Director of Public Prosecutions v Amato

[2017] VCC 84

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MILDURA
CRIMINAL JURISDICTION

CR 16-02022
CR 16-02179

DIRECTOR OF PUBLIC PROSECUTIONS

v

PENI AMATO
SEKONAIA VAVE

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	13 February 2017
CASE MAY BE CITED AS:	DPP v Amato
MEDIUM NEUTRAL CITATION:	[2017] VCC 84

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Davies
For Accused Amato	Mr B. Wood
For Accused Vave

Pages 1 - 11

 

 

HIS HONOUR: 

1I am going to sentence you both the same.  I am going to impose a total effective sentence of four years and nine months, but impose a minimum term of two years and three months and set off against that what time you have already served.  And I raise that now in part because the cumulation looks unusually small.  I will raise it now for your comment but I think,  seeing in the light of what I have just said, it is more understandable. 

2Charge 1, three years and ten months.

3Charges 2 to 6, 12 months; 2, 3, 4 and 5, only two months on each cumulative upon Charge 1 and each other, but that adds up to eight months; and on the firearm charge, three months cumulative - sorry, 12 months but three months cumulative. 

4As I said, it looks like meagre cumulation individualised like that but when you see it more broadly, I think it makes sense.  Do either of you want to make any further submissions having heard that?

5COUNSEL:  No, Your Honour.  

6HIS HONOUR:  It will take some time to do this and it will take say, 15 or
20 minutes.  Then, I will formally sentence you.  Could you tell me what is the updated pre-sentence detention?  Thank you.

7MR DAVIES:  Yes, Your Honour.  The current figure is 223 days.

8HIS HONOUR:  Thank you.  And the aunt of Peni Amato, Thelma Chilly spoke to the court.  Have I got her name correctly?  Is it Thelma?

9COUNSEL:  Yes, Your Honour.

10HIS HONOUR:  I am sorry.  Thank you.  And Chilly is spelt C-h-i-l-l-y?  Thank you very much.  They are prohibited persons in relation to firearm offences because of prior court appearances and (indistinct).  Thank you.

11Peni David Amato and Sekonaia Tualla Vave, you are both to be sentenced for one charge of aggravated burglary, four charges of false imprisonment - have I got that right?  Is it four?

12MR DAVIES:  That is right, Your Honour

13HIS HONOUR:  Four charges of false imprisonment and one charge of possessing a firearm as a prohibited person.  The maximum sentences are
25 years' imprisonment for aggravated burglary and ten years' imprisonment for both false imprisonment and this the  firearm offence. 

14You have pleaded guilty before me on 7 February.  When interviewed by police on 6 July 2016, you initially denied but then admitted your offending.  Committal went by hand-up brief on 4 October 2016,  after which you entered pleas of guilty.  The matter was then listed for hearing in this court. 

15Peni Amato, on 7 February, your matter was heard in the Koori County Court.  Elders, Auntie Raylene Watata Drummond and Uncle Peter Peterson, were part of the court and you spoke with them. 

16Mr Davies for the Crown tendered a written Crown opening, a booklet of photographs depicting the scene of offending and weapons used, and the victim impact statements of Pamela Baldwyn, Ellagena Tulla Kiono and Miliane Tulloa Kiona.   Mr Hilton-Wood for you tendered a number of letters of character reference, your own letter to the court and the psychological report of Ian McKinnon dated 31 January 2017.  Your aunt Thelma Chilly also spoke at the hearing. 

17Sekonaia Vave, your plea hearing ran separately before me on the same day.  Mr Davies tendered the same evidence.  Mr Howard for you tendered the psychological report of David Ball, dated 3 February 2017,  a  number of letters of character reference and a certificate related to a course completed by you in mobile crane operations.  Mr Howard also called you to give you evidence. 

18The circumstances of your offending are comprehensibly set out in the tendered Crown opening,  which is Exhibit A in both proceedings.  My own summary may therefore be shorter. 

19You are friends, as I understand  since childhood.  At the time of the offending, 2 July 2016, you, Peni Amato, were 20 and you, Sekonaia Vave, were 21.  You lived in the Robinvale area.

