Director of Public Prosecutions v Ata & Ors

boultonaas

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-22-00199
CR-22-00200
CR-23-00726
CR-23-00728

DIRECTOR OF PUBLIC PROSECUTIONS

Michelle Ata, Mark Sione & Jin Atalani

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2023
DATE OF SENTENCE:	20 November 2023
CASE MAY BE CITED AS:	DPP v Ata & Ors
MEDIUM NEUTRAL CITATION:	[2023] VCC 2167

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords:              Plea of guilty – aggravated carjacking – carjacking – common assault – armed robbery – robbery – theft of a motor vehicle – theft – prohibited person possess firearm – prohibited person possess imitation firearm – discharging a firearm at a vehicle with reckless disregard for the safety of any person – handling stolen goods – Bugmy – Verdins - totality – – substance abuse – prospects of deportation – parity
Legislation Cited:      ss5; 6AAA of the Sentencing Act 1991 (Vic)
Cases Cited:Atkinson v R [2021] VSCA 127; R v Wright [2009] NSWCCA 3; GAS v R [2004] HCA 22; Jason Mammoliti v The Queen [2020] VSCA 52; Sabbatucci v The Queen [2021] VSCA 340; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 62; Azzopardi v The Queen [2011] VSCA 372, R v Tran (2002) 4 VR 457, Guden v The Queen [2010] VSCA 196; Akoka v The Queen [2017] VSCA 214; Thomas v The Queen [2021] VSCA 97; Bogdanovich v The Queen [2011] VSCA 388;Boulton v The Queen [2014] VSCA 342; R v Renzella [1999] VSCA 85; Wheldon v The Queen [2011] VSCA 83; The Queen v Matamata [2021] VSCA 253.
Sentence:                  ATA – Imprisonment for a total period of 307 days and an 18 month and 12 month community corrections order; SIONE – Imprisonment for a period of 20 months and a 15-month community corrections order; ATALANI –Imprisonment for a period of 5 years and 2 months; non-parole period of 3 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. M. Fisher	Michael Robinson
For the Accused Ata	Ms. S. Wendlandt	Brett Barratt

For the Accused Sione Mr. P. Bloeman Manny Brennan

For the Accused Atalani Mr. D. Thomas Cassandra Genoroso

HER HONOUR:

Introduction

Collectively before the Court there are four incidents of offending involving four separate victims.

Ms Ata you have pleaded guilty to the following charges:
· On indictment M11595230, one charge of robbery and one charge of theft.
· On indictment N12446323, two charges of theft and one charge of carjacking.
You have also agreed to this Court hearing, and have pleaded guilty to, two related summary offences of failing to answer bail.

Mr Sione you have pleaded guilty to the following charges on indictment M11585109: armed robbery (as amended), common assault and theft.
You have also agreed to this Court hearing and have pleaded guilty to one related summary offence of commit indictable offence on bail.
Mr Atalani you have pleaded guilty to the following charges: theft, discharging a firearm at a vehicle with reckless disregard for the safety of any person; aggravated carjacking; prohibited person possess firearm; prohibited person possess an imitation firearm and handling stolen goods.
You, too, agreed to this Court hearing and have pleaded guilty to two related summary offences, possess cartridge ammunition without authority and deal with property suspected of being proceeds of crime.

The Offending

The offending was outlined in the agreed summary of prosecution openings, dated 5 and 9 October 2023, and marked as Exhibits A and B.
The following is a brief summary of the offending that relates to you Ms Ata (M11595230) and you Mr Sione (M11585109). Ms Ata, you were aged 28 at the time of the offending and Mr Sione, also known as MJ, you were 35.
The victim in this matter is Russel Kapukotuwa. You, Ms Ata, had met him about a week prior to the offending, introducing yourself as ‘Chantelle’, and exchanging numbers.
On 26 July 2021 the two of you spoke on the phone, exchanged messages and agreed to meet. That day you also exchanged messages and calls with Mr Sione. At 3.34pm you sent a text message saying ‘ok he’s gonna call me in 5 mins’. The opening outlines in detail from paragraphs [8] to [16] communications you Ms Ata were having with both the victim and Mr Sione.
Sometime after 8.54pm you met up with the victim and got into his car. You also communicated with Mr Sione as to your movements, telling him to ‘come’. You ended up directing the victim to park outside of 27 Lambeth Street, saying it was an empty house where you had been staying as you had nowhere else to go. Meanwhile, you Mr Sione, walked towards the car, opened the driver’s door, leant in and took the keys out of the ignition.
You were wearing a dark scarf across your face and said to the victim ‘what are you doing to her.’ You took hold of him, dragged him out of the car and into the driveway and produced a knife in your right hand, which the victim later described as a 15 cm switchblade, which you then put away. You punched the victim a number of times before demanding his wallet (charge 2 (part) common law assault). You then took the victim’s wallet from his pocket.
It is this offending that constitutes Charge 1 for you Mr Sione, that is armed robbery, and Charge 1 for you Ms Ata, robbery. The difference in the charges is explained by the prosecution not being able to prove to the requisite standard that you Ms Ata were aware that Mr Sione had a knife in his possession at the time when he demanded the victim’s wallet.
You, Mr Sione dragged the victim by his shirt collar along the street where you continued to assault him for several minutes, including by striking him to the head and face several times. Those blows caused the victim to suffer lacerations, swelling and pain, and that represents a continuation of Charge 2.
The victim ultimately managed to break free of you Mr Sione and ran away, trying to get help. You ran to his car, got into it, with Ms Ata still in the passenger seat, and drove away. This is also the subject of a theft charge for each of you. The victim then called 000 and reported the matter to police.
Paragraph 31 of the opening refers to a somewhat contentious message at 9.41pm sent by you Ms Ata to Mr Sione and then the victim. The timing of the text message is disputed by the defence. The prosecution suggest that you were both together at that point in time. This may have been an attempt to distance yourself from what had occurred. As indicated at the plea hearing, overall, I consider this message as largely inconsequential for the purposes of sentencing. The prosecution made clear that it did not rely on it as an aggravated feature of the offending.
On 28 July 2021 the victim’s car was located by police on a street in St Albans. Upon approaching the car, police located the keys in the ignition and you Mr Sione asleep in the driver’s seat. You were subsequently arrested. The vehicle was towed to be forensically processed. A number of items were seized from the car, as outlined at paragraphs 35 and 37 of the opening. You, Mr Sione, were interviewed and effectively denied the offending, answering questions as outlined in paragraph 41 of the opening.
On 29 July 2021 you, Ms Ata, were arrested, conveyed to the police station and interviewed. You initially denied the offending itself and your answers are outlined in detail at paragraphs 47 to 48 of the prosecution opening. When confronted with the text messages you went on to make some admissions, including: ‘All I know was just get him out, just rough him up, but then left him go.’
Turning now to the offending that involves you Mr Atalani, along with you Ms Ata and another co-accused Fiae Siaosi, who is not part of these proceedings.
The following again is only a brief summary. At the time of the offending you, Mr Atalani, were 23 years of age. You are also known as Jin Ata and you are the brother of your co-accused Ms Ata. You were a prohibited person pursuant to the Firearms Act and you were not the holder of a firearms licence.

