Director of Public Prosecutions v Ahokava
[2024] VCC 215
•1 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01328
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ETU AHOKAVA |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2024 | |
DATE OF SENTENCE: | 1 March 2024 | |
CASE MAY BE CITED AS: | DPP v Ahokava | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 215 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Plea of guilty – offences of prohibited person possessing an imitation firearm – common law assault – kidnapping – offending occurred in company – imitation firearm used to assault the victim – relevant criminal history – diagnosed intellectual disability – youthful offender – finding that the offender acted on the instructions of others – offender actively engaged in offending - general deterrence, denunciation principle sentencing considerations – kidnapping a Category 2 offence – exemption under s5(2H) not met - subsequent sentence of imprisonment - totality – reasonably good prospects of rehabilitation – reasons for fixing of lower non-parole period.
Legislation Cited: Control of Weapons Act 1990; Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991
Cases Cited:Berichon v. R (2013) 40 VR 490; Muldrock v. The Queen [2011] HCA 39
Sentence: Three years, six months’ imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. P. Fitzgerald | Office of Public Prosecutions Victoria |
| For the Accused | Mr C. Nikakis | Haines & Polites, Lawyers |
HER HONOUR:
1Etu Ahokava, on 8 November 2023, you pleaded guilty to the following three offences:
· one charge of being a prohibited person in possession of an imitation firearm contrary to s5AB(2) of the Control of Weapons Act 1990, the maximum penalty for which is 10 years' imprisonment;
· one charge of common assault contrary to common law, the maximum penalty for which is 5 years' imprisonment;[1] and
· one charge of kidnapping contrary to common law, the maximum penalty for which is 25 years' imprisonment[2].
[1] Pursuant to s 320 of the Crimes Act 1958.
[2] Pursuant to s 320 of the Crimes Act 1958.
2You were born in January 2000 and were 22 years old at the time of the offending.
Summary of Offending
3The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 13 February 2024, which is the agreed basis upon which you are to be sentenced.
4By way of background, the victim in this matter, Mr Sanjeewa Koralage, was living in the bedroom of a house in St Albans that he had sub-let from the tenants of the property, Van Vu and Thi Nguyen in early 2022.
5Several other people were subletting from the tenants at the time of the offending.
6The charges arise from the events of Friday 25 March 2022. On that date, the victim was asleep in his room in the afternoon when the tenants knocked on his bedroom door and told him to move out. The tenants told the victim that if he did not move out that day, 'there would be trouble'. The victim did not think much of the threat and returned to sleep.
7At approximately 7.00pm you and an unknown male attended the property in a black van. CCTV footage at the property captured the van arrive and park in the garage.
8You and the co-offender were let into the property by the tenants, Van Vu and Thi Nguyen. The victim, Mr Koralage, was awoken by the sound of the tenants knocking on his bedroom door. However, the tenants did not enter the room. Instead, you and the co-offender walked into the room.
9Once inside the bedroom, the co-offender grabbed the victim by his shirt and told him to get out of the bedroom. He then dragged the victim out of his room by the arm.
10When the victim had been dragged outside his room, you grabbed him by the front of his shirt and demanded that he vacate the property. You then reached behind your back and produced a black imitation handgun. You were a prohibited person under the Firearms Act 1996 at this time, and were therefore prohibited from possessing a firearm. Your conduct in possessing the imitation firearm is the subject of Charge 1.
11You pointed the barrel of the imitation firearm directly at the victim's head, stating, 'If you don’t move out, I am going to kill you'.[3] It is in the context of having said this, that you then struck the right-hand side of the victim’s head with the butt of the imitation firearm. The strike to the victim's head resulted in laceration and bleeding to his forehead. This conduct gives rise to Charge 2 – common assault.
[3]This is an uncharged act.
12While the victim was bleeding from the head, you forced him down the stairs while still holding the imitation firearm in your hand. At the bottom of the stairs, Mr Koralage pleaded with you, saying 'I don’t want to go with you'.