20You, Peni Amato, told the court that you had been drinking and using methylamphetamine.  You said that you had not slept for over 24 hours. 

21I was told that you, Sekonaia Vave, had been drinking and using cannabis. 

22I find that you were both affected by these substances.  You drove to Mildura, planning to go to a drug dealer's house and steal money and drugs.  You arrived not long after midnight.  Armed with a machete  (you, Sekonaia Vave), and a sawn-off shotgun  you,  (Peni Amato), you went to the home of Pamela Baldwyn.  She was there with her partner and three children aged 11, ten and seven.  It is clear to me, and perhaps you now that it was not the home of a drug dealer.  You were partially disguised. 

23When Pamela Baldwyn opened the door, she was pushed inside and you, Sekonaia Vave, entered.  You spoke to Peni Amato by name and he followed.  A gun was pointed at the 11-year-old boy, Elgin Travera Kierno, and demands were made for money and drugs.  You, Sekonaia Vave, forced the three children to the back of the house.  A further demand and threats were made.  Pamela Baldwyn pleaded for her children and that there were no drugs.  You decided to go.  Whilst you were there and before you left, there were threats to stab and shoot her.  At one point, you Sekonaia Vave picked up a pair of scissors. 

24A short time later, you and your vehicle were captured on a CCTV camera at the Buronga service station just over the river from Mildura.  Your counsel argued a lack of sophistication in the offending.  Police later observed the vehicle parked outside your Robinvale home, Peni Amato.  You were arrested together on 5 July. 

25The victim impact statement of Pamela Baldwyn particularly reveals the impact of your offending upon her emotional and psychological well-being.  She feels ongoing stress, anxiety, anger and fear.  There is a loss of sense of security in her home especially at night.  She has made arrangements to move address.  Relationships with her partner and children are damaged.  Ms Baldwyn has fears for the future well-being of her children.  She receives psychological treatment.  Both the police statements  and the two victim impact statements by her children reveal their fear and impact upon them.  They were frightened and angry.  They give, in their statements, graphic description of such feelings on the night.  They vividly remember, for example, the  barrel of the gun. 

26The victim impact of your offending is very considerable and must be taken into account in my sentence of you. 

27Peni Amato, you are now 21 years of age and presently placed in remand custody awaiting this sentence.  Your mother is an aboriginal woman of the Barkindji people.  Your father was Tongan.  He was a champion rugby player and captained that country's national side.   You were born and raised in the Mildura and then Robinvale area.  Your father was violent to your mother.  They separated when you were a young child and you had little contact with your father until a period living with him in late teenage.  He has fathered a number of other children.  You spent much of your childhood in the care of your extended Koori family.  Your grandmother was an important figure in that,  as she was with other children in the family.  She died when you were 14, which affected you badly.  Your mother suffers bipolar disorder and you have helped to care for her. 

28You left school after Year 11 and began seasonal farm work.  You began drinking alcohol and using cannabis in teenage.  That became worse when living with your father in Melbourne.  You returned to Robinvale but in your words to psychologist Ian McKinnon, your life was aimless.  You were using ice amphetamine and,  as you essentially explained in the sentencing conversation with your elders at court, you became dependent. 

29Mr McKinnon diagnoses polysubstance abuse disorder and depression related to the disadvantage of your early life.  He states that these conditions made contribution to your offending, likely affecting for example ability -I quote here - "ability to reason and make sound judgment."  It has not been put and I do not find that so-called Verdins principles apply.   I would find that imprisonment has been and will be more difficult because of your psychological health. 

30Mr McKinnon also states that you are of normal, good intelligence.  I further quote from another part of his report,

"In a general sense, Mr Amato appears to have suffered from chronic distress that dates back to his childhood.  His exposure to family violence, the unstable family arrangements he endured, his mother's psychological condition, his lack of a father figure and identity confusion."

31You presented to me during the sentencing conversation at court to have good insight into your offending and situation; and to have a strong desire to rehabilitate, to live a more productive, better life. 

32Peni Amato, your criminal record filed with the indictment states six court appearances between September 2007 (when you were on my reckoning aged 12 years) and April 2016.  All but one are Children's Court appearances and convictions were not recorded.  There are offences of dishonesty and violence.  On 18 April 2016, you were convicted in the Magistrates' Court for intentionally causing injury and received a community corrections order.  I note that this offending before me was committed whilst on that order. 