Ms Ata at the time of this offending you had now turned 29 and were in a defacto relationship with Mr Siaosi, aged 40. You have two young children together. You had been granted bail in respect of the earlier matter and failed to appear. Consequently, a warrant for your arrest was issued.

Incident One

On 29 July 2022, victim Rahul Singh’s car, a Nissan X-Trail (1QK8BS) was parked inside the My Car Tyre and Auto Shop in Deer Park. The security alarm was activated in the early hours of the morning and security officers noticed Mr Singh’s car had been stolen, along with the keys. At about 5:25 on the morning of 30 July 2022, the security alarm was triggered at the business. Security officers arrived a short time later and reported the matter to the site manager who also noticed that Singh’s car had been stolen. The keys to the car were stolen with it, and that is Charge 1, theft. This car was used in the second incident and was ultimately recovered after the offending on 1 November 2022. At that time, the car was bearing number plates 1WH5AL which had been stolen from another vehicle in July 2022.

Incident Two

At about 9 o’clock on the evening of 1 November 2022, victim Mohamed Smyen was in the front yard of his address. As he walked to his Ford Territory (YKJ753) the stolen Nissan X-Trail bearing the stolen number places approached the property and stopped out the front.
Mr Siaosi was driving the car while you Ms Ata and you Mr Atalani were both passengers. Mr Siaosi exited the driver’s seat and went to Smyen asking him, “What’s your problem?”. Mr Smyen did not know Mr Siaosi and replied, “I don’t know who you are”.
Fearful of Mr Siaosi’s intentions, Mr Smyen got into his car and fled the scene in it. Mr Siaosi returned to the Nissan and commenced following him. The three of you engaged in a pursuit of Mr Smyen through the surrounding streets. A concerned witness called Triple 0.
A short time later as the two cars drove along Blessington Parade, Lalor, Mr Siaosi managed to get in front of Mr Smyen’s car. Mr Atalani, you leaned out the rear window of the car and discharged a single shotgun round towards Mr Smyen’s car, with the shotgun pellets striking the bonnet and windshield of the car. This is the basis of charge 3, discharging a firearm at a vehicle with reckless disregard for safety.
As a result of the shooting, Mr Smyen stopped his car, angled across the road. Mr Siaosi can be heard on CCTV recording yelling ‘go again, go again,’ encouraging you to shoot once again.
Mr Smyen then drove his car towards you, colliding with the Nissan X-Trail. While his car was still moving, he got out of it and ran along the street yelling for help.
The three of you got out of the car and collected various items from inside of it. A witness who was nearby commenced to record you on her mobile telephone. A conversation in Samoan was recorded that involved a discussion about the car being destroyed, having to leave and a female stating she did not have everything.
Meanwhile, as Mr Smyen ran along the Street, two men came to his aide. You ran in their direction, yelling. The three men went inside a house to hide from you. They turned off the lights and locked the door. At around 9:09pm, Mr Smyen called triple zero. At around the same time, Mr Atalani, you are depicted on some CCTV footage from a house in Donovan Street, carrying a shotgun in your right hand.

You walked along Donovan Street and passed the house that Mr Smyen and the other two men were hiding inside. A male voice yelled, “I’ll shoot you”. Mr Siaosi then got into Mr Smyen’s car before getting out a short time later.

Another witness heard yelling and swearing so she looked out the window of her house in Donovan Street where she saw two males walking south along the street. She commenced a recording on her mobile telephone. As you Mr Atalani walked along the street, you discharged another round from the shotgun.

Incident Three

At about 9:13 that evening, victim Filip Trpeski entered the driver’s seat of his 2021 Skoda Scala that was parked in the driveway of his house at an address in Lalor. He activated the ignition but did not start the engine. He then used his mobile telephone.
As he did that, Mr Trpeski was disturbed by either you Mr Atalani, or Mr Siaosi knocking on the driver’s window of the car. This person was brandishing a double-barrel shotgun in his right hand. He pointed the shotgun directly at Mr Trpeski’s face and demanded that he get out of the car, which he did.