13As the victim was forcibly removed from the property by you and the co-offender, the tenants and other residents packed the victim's belongings and walked them downstairs, leaving them on the floor of the garage.
14Once down the stairs, you forced the victim out the backdoor of the property and towards the garage. You then struck Mr Koralage to the head with the butt of the imitation firearm a second time.[4] Having entered the garage where the black van was parked, you pushed the victim into the rear of the van.
[4]This is an uncharged act.
15
Once inside the van, the victim was forced to sit on the floor. You told him that you were taking him to your cousin's house. The co-offender entered the driver's seat of the van while you sat in the rear with the victim. The co-offender drove for approximately 10 minutes before stopping at the side of road in the vicinity of
9A The Esplanade, Sydenham. You told the victim to get out of the van and threw his mobile phones out of the van after him. The two of you then drove off, leaving the victim at the side of the road. This is the conduct that is the basis of Charge 3 – kidnapping.
16Shortly before 8 pm, the victim called Triple 0 requesting an ambulance for his injuries. Triple 0 also notified police.
17Shortly after this, Mr Koralage received a call from one of his friends who told him that the tenants had dropped the victim’s possessions at his house, which was also in Sydenham.
18The police attended at 9A The Esplanade, Sydenham at 8.06 pm and located the victim. He appeared dazed and confused and had obvious head injuries, with blood stains on his face and hooded jumper. Ambulance paramedics were called and transported the victim to hospital for treatment. He was discharged the following morning.
19You had never met the victim or had any involvement with him prior to 25 March 2022.
20Later that day, the police attended the residence and seized the CCTV footage. Forensic analysis of DNA samples taken from the stairwell and from the victim's clothing was later linked to you. The other offender has not been identified.
21You were arrested and interviewed on 18 December 2022 during which you made no comment in response to questions asked by investigators, in accordance with your rights. You were remanded in custody that day.
Nature and gravity of offence
22This was undoubtedly serious offending. The gravity of your offending is borne out by a number of aggravating features.
23Firstly, the victim was asleep in his room when you and the co-offender entered to physically remove him from the house. He was entitled to be safe from violence in his home.
24Secondly, your offending occurred in company.
25Thirdly, not only did you possess the imitation firearm when you were a prohibited person, but you were prepared to use the firearm to assault the victim. You did so in the context of having first threatened to kill him.
26CCTV footage of part of the incident where the victim is accompanied by you downstairs, after he had been struck with the butt of the firearm, was produced at your plea hearing[5]. In this footage, you can be seen holding the black imitation firearm in your hand, as you move with the victim down the stairs. The imitation firearm is a realistic replica, and its presence can only have heightened the victim's fear for his safety throughout this ordeal.
[5]Exhibit C
27In cases where a prohibited person possesses a firearm (including an imitation firearm) for a specific criminal purpose, the law regards this as a more serious example of the offence, and usually calls for a more severe sentence.[6] Here, you possessed the imitation firearm, as a prohibited person, and used that firearm to assault and intimidate the victim in the course of your offending, culminating in the victim's kidnapping.
[6]Berichon v R (2013) 40 VR 490, at 496.
28Kidnapping is an inherently serious crime. Parliament has prescribed a maximum penalty of 25 years' imprisonment for this offence and designated it as a Category 2 offence which means that a sentence of imprisonment must be imposed, unless legislated exceptions are met. These provisions reflect the seriousness with which Parliament, on behalf of the community, regards the offence of kidnapping.
29I am conscious that you are not to be doubly punished for the distinct offending in this case. In other words, you are not to be punished twice for being in possession of the imitation firearm as a prohibited person, and for using that firearm to assault the victim. However, the fact you were prepared to use the firearm aggravates the circumstances, as a prohibited person, possessed the imitation firearm.
30This was a fast-moving, confrontational incident. The victim had pleaded for you not to take him with you, but you persisted. The point at which the victim was forced into the van, uncertain as to what would eventuate, must have been terrifying for him. That this is the case is reflected in Mr Koralage's victim impact statement in which he describes his fear, and says the incident has 'changed his life'.[7] Fortunately, the victim was only detained against his will for a relatively short period – approximately ten minutes - before he was told to exit the van and left at the side of the road in Sydenham.