33I direct this to both of you.  This was self-evidently serious offending.  You entered Pamela Baldwyn's home in a frightening violent way.  You carried and brandished sinister weapons.  It happened in the dead of night.  Children were there and without doubt terrified at what you did.   I accept the firearm was not loaded, that you did not realise children would be there and,  as put on your behalf, the episode ended quickly.  There was, I accept, a realisation of what you had done.  Nevertheless, what you did remains a serious example of this type of offending.  Your intoxication explains,  but does not mitigate your crimes.

34Such circumstances make important sentencing considerations of deterrence, denunciation of what you did, your moral culpability and the need for proportionate punishment.   General deterrence is an important sentencing purpose.  Aggravated burglary such as this is seen to be a significant problem in our community.  You and others should be deterred from such offending in the interest of its protection. 

35Sekonaia Vave, you are now aged 22 and you are also placed in remand custody.  Of the Tongan culture, you are one of two brothers raised in the Robinvale area.  Psychologist David Ball describes "a broadly functional family." 

36You are a good sportsman, leaving school after Year 11 and going to Sydney to pursue a career in the national rugby league.  You lived there with an uncle.  You returned to Robinvale, it seems  in about 2013 or 2014.  You have been consistently employed since school, most recently for about three years as a foreman in construction work.  A letter of character reference by that employer has been tendered.

37You began using alcohol at 14 and you were drinking on this night.  You have also developed what seems a significant gambling problem.  David Ball states in his report as follows,

"Mr Vave described having difficulties managing his pathological gambling primarily on online sites and having started gambling, would spend all of his money.  He stated, 'I felt isolated and lonely.  I would drink at the pub with a few people all by myself and started gambling online on horses and card games.  I then started gambling on horses at the TAB which was at the pub.  I would spend all I had and was then chasing the losses.'"

38This was part of your motive for this offending.  Mr Ball diagnoses severe gambling disorder.  He also describes you as immature, of low self-esteem and frequently isolated from others. 

39Your criminal record states three court appearances between October 2009,  when you were 14,  and October 2013.  Two of the three are Children's Court appearances.  All are for offences of dishonesty.  In the adult jurisdiction, you were placed on a bond for theft in 2013. 

40The serious nature of the offending, particularly Charge 1  (Aggravated burglary) - and the adverse sentencing considerations I have earlier identified mean that the only proper sentences are substantial periods of imprisonment,  with appropriate minimum terms. 

41There are matters applicable to both of you which should moderate or reduce the length of those sentences.  They may be seen as relevant particularly to your minimum terms and include the following.

42(1)   Your pleas of guilty.  I see you as genuinely remorseful.  I saw that as so, Peni Amato, in what you said and your manner when taking part in the sentencing conversation with your aboriginal elders.  Your letter to the court also shows that.  Sekonaia Vave, such remorse was also apparent in your evidence before me. 

43(2)   You were both young at the time of offending and are still so.  You should be seen as having prospects for rehabilitation.  The character evidence tendered and what you have both said in court supports that.  I see you as young men of promise despite your past offending  and in your case, particularly, Peni Amato, despite a difficult early life.   You have strong family and community support. 

44(3)  I take into account your personal circumstances including those psychological aspects the expert evidence has described. 

45Mr Davies referred me to and I have considered the recent Court of Appeal judgment of DPP v Bowden,  at paragraphs 43 to 48. That case also refers to a number of comparative sentences for aggravated burglary of a similar kind.  I bear in mind differences between your case and Bowden.  For example, he was older  and,  as stated in paragraph 58, had a very extensive criminal history. 

46As I have said, authority and the seriousness of offending require a significant period of imprisonment.  Those matters more favourable to which I have referred justifies some moderation of that  and,  as I have also said, may be particularly considered in setting your minimum term.  That is,  the sentence to be served before becoming eligible for parole. 

47I have decided that there should be parity in your sentences.  Having considered in your respective cases matters such as age, role, personal history and prospects for rehabilitation, I should impose identical sentences.  When raised in your plea, Sekonaia Vave, the Crown agreed with this approach. 