The Crown case is that it was either one of you who was in possession of the firearm at the time. It cannot be proven beyond reasonable doubt who it was and consequently, the case in relation to this incident is put on the basis of that you were complicit with each other. That is, one of you was in possession of the firearm and you were both aware of the presence of the firearm during the commission of the offence.
As Trpeski was exiting his car, he sounded the horn to alert his family and to seek
assistance. One of you were still pointing the shotgun at his face so he grabbed the barrel of the gun and pushed it away. The person holding the gun consequently tripped and landed on top of Trpeski and the two briefly wrestled. The second person intervened by grabbing the back of Trpeski’s jumper and dragging him away to a garden bed.
At that point, Mr Trpeski surrendered and put his hands up in the air. Mr Atalani you entered the driver’s seat and Mr Siaosi entered the right rear seat of the car. When Mr Trpeski asked you to return his mobile telephone to him from the car, you did so. Your intention being clear, Mr Trpeski assisted you to start the car. That is the basis of Charge 1, aggravated carjacking, for you Mr Atalani; and for you, Ms Ata, Charge 2, carjacking.
Ms Ata, you were not involved in the assault of Mr Trpeski, but got into the car with your co-accused.
The opening outlines the detail of the extensive police response and investigation into the three incidents. A number of items were seized from the Nissan X-Trail as outlined at paragraph [58] of the prosecution opening, including two stolen Victorian registration plates (1WH5AL) which are the subject of charge 1, theft for both you Ms Ata and Mr Atalani.
On 2 November 2022 a witness returned to his home address in Lalor and upon entering the driveway of his home address he noticed a metallic object in the garden bed, which was a firearm, along with an unspent shotgun round close by. He called police. It is alleged that the items were disposed by either you Mr Atalani or Mr Siaosi after incident 2. Consequently, it is alleged that another firearm was used in incident 3. The police then searched the path taken by you between the locations of incident two and three and located a spent shotgun cartridge, which is alleged to have been discharged during the earlier incident.
Mobile phones were also seized and examined, as outlined in the opening, along with various CCTV footage from three service stations. Also, the mobile telephone data and analysis is set out in paragraphs [65] to [69], which I will not repeat here.
On 10 November 2022 police commenced surveillance and ultimately the Victoria Police Special Operations Group (SOG) established a cordon around the address you had been seen travelling to and arrested all three of you. Mobile phones were seized, and search warrants executed, as outlined in paragraphs [79] and [80] of the prosecution summary, including the following items – two stolen registration plates bearing the number 1WB1MU, a stolen registration plate bearing the number 2L6IF and a stolen motorcycle.
In terms of the registration plates, Charge 7, handling stolen goods for you Mr Atalani; and also, the motorbike is the summary of proceeds of crime charge. Police also seized a silver imitation handgun with magazine, which is Charge 6, prohibited person possessing an imitation firearm for you, Mr Atalani; along with ammunition, which was outlined earlier today, and that is the basis of the summary charge dealing with the ammunition.

You each participated in a record of interview, as outlined at paragraphs [92] to [98].
The prosecution’s case is that each accused is jointly liable for the offending pursuant to s.323(a), (b) and/or (c). Clearly, in your case Ms Ata there are some differences as to role and knowledge and you are not charged with aggravated carjacking.

Victim Impact

Mr Kapukotuwa, the victim of your offending Ms Ata and Mr Sione provided a victim impact statement. I have taken into account the admissible portions of this statement, noting that there are some references that are not relied upon by the prosecution. He states that he has not faced ‘any incident or situation like this before’ and he speaks of the emotional and psychological impact of your offending and how it affects different facets of his life, including his sleep and appetite. He refers to the ‘fear, frustration and disappointment’ that he has experienced and how your offending has undermined his sense of safety.

Mr Smyen also provided a victim impact statement. He says ‘this crime affected me very badly. Due [to] this crime I now feel paranoid and scared which led to me having anxiety which led to me having a strained relationship with my partner. Furthermore, I was normally going to the park but now I hardly ever go.’ He also refers to the financial impact of your offending and how it has affected his social life. In sentencing you I take into account the impact of your offending.

Gravity of the offending

Plainly the offending with respect to both matters is serious, as indicated also by the applicable maximum sentences. In respect of the offending where the victim is Mr Kapukotuwa the offending clearly involved a degree of planning and you Ms Ata effectively luring him to a location where he was then set upon by your co-accused. I make clear that I proceed on the basis that you were not aware that your co-accused was in possession of a knife when he made demands on the victim’s wallet and also that you were not part of the assault.
Mr Sione you produced a knife, assaulted the victim and demanded his wallet. I accept your Counsel’s submission that you did not assault or threaten the victim with the knife, beyond producing it as alleged. In terms of your assault on the victim, it was a relatively sustained one.

In respect of the offending where you Mr Atalani and you Ms Ata are co-accused, this was very serious. Incident 2 involved you randomly targeting a person in their front yard and then pursuing them in your car. Driving on a public road in Lalor you Mr Atalani discharged a single shotgun round while hanging out of the car, striking the bonnet and windshield of Mr Smyen’s while he was driving. The photograph extracted in the opening, lifted from the CCTV footage, shows the relatively close proximity of the cars to each other when the shot was discharged. Mr Atalani you told psychologist, Ms Cidoni, that you were aiming at the car, and not the driver. Even if this was your intention – and it is not a particularly persuasive explanation - your actions were incredibly dangerous, brazen and reckless. As the higher Courts have stated and as further underscored by the applicable maximum sentence, ‘it is an inherently serious offence to discharge a firearm into premises or vehicles with a reckless disregard for the safety of others’.[1] Mr Smyen managed to flee, and you continued to pursue him on foot, with you Mr Atalani still carrying the shotgun
[1] Atkinson v R [2021] VSCA 127 [para 39]
Less than 15 minutes later you approached Mr Trpeski while he was in his car in his driveway and either you Mr Atalani or Mr Siaosi brandished a double-barrel shotgun; alleged to be a different gun to the one used earlier. Threatened in this most confrontational manner, Mr Trpeski surrendered, and you stole his car.