[7]Exhibit D – Victim Impact Statement of Sanjeewa Koralage dated 17 January 2024.
31I accept the submission made on your behalf that you were clearly acting on the instructions of others. Nonetheless, it is of concern that you were willing to undertake this role at the behest of others, and to actively do so, in circumstances where you bore no personal grudge or grievance against the victim.
32In cases such as these, paramount importance attaches to the sentencing considerations of general deterrence and denunciation. Others must be deterred from being enticed, for whatever reason, to perform the role of an 'enforcer' for others. Offending of this kind must be clearly denounced by the sentence that is imposed.
33You bear significant moral culpability for your offending on this night, however this is also informed by your personal circumstances, to which I now turn.
Personal circumstances
34You were born in Melbourne in January 2000 and are now 23 years old.
35Your parents, both of whom are Tongan, arrived in Australia in the 1980s. You are the youngest of nine children, all but one of whom were born in Australia. You grew up with seven brothers and a sister, and you remain close to your family, especially your mother and sister. Your father lived in Tonga for much of your childhood in order to support the family financially, and you would assist your mother and siblings with family chores from a young age.
36After primary school, you commenced Year 7 at Victoria University Secondary College in Deer Park. Your attendance at school was poor, and you began to engage in disruptive and challenging behaviour in those early years. At the end of Year 7, your family sent you to Tonga to attend boarding school. You would stay at the boarding school during the week, and lived with relatives on weekends. You completed Years 8 and 9, and then left school to work for your father on the family's watermelon farm.
37At the age of 15, you returned to Australia to live with your sister in Sydney. In May 2016, you returned to Melbourne. You then began work as a concreter and before your remand were working as a traffic controller.
38In September 2016, your older brother Taniela, was shot and killed by police. This was a traumatic event for you and your family.
39Two psychological reports were tendered at your plea hearing by your treating psychologist, Ms Carly Burgess.[8] Ms Burgess also gave evidence at your plea hearing. Although Ms Burgess states you have not been formally diagnosed with PTSD, she says that following your brother's death, you experienced depression and anxiety, and have certain symptoms consistent with PTSD compounded by unresolved grief.
[8]Exhibits 1 & 2 – Psychological reports of Carly Burgess dated 28 April 2023 and 3 January 2024.
40Ms Burgess tested your cognitive capacity and assessed you as having a full scale IQ of 67, which falls in the extremely low range.[9] Ms Burgess explained that this result places you in the first percentile, meaning that you performed as well as or better than only 1 per cent of same aged peers. Ms Burgess states that your diagnosed intellectual disability results in certain cognitive deficits, leading to difficulties with sustained attention and concentration, and impaired adaptive functioning and poor consequential thinking.
[9]See Exhibit 2
41You have a relevant prior criminal history, but one that only commenced in October 2021. On 6 October 2021, you were sentenced to six months’ imprisonment in combination with an 18-month community correction order. This sentence was imposed for various incidents of offending that included recklessly causing injury, unlawful assault, carjacking by use of force to steal a car, reckless conduct endangering serious injury, possessing a prohibited weapon without exemption and using a prohibited weapon without exemption or approval. You were also sentenced that day for possessing methylamphetamine and ecstasy (MDMA) and for various driving offences. This was your first court appearance.
42You told Ms Burgess that you were engaging in 'chronic' methylamphetamine use at the time of your offending, and said that your drug abuse had increased around the time you committed this offence in March 2022.[10] You told Corrections you were using around 0.5 grams of ice at this time, in addition to GHB every other day. You have been abstinent from drugs since being remanded in custody.
[10]Exhibit 1
43You were further sentenced on 6 December 2022 to seven months' imprisonment in combination with a 12-month community correction order for family violence related offending against your former intimate partner. This is a subsequent criminal conviction and relates to offending against your partner in May 2022 that included assault with a weapon, common law assault, persistent contravention of a family violence intervention order and threat to inflict serious injury. To be clear, this is not a prior criminal conviction.
