversation with Pastor Nantogmah and
played the recorded conversations, your demeanour changed; you became solemn
and tearful. Importantly, you made full and frank admissions, and you confirmed
the contents of the recorded conversations between yourself and the kidnappers and
also the recorded conversation between you and Ms Rukundo.
30

During your police interview, you repeatedly begged for forgiveness. You said you
did not know why you committed the offence. You said ‘sometimes [the] devil can
come into someone to do something but after they do it, they start thinking “why I
did that thing?” later’ and you said that the devil sent you to do these things. You
said your heart was heavy. You expressed concern for your children and your

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 relatives back home, and about how they would cope without your support.
Impact on the victim
31

Ms Rukundo made a victim impact statement. I have taken into account those parts
of her statement which relate to the impact of this crime.

32

I accept that your offending has had a devastating effect on Ms Rukundo. In her
statement she wrote of loneliness and isolation, having been shunned by her
community for speaking out about these events; she said she feels as though people
blame her for this crime. She wrote of sleepless nights and trouble eating, of suicidal
thoughts and panic attacks, of requiring medication, and of financial troubles. It is
clear from her statement that she is scared for her safety, and worried about her and
her children’s futures. You acknowledge, through counsel, that the effect of your
offending on Ms Rukundo has been profound.

33

Although your children did not make victim impact statements, these events have
no doubt had a profound effect on them too. Ms Rukundo in her statement wrote of
one child experiencing difficulties.
Gravity of the offence

34

Incitement to murder is a very serious offence; its seriousness is borne out in the
maximum penalty set by Parliament – life imprisonment.2 This Court has said some
cases of incitement to murder may warrant more serious punishment than some
cases of murder.3 The offence covers a broad range of offending.

35

The Crown submitted and I accept that your offending is a very grave example of
incitement to murder. The target was your de facto partner of 10 years, the mother
of your three children and five others. It involved a great breach of her trust. Had
Ms Rukundo’s kidnappers completed the job, eight children would have lost their
mother. It was premeditated and motivated by unfounded jealously, anger and a

2
3

SC:SW

R v Massie (1991) 1 VR 542, 553 [41] (Brooking JA, Winneke P and Batt JA agreeing).
Ibid.

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R v Kalala

 desire to punish Ms Rukundo. You sent her to her kidnappers by telling her to go
outside her hotel in full knowledge that they were waiting to take her, and in full
expectation that she would be killed.
36

This makes your offending all the more serious. You placed her in an extremely
vulnerable position, at the mercy of her kidnappers. At no point did you attempt to
call the murder off.

Indeed, upon being informed that the job was done you

expressed gratitude, not regret, and you sent Mr Fredy further funds.
37

These factors indicate a high degree of moral culpability. Such behaviour is totally
unacceptable and cannot not be tolerated. People should be able to expect protection
from their partners, not violence.4

Family violence is an issue with which our

community is tragically plagued.

Your offending was a bad example. A clear

message must be sent to the community. General deterrence and denunciation are
therefore important sentencing considerations in this case.
Factors in mitigation
38

I have taken into account the mitigating factors put forward by counsel on your
behalf.

39

First, I acknowledge that you have no prior convictions and are of previous good
character, and that your offending was therefore out of character. I appreciate that
you had a difficult upbringing in the Congo and were forced to flee your homeland
in very upsetting circumstances. Since coming to Australia you have established
yourself as a hardworking and reliable employee, and you have worked hard to
improve your English and provide for your family, including for those of
Ms Rukundo’s children who are not your own. As the Crown noted on the plea,
however, offences of this type are often committed by people with no prior
convictions who are otherwise of good character.

40

I consider that you have good prospects of rehabilitation and that the need for

4

Felicite v The Queen (2011) 37 VR 329, 333 [20] (Redlich JA, Harper JA agreeing).