Mr Atalani you face a charge of aggravated carjacking in relation to this and Ms Ata a charge of carjacking, which importantly represents an acceptance by the prosecution that you were not complicit and did not have knowledge of the use of the firearm. Your offending was not as significant as that of your co-accused. I accept your Counsel’s submission Mr Atalani that the carjacking was relatively unsophisticated and unplanned. Your Counsel also makes the point that the victim wasn’t physically harmed, and you also returned his phone when he asked for it. Further, I am mindful that the prosecution cannot nominate who, out of you and Mr Siaosi, was in possession of the shotgun and instead put the case against you on a complicity basis. You will therefore not be sentenced on the basis that you possessed the shotgun yourself.[2] Nevertheless, given the circumstances of this offences, I regard the offending as serious and your culpability as high.
[2] R v Wright [2009] NSWCCA 3; GAS v R [2004] HCA 22.
The charge of aggravated carjacking carries a maximum penalty of 25 years imprisonment. It is a category 1 offence which means that I must sentence you to a term of imprisonment. In addition, I must fix, under s11, a ‘non-parole period of not less than three years’ unless I find under s10A that a ‘special reason exists,’ which was not advanced in your case, and which I do not find. The offence of carjacking is a category 2 offence. I am required to sentence you to a term of imprisonment for that offence unless one of the exceptions in the Sentencing Act 1991 (Vic) apply. Your counsel did not argue that any of the exceptions applied to your case, and I find that there are no such circumstances for the purpose of sentencing you on the carjacking charge.
In Mammoliti v R the joint judgement quoted from the Attorney-General’s second reading speech explaining why four offences were being created, including carjacking and aggravated carjacking:

‘The government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the government and the Parliament denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated.’[3]

[3] Mammoliti v The Queen [2020] VSCA 52

Given the circumstances of the offending and the use of a shotgun I do consider this to be a serious example of aggravated carjacking.[4]
[4] Sabbatucci v The Queen [2021] VSCA 340, [35]

Plea of guilty

While your pleas of guilty were not entered at the earliest opportunity, in all the circumstances I accept that your respective pleas of guilty entitle you to a substantial discount in sentence. By your plea you have indicated a willingness to facilitate the course of justice and your plea has important utilitarian benefit. Given the time your cases entered the court system they are pleas that attract the need for perceptible amelioration in accordance with the Worboyes principles.[5]
[5] Worboyes v The Queen [2021] VSCA 169

Personal circumstances

Ata

As to your personal circumstances, briefly, Ms Ata, you were born in New Zealand and you are of Samoan descent. You had a turbulent childhood, and you were exposed to extreme family violence and conflict between your parents. Due to the dysfunction and neglect in the family home you were often left to care for your younger siblings when you yourself were still only a child. At age 13 you were placed in foster care. In 2004 you moved to Australia, as a teenager and without your parents, to live with an uncle. You attended Brisbane Marsden State High School to year 10, though you were often suspended and ultimately expelled. In 2010 you moved to Victoria. You have had some work previously in hospitality and warehousing.

You have no prior convictions. You have a subsequent matter in the Magistrates’ Court which resolved to a criminal damage in relation to your stepfather’s property and this was proven and dismissed.

As I’ve already noted you were in a relationship with one of your co-accused Mr Siaosi and you have two children together, aged ten and five. In 2021 you allegedly experienced family violence perpetrated by him, which led to his remand. This also led to a collapse of your family life and you left home in despair, leaving your children with your mother. In 2022, and at around the time of your court cases where you failed to appear, you were in a brief relationship with a man who was also violent and controlling.

You have struggled with substance abuse, primarily marijuana and ice. This use has escalated over the past few years and at the time of your offending. You have a history of self-harm, symptoms of post-traumatic stress disorder and drug induced psychosis.

In broad terms, on your behalf Ms Ata it was put that your circumstances at the time of the offending were chaotic and impoverished. You had been living in a squat in St Albans for about three months and your ice use had increased and you were not sleeping.

Your children continue to be in the care of your mother and they live and attend school in St Albans. Your mother also cares for her niece, aged five. Your mother is supportive of you and has previously attended Court and has provided a letter on your behalf. Your relationship with your mother is a complex one and it has improved significantly over time. Between October 2021 to October 2022 an intervention order was in place prohibiting you from contacting your mother and your two children which is likely to have been necessary at the time but was nevertheless distressing and isolating. I note that Mr Siaosi is currently on remand for these matters and apparently unwell with terminal cancer.

You were remanded in relation to these matters, initially on 29 July 2021 and you were released on bail on 22 September 2021. A warrant was then issued for your arrest and your bail was revoked. A further application for bail was made on 21 July 2023 and you were granted bail to reside at Odyssey House.

You have served approximately a total of 307 days in custody and as of today’s date you will have spent 119 days at Odyssey House where you continue to remain, as an exit strategy is being devised for you.

Sione

Mr Sione, you are 37 years of age. You were born in Samoa. Your biological father was Tongan, your mother Samoan. They both passed away when you were only very young, and you were adopted into another family. You are the middle child of four children. You grew up in a strict religious household. Your adoptive father worked as a church pastor and died in 2021. Your adoptive mother lives in Samoa and works as a hotel housekeeper. Most of your siblings appear to reside in New Zealand.

You completed the equivalent year 12 at college and undertook further education at the University of Samoa, where you completed a Certificate I and II in Tourism and Business. In 2008 you also participated in Samoan Idol and came second in the competition which gained you some local fame. While studying tourism you also worked for the Tourism Authority in Samoa, performing both traditional dance and song and as a receptionist in various hotels.

You were also quite a talented soccer player, having played previously for the Samoan team when you were 23 years of age and later for a non-professional league here in Australia.
You migrated to Australia in 2013. You completed a Certificate III in Civil Engineering in Australia.

You have a solid and consistent employment history until your workplace accident in 2016. Between 2013 and 2016 you worked as a civil engineer in various construction companies, where your specialty was asphalting. In 2016 you had a workplace accident and injured your shoulder, after a piece of heavy concrete fell onto it. Over time your injury got progressively worse and you have since been unable to lift your arm or engage in regular work.
You met your now ex-wife wife in Samoa and married in 2013, soon after settling together in Australia. Your marriage was stable up until 2016 when financial stress led to marital problems after you were off work due to your accident. The relationship ended in late 2020, and you ended up sleeping in your car after this.

You have two children aged 7 and 8 who live with your ex-wife in Melton. Prior to your remand you saw them about twice a week and you would look after them while your ex-wife was working.