48There should be some cumulation.  However, as raised  with counsel this morning, I see that that should be moderate.  The most serious offence is that of aggravated burglary.  This is a case in which it can be said that that offence and your offending when inside was essentially and broadly directed at all inhabitants of the home.  As put on your behalf, it was of short duration.  My aim is a proper total sentence reflecting the totality of your offending. 

49Having considered and weighed what I see to be the relevant matters, I sentence you as follows.  Please stand up, Peni Amato.  You can remained seated for the time being. 

50On Charge 1, you are sentenced to imprisonment for three years and ten months. 

51On Charges 2, 3, 4, 5 and 6, on each you are sentenced to imprisonment for 12 months.  I direct that 2 months of the sentences on Charges 2 to 5 and three months of the sentence on Charge 6 be served cumulatively upon the sentence for Charge 1 and upon each other. 

52The total effective sentence is four years and nine months.  The minimum term before eligibility for parole is two years and three months.  I declare under s.18, 222 days is it?

53MR DAVIES:  Two twenty-three, Your Honour.  I will just confirm that.  Yes.  

54COUNSEL:  Two two three.

55HIS HONOUR:  Days off that sentence already served.  That will be set off against the minimum term. 

56Now, I probably need to say this to you individually.  Had you not pleaded guilty, I would have imposed a sentence of six and a half years, a total sentence of six and a half years with a minimum term of four and a half years, so about twice the length of sentence you are receiving.  Yes, go on.

57MR DAVIES:  Your Honour, I just have some orders to hand up, a forfeiture and a disposal ‑ ‑ ‑ 

58HIS HONOUR:  Yes, I can do that jointly at the end, can I? 

59MR DAVIES:  Yes, yes.

60HIS HONOUR:  Sit down please, Mr Amato.

61Sekonaia Vave, I am imposing identical sentences on you but I will state them formally. 

62On Charge 1, you are sentenced to imprisonment for three years and ten months. 

63On Charge 2, 3, 4, 5 and 6, you are sentenced to 12 months' imprisonment on each. 

64I direct that two months of the sentences on Charges 2 to 5, inclusive, and three months of the sentence on Charge 6 be served cumulatively upon the sentence for Charge 1 and upon each other.  That is a total effective sentence of four years and nine months.  I set a minimum term, before your eligibility for parole, of two years and three months. 

65I declare, under s.18, 222 days of the sentence I have imposed as already served.  You understand, it will be set off against the minimum term and you will be eligible for parole then.  You will need to apply to the parole board and they will make what order they see fit. 

66All right, take a seat, please.  Now, what else need I do?

67I also declare, under s.6AAA, the same sentence I would have imposed if you had not pleaded guilty, a sentence of six and a half years with a minimum term of four and a half years.

68MR DAVIES:  Yes.  Your Honour, there are just some orders, a forfeiture order and a disposal order.

69HIS HONOUR:  Well, I make those orders, they are in relation to what, the weapons, are they?

70MR DAVIES:  The shotgun and the machete.

71HIS HONOUR:  All right, these men have given s.464ZF before?

72MR DAVIES:  They have, Your Honour, it is an order retention position.

73HIS HONOUR:  Yes, All right.

74MR DAVIES:  Yes, Your Honour.

75HIS HONOUR:  All right, well finally, these are forfeiture and disposal orders for the machete and the shotgun.  I will sign these now.

76MR DAVIES:  Thank you, Your Honour.

77HIS HONOUR:  All right, now is that all I need to do?

78MR DAVIES:  Yes, Your Honour.

79HIS HONOUR:  All right.  People have come to support you today and I am going to allow them to briefly speak to you before you go back into custody.  It must be short and Mr Howard and Mr Hilton, would you supervise that? 

80Could I also say this to you?  I think you are a young men of promise.  You present as fit, health, athletic young men who should be a model to the younger people in your family and culture.  When you return to the community, you will have strong support from you family and culture and I wish you the best when you do leave prison. 

81Now, those people who wish to briefly speak to them can do so no.  I think it is appropriate that I remain in court whilst that happens.  If you could supervise that, please.

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