SC:SW

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 specific deterrence is moderated by your clean record. I acknowledge also that your
offending was connected to a particular circumstance – namely your unfounded
belief that Ms Rukundo was being unfaithful – which may be unlikely to occur
again.5 However, upon your release you may be faced with similarly provocative
angering circumstances, and it is important that you be deterred from reacting in a
similar fashion in future. Hence, specific deterrence is relevant to a modest extent.
41

Secondly, I acknowledge that you made full admissions at an early stage – to your
pastor, to Ms Rukundo and importantly to the police – and that on several occasions
you expressed regret and begged for forgiveness. I find in your behaviour some
remorse. However, I find your level of remorse to be tempered by the fact that you
initially denied any wrongdoing – indeed you engaged in a charade of sorts – until
you were confronted with the overwhelming evidence against you. In the meantime
you accepted the spiritual and financial support of your community on the pretence
that Ms Rukundo died in an accident. Your remorse is also tempered by your
various attempts to shift the blame for your actions – whether it was to the ‘devil’, to
Ms Rukundo for not leaving sufficient money while she was away, or to the person
who told you she was having an affair.

Finally, I note that in your record of

interview, the focus of your ‘remorse’ was primarily the effect your conviction
would have on you, your relatives in Africa and your children, rather than the
consequences of your offending for Ms Rukundo. You were concerned about how
you would pay your mortgage and what would happen to your job.

In the

circumstances, whilst relevant, I do not consider your level of remorse to be a
particularly significant mitigating factor.
42

Thirdly, and in any event, I acknowledge that your early guilty plea has saved the
justice system considerable time and expense and, importantly, has spared
Ms Rukundo the further trauma of a trial. You are therefore entitled to a discount.

43

Fourthly, a report of forensic psychologist Associate Professor Andrew Carroll was
tendered on your behalf. He found no evidence that you were mentally ill at the time

5

SC:SW

See R v Najibi [2015] VSC 260 [45] (Emerton J).

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 of your offending. He concluded that your offending was motivated by anger, and
that the subsequent attribution of your behaviour to the ‘devil’ was probably a
‘defensive manoeuvre to externalise responsibility’. You told the psychologist that
you knew what you were doing was illegal. Associate Professor Carroll said, and I
accept, that your mental state deteriorated following incarceration, and that, given
your history of trauma, you are more vulnerable than the average person to
excessive anxiety when subjected to stress. Your counsel urged that you be viewed
as a person with a troubled background who was susceptible to anxiety. However,
Associate Professor Carroll said in his report there was no good evidence you were
suffering from any mental illness at the time of your offending. It appears that you
are now not suffering from any diagnosable mental disorder, and that there is no
other evidence that your mental health issues will make prison more burdensome
than average for you, or that prison will have a disproportionately adverse effect on
your mental health. I note that none of the Verdins principles6 were agitated or
engaged.
44

While all the factors to which I have referred must properly be accorded weight in
mitigation, the sentence I impose must also necessarily be proportionate to, and
reflect the gravity of, the crime, the impact on the victim, and the need for specific
and general deterrence,7 which I have also described.
Sentence

45

This brings me to your sentence.

46

Balancing all the factors I sentence you as follows.

47

Balenga Kalala, would you please stand.

48

You are convicted of one count of incitement to murder. I sentence you to a term of
imprisonment of 9 years, with a non-parole period of 6 years.

6
7

SC:SW

R v Verdins (2007) 16 VR 269.
DPP v Smeaton [2007] VSCA 256 [22] (Dodds-Streeton JA, Maxwell P agreeing).

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 49

Pursuant to s 6AAA of the Sentencing Act, I declare that were it not for your guilty
plea, I would have sentenced you to a term of imprisonment of 10 years and 6
months, with a non-parole period of 7 years and 6 months.8

50

I declare that the period of pre-sentence detention reckoned as having been served is
284 days up to but not including today and direct that this declaration and the
period be entered into the records of the Court.

8

SC:SW

See Sentencing Act 1991 s 6AAA.

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