Following your relationship breakdown and injury, you had difficulties with accommodation, and had no family support in Australia. You connected with a pastor in 2020 and lived with him in Melton. The church activities centred you and occupied your time, including by doing unpaid mechanical work for members of the congregation. Later in 2020 to 2021 you were living in a rooming house with roommates who mostly had drug issues and to try and get away from that environment you ended up living in your car.

You have a history of drug use. From around the age of 18 you started smoking cannabis. In around 2019 you started using methylamphetamine and this developed into daily use as you also found it provided ‘pain relief’ for your shoulder. In the same year, you also started drinking large amounts of alcohol, up to two bottles of spirits per day.
All of your stressors culminated leading you to self-harm. In March 2021 you lacerated your neck and torso following a conflict with your partner and were admitted as an inpatient at hospital for one week. Earlier in late 2020 and then in February 2021 you made suicide attempts and were prescribed anti-depressant medications. The ‘Total Care Progress Notes’ that were tendered on your behalf offer some insights into your more recent challenges and mental health issues. You described during your admissions ‘increasing depressive and anxiety related symptoms since the breakdown of [your] marriage.’ It was further noted that you had ‘been living out of [your] vehicle for the last four years and [had] significant financial constraints due to the instability of [your] work.’ It does not appear that you have engaged in any regular psychological treatment or counselling. In custody you have been managed with anti-depressant medication.

You have a relevant but limited prior criminal history, for which you received monetary penalties. You have subsequent matters, which I will address shortly.

Atalani

Mr Atalani, turning to you. You are now 24, and at the time of the offending, as I have already noted, you were 23. You were born in New Zealand to Samoan parents. You are the youngest of three, one of your siblings is Ms Ata. Your parents separated in 2021 when you were in custody.
Your family moved to Australia when you were nine years old, settling in Queensland initially with a maternal uncle. Your family then relocated to Victoria when you were around twelve years old, staying with relatives in the Craigieburn area before you found your own residence. You report that your family moved frequently due to financial stressors.

As a result, your education has been fragmented, punctuated by the many moves. In Year 12 you were expelled due to your involvement in a fight.
You have had a reasonable work history. You have worked from age 18 in Brisbane, at Kmart. You then worked in New Zealand as a harvester for a produce company and in a factory repairing pallets. In Victoria, your employment was primarily in logistics, working as a forklift driver and handling freight through agencies. You generally maintained a five- or six-day work week. During the COVID-19 pandemic, your work options were limited. You briefly held a position as a freight handler for three months in Tullamarine before drug use interfered with your job performance leading to your termination.

In terms of drug and alcohol use, you started drinking at age twelve and you moved on to drugs at around the age of 13. You used cannabis, cocaine, speed and methylamphetamines. You report that when you returned to Victoria in 2018, you were using methylamphetamine, speed and cocaine on a regular basis and it became your everyday lifestyle. You have never sought or received any formal treatment for your drug and alcohol issues.
You became a father at a young age. You were in a relationship with the mother of your daughter for six and a half years. Your daughter is around five years of age presently.
This relationship ended in early 2020 in the context of your partners infidelity. On separation your relationship was initially amicable, and you continued to support her financially. However, soon after your relationship became difficult and strained.
In 2021, your mother assumed care of your daughter after the Department became involved. Your daughter continues to live with her, and your former partner has supervised visits.

Your prior criminal history is confined to the one matter for charges including affray, intentionally cause injury and possess prohibited weapon, for which you received 99 days’ imprisonment, declared wholly as served.

For each of you I take into account all of your personal circumstances in sentencing you, including in your case Ms Ata your disadvantaged background that I have already referred to.

In your case, Mr Atalani, your Counsel submitted that Bugmy principles have application. The Bugmy principles are well-established. At paragraphs 40, 43 and 44 the High Court's stated:

[40] … the circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.’[6]
[43] … the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the persons’ capacity to mature and to learn from experience[7] …
[44] … an offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders resource to violence when frustrated such that the offenders moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violence response to frustration may increase the importance of protecting the community from the offender.’[8]

[6] Bugmy v The Queen [2013] HCA 37 [para 40]

[7] Ibid [para 43]

[8] Ibid [para 44]

In her report, Ms Gina Cidoni refers to your ‘tumultuous family life marked by extreme violence, mainly perpetrated by [your] father’ and uncles. Your father was excessively violent and you ‘served as a punching bag.’ Your neighbours frequently called police due to disturbances, which were usually alcohol-fuelled. In Queensland you and your cousins had to collect loose change to buy cigarettes for your alcoholic uncle who was extremely violent. Further, you witnessed severe abuse towards your aunt.
Your score on the Adverse Childhood Experience Questionnaire (ACE-Q) was considered clinically significant by Ms Cidoni, showing you have experienced several adverse childhood experiences and are at a high risk for social, mental or other wellbeing problems.

Ms Cidoni opines that:
‘Traumatic events during formative years have led to maladaptive patterns of behaviour and thinking in adulthood. Exposure to violence, neglect and other traumatic incidents can instil a persistent sense of danger, mistrust of others, and difficulty in emotional regulation. Such experiences can also lead to a distorted sense of right and wrong, or an increased likelihood to resort to aggressive or defensive behaviours when confronted with perceived threats. In your case, these adverse experiences may have contributed to a heightened state of alertness and reactivity, making [you] more prone to offending.’[9]
[9] Report of psychologist Gina Cidoni, dated 17.9.2023, paragraph 106

In Ms Cidoni’s opinion, your early traumatic experiences played a pivotal role in the development of substance use as a coping mechanism, which in turn worsened or triggered your mental health issues. I accept that your background was marred by significant violence and disadvantage and that the Bugmy principles apply and are relevant to an assessment of your moral culpability and your circumstances in both the general and more specific way referred to in the cases. On my evaluation of both the nature and circumstances of your offending, including your drug use at the time, and the severity or degree of your disadvantage, I consider that it warrants a modest reduction of your moral culpability.