44Mr Nikakis reports that the weapons offences for which you were sentenced in the past involved the possession and use of knives, and not firearms.
45You described the relationship with your partner as 'tumultuous' in your sessions with Ms Burgess, explaining that the family violence offending was also fuelled by drug abuse. Following counselling sessions, Ms Burgess says you have shown some insight into the 'problematic behaviours and communication difficulties' which led to the breakdown of that relationship.
Matters relied upon in mitigation
46On your behalf, a number of matters were relied upon in mitigation of your sentence.
47First and foremost, you have pleaded guilty to these offences. At a committal hearing on 3 August 2023, you were discharged on two additional serious charges. Following an initial directions hearing in this court, you entered your guilty plea on the remaining charges on 8 November 2023. In the circumstances, I consider this was an early guilty plea. Your plea not only saved the court and the community the time and expense associated with a trial, but also spared the victim the ordeal of reliving the incident by giving evidence at a trial. By your plea, you acknowledge responsibility for your offending. There is remorse inherent in a plea.
48Secondly, and significantly, your intellectual disability is relevant to your sentence. In her evidence, Ms Burgess expressed the opinion that your permanent and life-long intellectual disability impairs your decision-making and the development of consequential thinking. She concludes that these cognitive deficits contributed to your offending behaviours in March 2022.
49The law recognises that the moral culpability of offenders is reduced where their capacity to rationally consider their actions and recognise the consequences of their conduct is impaired by an intellectual disability.[11] Your IQ falls within the extremely low range. I accept the unchallenged evidence of Ms Burgess that your intellectual disability contributed to your poor-decision making in engaging in this violent offending at the behest of others. Your moral culpability for the offending is reduced.
[11]Muldrock v The Queen [2011] HCA 39
50I have moderated the sentence I have imposed having regard to your diagnosed intellectual disability. However, there is no basis for me to conclude that you did not understand that your conduct on that night was wrong. The sentencing consideration of general deterrence is moderated, but not extinguished, having regard to your cognitive deficits.
51Thirdly, you were only 22 years of age at the time of this offending, and I have taken your youth into account. The law recognises that youthful offenders are generally more impressionable than older, presumably more mature offenders and that rehabilitation is an important objective when sentencing youthful offenders.
52Fourthly, the sentence of seven months' imprisonment (combined with a CCO) imposed on 6 December 2022, must be taken into account in determining the appropriate sentence for this offending in accordance with the sentencing principle of totality. You were released from custody on 18 December 2022 under that sentence. However, you were immediately arrested on these matters, and provided a forensic sample which linked you to the offending on 25 March 2022. You were then charged and re-remanded on 18 December 2022. Because of your remand status, you have not commenced the CCO imposed on 6 December 2022, which included conditions aimed at your rehabilitation, subject to a Justice Plan.
53Finally, since being remanded on 18 December 2022, you have continued to receive regular psychological counselling sessions with Ms Burgess, who first assessed you in September 2020. In her evidence, Ms Burgess says she has observed a shift in your maturity over this time. She assesses that you are able to identify strategies to deal with the risk of any relapse into drug abuse and other supports. You have now been approved for a support package through the NDIS, and you continue to have the support of your mother and sister. You have stable accommodation available to you with your sister and her family upon your eventual release.
54Assessing your prospects of rehabilitation is not straight forward. Since March 2021, you have engaged in repeated offending, including offences of violence, often in the context of drug abuse. The offending on 25 March 2022, represents a significant escalation in your offending conduct, particularly in circumstances where you were armed with an imitation firearm.
55Against this, you have strong family support, you have demonstrated motivation to engage positively in psychological counselling and will have services available to you through the NDIS. While your intellectual disability is permanent, Ms Burgess assesses you have developed maturity and strategies to manage the risk of reoffending upon your release. You are a young adult, with much of your life to live. Provided you continue to engage with these supports, including receiving ongoing treatment to prevent a relapse into drug abuse, I assess you have reasonably good prospects of rehabilitation.