Mental Health

Continuing with you Mr Atalani, Ms Cidoni previously assessed you in 2021 and noted that your cognitive function was lowered and you presented with a range of maladjustments. When she assessed you more recently in 2023 she considered that you displayed a significant decline in your cognitive functioning, particularly in memory functions. You report that you have put your name down in custody to speak to a doctor or a psychologist, but you have not been able to see one yet. You are not on any current medication.

Ms Cidoni’s clinical evaluation indicated that you have the following clinical diagnoses:[10]
a.Bipolar disorder
b.Post Traumatic Stress Disorder PTSD
c.Generalised Anxiety Disorder GAD
d.Alcohol Use Disorder
e.Substance Use Disorder
[10] Ibid, paragraph 98

She considers that your drug use intensifies your symptoms.[11]
[11] Ibid, paragraph 100

In terms of your mental state at the time of the offending, she considers that the influence of methamphetamines, combined with your already compromised cognitive functioning, is likely to have:

‘Directly exacerbated [your] impulsive behaviours and poor decision-making. The effects of substance use or coming down from substance use can intensify feelings of paranoia and decrease inhibition, aligning with [your] mistrust of others and the heightened reaction to the tailgating incident.’[12]

[12] Ibid, paragraph 103

Further, she states:

‘Separately [your] mental illness can influence [your] perception of threat, emotional regulation, and impulsivity.’

She concludes that:

‘Collectively, these factors significantly impacted [your] ability to make rational decisions and contributed in part to the offending. [your] mental illness also causes clouded judgment, impairs decision making, and heightens emotional responses, making it challenging for [you] to fully grasp the moral implications of [your] actions.’[13]

[13] Ibid, paragraph 105

Your Counsel submits that limbs 1 and 6 of Verdins have application in your case.[14] It was submitted that limb 1 is relevant and reduces your moral culpability to a limited degree as there is a realistic connection between your mental impairment and its contribution to the offending in that it impaired your ability to make calm and rational choices, or to think clearly and exercise appropriate judgment.
[14] R v Verdins [2007] VSCA 62

In respect of incident 2, it was submitted that the discharge of the firearm was in response to what you perceived as threatening conduct by the victim in following your car. On the face of it, I do have difficulty accepting that the discharge of a firearm was in response to a perceived threat. The victim momentarily overtook your vehicle in the context of you and your co-accused targeting him, a random stranger, and causing him to try and flee from you. You continued to pursue him both in the car and then later on foot. Having said that, an assessment of your moral culpability for the offending is not straightforward. Based on the unchallenged opinion of Ms Cidoni, separate to any drug use, your mental illness and compromised cognitive functioning can influence your perception of threat, emotional regulation, impulsivity, also clouding judgment, impairing decision making and heightening emotional responses.

The prosecution contend that it is difficult to disentangle the obvious effects of your drug use with the effects arising from your mental health conditions. Also, you reported to Ms Cidoni that the others in the vehicle were telling you not to shoot but despite this you went ahead. Ms Cidoni is quite clear in her report that while your substance use exacerbates your impulsivity and poor decision making, quite separate to this your mental illness also impacts with active symptoms, as already described. In respect of your account as to what happened in the car that was relied upon by the prosecution, the account you have given Ms Cidoni does appear to be at odds with the CCTV which records Mr Siaosi saying, ‘Go again, go again’, and with Mr Siaosi also being charged for this offending on a complicity basis.

On a careful consideration of the evidence, overall, I have ultimately concluded that there is a realistic connection between your mental impairment and the offending. However, I consider that it warrants a modest reduction of your moral culpability only given the circumstances and seriousness of the offending, including your drug use at the time. It also must be balanced against the need for community protection and the prominence of general deterrence as a sentencing consideration. I am also mindful to ensure that this is no ‘double counting’ for the reduction of your moral culpability pursuant to Bugmy principles.

I accept, and it was not disputed by the prosecution, that Limb 6 has application in your case. Ms Cidoni states:
‘Imprisonment can exacerbate the symptoms of his mental illness. His Bipolar Disorder can lead to increased episodes of mania or depression. The isolated and often stressful environment of a prison can be a trigger, potentially leading to more frequent or severe episodes. PTSD can also lead to episodes triggered by the confined environment and lack of control.’[15]
[15] Report of psychologist Gina Cidoni, dated 17.9.2023, paragraph 108

Youth

Also, in your case Mr Atalani, your Counsel relied upon as a relevant sentencing factor your relative youth at the time of the offending. While not a young offender at the age of 23, I accept that you are still youthful.
At paragraph [107] of her report Ms Cidoni states:
‘Mr Atalani’s age is an important factor to consider. Young adults, especially those in their teenage years and early twenties, often display differences in maturity compared to older offenders. These disparities stem from the fact that their neurological development persists beyond this age. Consequently, they might exhibit limitations like a reduced grasp of repercussions, heightened impulsivity, exaggerated emotional responses, and a lack of sound decision-making skills.’[16]
[16] Ibid, paragraph 107
I accept that your youthfulness is a relevant matter and that the well-established principles as they relate to young offenders have some application in your case, with appropriate adaptation to reflect your actual age. Courts have long recognised that young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult.’[17]
[17] Azzopardi v The Queen [2011] VSCA 372 (18 November 2011) [34].
Also, ‘the rehabilitation of young offenders is one of the great objectives of the criminal law’[18] and there is a real public interest in promoting this. Further, courts have recognised that incarceration of a young person may expose them to corrupting influences and ultimately have a detrimental effect.
[18] R v Tran (2002) 4 VR 457, 462.
These principles also need to be considered against the seriousness of the offending and the importance of deterrence, denunciation and community protection. In all the circumstances, while you are not a young offender, I do consider your relative youthfulness to be an important sentencing consideration.

Prospect of deportation

In your cases Mr Sione and Mr Atalani, your Counsel submitted that there is the real prospect that you will be deported from Australia if convicted and sentenced to more than 12 months' imprisonment. While you are both permanent residents in Australia and have resided here for some time, you are not Australian citizens.

The Migration Act provides for the cancellation of your residence here, subject to the success of any appeal or the Ministers discretion to revoke the cancellation. The relevant authorities, including Guden v The Queen[19] indicate that such a situation is relevant in potentially two ways –

(i) During your period of imprisonment, you will have the prospect of deportation hanging over your heard (footnote uncertainty – prosecution will know);
(ii) At the end of your prison sentence, deportation will have significant or serious consequences for you. In your case Mr Sione, you have lived here since you were 13 and you have two children in Australia. In your case Mr Atalani, you have also lived here from a relatively young age and your immediate family including your mother and daughter are based in Australia.

[19] Guden v The Queen [2010] VSCA 196

I take this mitigating factor into account in sentencing you both.

Ms Ata, while the risk of deportation was not explicitly advanced in your case, as discussed, this morning, you too are a permanent resident and not a citizen. You have been resident here for a long time, your children and mother are here, and you have connections in the community. I have also had regard to these matters in your case.

Period on remand

In each of your cases, Counsel relied upon as a relevant factor the period of time that you served on remand and its circumstances.

Ms Ata, during your period on remand, that is 307 days, you only had limited visits with your children. This was partly because of your remand status at the time, partly because of some of the covid pandemic restrictions, and also the difficulty of access that arose from the previous intervention orders.

In your case Mr Sione, you have continuously been in custody since your remand on 28 July 2021 and have experienced the more onerous and restrictive conditions caused by the pandemic. You have now been at Barwon prison for about 12 months. When you were first remanded, you completed quarantine periods at MRC, and PPP, and Fulham. There were also approximately four periods of ‘lockdown’ for between eight and fourteen days, where you were confined to your cell 24 hours a day.

In your case Mr Atalani I note that the restrictive conditions that had commenced were likely to or probably had eased but that you did experience, as I was told today, a two-week period of quarantine. I take those matters into account.

Other factors

Ms Ata you were bailed on 24 July 2023 by this court. As I have already noted, you were bailed to a residential treatment facility, Odyssey House. You have now been there for 119 days.

At Odyssey House you have participated in group and individual therapy and worked as a Beds Assistant Coordinator as well as in the Property Development and Management team. It is a strict and highly structured environment. During your period on bail, you have also attended before me on several occasions for judicial monitoring and I consider that you have engaged meaningfully in this process. I have received several reports from Odyssey House, the most recent dated 14 November 2023. This letter confirms that you have remained illicit drug free as demonstrated by supervised urinalysis. You completed the initial assessment phase of the program on the 18 August 2023. To progress from this phase, you underwent psychological and medical assessment. In addition to regular individual and group therapy you have also recently completed an 8-week psychoeducation course on emotional regulation called ‘Motivating Affect Self Control’ – MASC. It is clear that you have actively engaged in the program. The most recent letter however notes that you have faced ‘a number of challenges and had multiple interventions’ for your behaviours. As such, it’s considered that there has not been enough development of alternative coping strategies to support [your] continued progress at the Therapeutic Community.’ As such, you have been offered a planned exit following the completion of the MASC modules. The author writes:

‘This is the end of Level 1 and is designed to be a natural exit point which many residents opt for. At the end of this stage, the resident has hopefully learnt the tools offered to support their return to community with additional supports. As such, we are recommending that Ms Ata continues with alcohol and other drug counselling and any other supports she wishes to engage with.’

In respect of your period in residential treatment I take it into account in accordance with the principles in Akoka[20] and I will give full weight in the exercise of my instinctive synthesis to your period of time at the facility, and your active engagement in treatment.
[20] Akoka v The Queen [2017] VSCA 214.

Delay

In all your cases, particularly in your case Mr Sione, I also take into account the delay that has been occasioned in the finalisation of your matters, in accordance with established authority.[21]
[21] Tones v The Queen [2017] VSCA 118; Thomas v The Queen [2021] VSCA 97

Totality

Totality is an important factor to be taken into account in all of your cases. The charges in relation to you Ms Ata and Mr Sione, while representing separate criminal conduct which must be reflected, essentially arise out of the one episode. In respect of the charges relating to you Ms Ata and Mr Atalana, I note that incident 2 occurred at approximately 9am and incident 3 occurred some 15 minutes later. Totality is clearly a relevant and important consideration. As Ashley and Weinberg JJA said in Bogdanovich v The Queen:
The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’. The totality principle is said to ‘defy precision either of description or implementation’. Sometimes it is described as a requirement of ‘just deserts’, and whether the total effective sentence offends that principle is often a ‘matter of impression’. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.

[22] Bogdanovich v The Queen [2011] VSCA 388
Where a number of technically separate offences have been committed, but they can fairly be described as ‘parts of a multi-faceted course of criminal conduct’, it will often be appropriate to order substantial concurrency.[22]

In addition, Mr Sione, in your case your Counsel submits that the totality, or put alternatively the Renzella principle is relevant[23], as you have been continuously in custody now since July 2021, for what is now two years and three or four months. On 30 March 2022 you were sentenced in the Magistrates Court to a total effective sentence of 201 days imprisonment, that is just under seven months. This period is therefore not strictly referrable to your presentence detention on this matter. On your behalf it was submitted that you have been deprived any opportunity for concurrency in relation to this sentence, which was proximate in time to the current offending.[24] In sentencing you, I will broadly take into account the term that you have already served in respect of the unrelated matter.[25]
[23] R v Renzella [1999] VSCA 85
[24] The offending related to an incident on 20 June 2021
[25] Wheldon v The Queen [2011] VSCA 83

Further, I note that on 22 October 2021, you were dealt with for a range of matters including contravening family violence safety notice and theft of motor vehicle and you received a sentence of 60 days’ imprisonment, which was wholly reckoned as served.