56However, I consider that specific deterrence still has a role to play to deter you from future offending.
Other sentencing considerations
57I turn now to other sentencing considerations.
58The offence of kidnapping is a Category 2 offence under the Sentencing Act 1991. Pursuant to s5(2H) of that Act, the court is required to impose a sentence of imprisonment, which must not include a sentence of imprisonment combined with a community correction order, unless one of the exceptions in s5(2H)(a)-(e) apply. On your behalf, Mr Nikakis submits that these exceptions apply, primarily by reason of your diagnosed intellectual disability. On that basis, Mr Nikakis submits that a combination sentence, involving a sentence of imprisonment with no additional time to serve and a lengthy CCO should be imposed, to best promote your prospects of rehabilitation. You have been assessed as suitable for such an order.
59
Mr Fitzgerald, on behalf of the prosecution, argues that the evidence of
Ms Burgess does not meet the threshold for any of the exemptions under s5(2H) of the Act and submits that the gravity of the offending warrants an immediate sentence of imprisonment with a non-parole period fixed.
60Section 5(2H) of the Act, provides an exception to the mandated sentence of imprisonment for the offence of kidnapping where, at the time of the offence, an offender can demonstrate they have impaired mental functioning that is causally linked to the commission of the offence, and which 'substantially and materially reduces the offender's culpability'.
61There are therefore two limbs to the exception. I am satisfied your permanent intellectual disability impaired your mental functioning at the time of the offence. Based on Ms Burgess' evidence, I am also satisfied that your extremely low range of cognitive ability impairs your decision-making and capacity for consequential thinking and is therefore, causally linked to your offending. I accept that your intellectual disability also made you more susceptible to the influence of others. These impairments were additionally compromised by your abuse of methylamphetamine at the time of the offending.
62As to the second limb however, Ms Burgess' evidence does not satisfy me that your intellectual disability means you did not appreciate the wrongfulness of your conduct. You must have known that arming yourself with an imitation firearm, as a prohibited person, was wrong. You were not a mere bystander in the offending of others; to the contrary, you played an active role in removing the victim, assaulting him with the butt of the firearm and ultimately, forcing him into the van where he was detained, against his will. I am not satisfied that Ms Burgess' evidence establishes that your intellectual disability substantially and materially reduces your culpability for this offending.
63Ultimately, and irrespective of s5(2H) of the Act, I have concluded that the seriousness of the incident, and the criminality involved, warrants a sentence of imprisonment with a non-parole period fixed.
64Your personal and mitigating circumstances are relevant to my determination of the individual sentences to be imposed on these charges, and are especially relevant to the fixing of a non-parole period. In this case, I consider the combination of mitigating factors and the weight I attach to your intellectual disability in particular, warrants the imposition of a significantly lower non-parole period than I would have otherwise considered appropriate.
65I have had regard to the sentencing principle of totality, not only in relation to the sentence imposed on 6 December 2022, but in determining the amount of cumulation to be ordered in respect of these charges, noting that they arise from the one incident on 25 March 2022.
Sentence
66Balancing the matters to which I have referred, while having regard to the maximum penalty for each offence, I sentence you as follows:
67On Charge 1 – prohibited person possess an imitation firearm, you are convicted and sentenced to 18 months' imprisonment.
68On Charge 2 – common assault, you are convicted and sentenced to six months' imprisonment.
69On Charge 3 – kidnapping, you are convicted and sentenced to three years' imprisonment. This is the base sentence.
70I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon Charge 3. Charge 2 is to be served concurrently with the sentences imposed on Charges 1 and 3.
71This gives a total effective sentence of three years, six months' imprisonment. I fix a non-parole period of 2 years' imprisonment. This is the minimum period you must serve before you become eligible to apply for parole.
72Pursuant to s18 of the Sentencing Act 1991, I declare that 439 days of presentence detention be reckoned as served under the sentence I have imposed.
73I make the disposal order sought by the prosecution, noting it is not opposed.
74Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I otherwise would have imposed is four years, four months' imprisonment, with a non-parole period of three years.
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