Prospects of rehabilitation

Ata

In your case, Ms Ata, I consider that you have very good prospects of rehabilitation. Notwithstanding Odyssey House’s recommendation that you now be exited from their program, for a significant period of time you have demonstrated a willingness and capacity to commit yourself to your rehabilitation. While on remand, you had the assistance of the Better Health Network (Arrest Referral Service), WestCASA, and ACSO and worked in industries. The letter from WestCASA of 23 June 2023 referred to your demonstrated ‘strong desire’ to heal from the impacts of trauma and to ‘lead a rich, full and meaningful life.’ During your engagement with them you demonstrated ‘consistent participation and emotional support of the other women in the group, … exceptional emotional growth.’
You also completed a number of courses in custody, including ‘Construction Pathways’, ‘Occupational Health and Safety and food handling, ‘Tuning into Kids’ and respectful relationships. In my assessment of your rehabilitative prospects, I also take into account your compliance and participation in the Odyssey House residential rehabilitation facility and also your participation in judicial monitoring.

You are motivated by your two children; you continue to have contact with them and clearly have the support of your mother. You are keen to be reunited with them. You have a home to go back to and plan to get work when your children are at school. In my assessment I also take into account that you have no prior criminal history and only the one subsequent matter. I do note, however, within this assessment that you did fail to answer bail on two occasions.

Sione

Mr Sione as I’ve already noted while you have a relevant prior criminal history it is limited. Your circumstances deteriorated significantly in the context of your marriage breakdown and your recurring shoulder injuries. In my assessment of your rehabilitative prospects, I take into account your history of regular employment. In custody you have maintained employment in ‘powder coating’ and welding. You work five days a week in the metal shop, six hours a day. In order to do this work, you’ve undertaken internal prison training. In custody you’ve also completed a number of education and work-related certificates. You have also obtained tickets in CI Card, Foundation OHS and Traffic Management. Further, you have undertaken a 24 hour drug treatment for men program and a release related harm reduction program. Also, while in custody you have been working with the Restart program. You have identified your transitional support domains as including engaging with housing supports, pursuing employment, alcohol and drug treatment, mental health and family and community connectedness. In the community you also have connections and supports, as indicated by the letter from your friend Hayley McGuinness. Upon your release from custody you intend to reside with a brother who lives in Ballarat.

Overall, I accept your counsel’s submissions that your prospects for rehabilitation are ‘guardedly optimistic’. I also take into account the support you’ve been offered by the Church upon release and the salutary impact of prison and the criminal process, in circumstances where this really does represent your first prison term and it has been a significant one.

Atalani

In your case Mr Atalani provided you remain drug free and receive the treatment you require, I consider that you have reasonable prospects of rehabilitation. In my assessment I have taken into account your relative youth, your limited prior criminal history, your family support and the training and rehabilitation programs you have undertaken in custody. A letter in support of you was provided by your partner Siniva Faitotoa. She states that you are eager to return home; to make better choices for your family and children and you have discussed your future plans together and also how you must deal with the consequences of your actions.

Ms Cidoni assesses you as a ‘medium-high risk’ of reoffending. Contributing to this assessment are several risk factors, including childhood maladjustment, family instability, age, substance abuse, mental health conditions and prior criminal history. Your major risk is driven by your substance abuse history and your potential for relapse.[26] She considers that you would benefit from a psychiatric evaluation and a neuropsychological assessment and also therapy to manage your anger and regulate your emotions.
[26] Report of psychologist Gina Cidoni, dated 17.9.2023, paragraph 110

Parity

The principle of parity is always a relevant consideration when dealing with co-accused. In this case, while relevant I consider that disparate sentences are justified and explicable. As between Ms Ata and Mr Sione, you have pleaded guilty to different charges and while you Ms Ata were actively involved in the offending, it is accepted that you were not complicit in the possession or use of the knife; or in assaulting the victim. As between Ms Ata and Mr Atalani, again the charges are different, and Ms Ata is significantly less involved. Different sentencing regimes also apply. In addition to these matters, there are important differences in your personal circumstances and my assessment as to your rehabilitative prospects. But I make clear that it is a matter that I have obviously carefully considered and taken into account.
Sentencing principles
The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty, including in particular the charges of aggravated carjacking, carjacking and armed robbery, along with the discharging firearm offence. These have assisted me but as has been said many times before, comparable cases are not precedents and they do not fix boundaries that bind the Court. In the context of sentencing, no two cases can be alike.
I have also taken into account the maximum penalties and the principles of parsimony, proportionality and totality. In particular, as the parties have submitted totality is an important consideration in your cases.

Ata

In your case Ms Ata, your Counsel submitted that it was open for the Court to impose a term of imprisonment in respect of the carjacking and to effectively otherwise sentence you to a community corrections order (‘CCO’). The prosecution did not dispute that a combination sentence was available. You were assessed by corrections as suitable, with recommended conditions. In your case, I consider that a CCO has the capacity to both punish and rehabilitate you. As the higher courts have stated it is an intrinsically punitive order but it is also one that can afford you the best prospects for rehabilitation.[27] The order will demand of you that you take personal responsibility for your self-management and self-control and that you continue to pursue treatment and rehabilitation.

Sione

[27] Boulton v The Queen [2014] VSCA 342

In your case Mr Sione, your Counsel submits that it was open to the Court to impose a CCO, take into account the time that you have served but not formally declare it. The term you have served on remand clearly exceeds 12 months and you have already had 261 days formally declared. The prosecution submit that a sentence structured by way of a non-parole period is required. My task is to impose a sentence that is just and appropriate according to law. I must give weight to and reflect the relevant sentencing principles, including your rehabilitation, but I must not artificially structure a sentence to avoid the potential operation of the Migration Act.

As I have already stated, the risk of deportation is a relevant consideration that I have taken into account but the sentence I impose cannot be determined by this prospect. I appreciate that it is possible, if not very likely, that any non-parole period or CCO I impose will be frustrated by the risk of deportation. It will ultimately be a matter for the authorities as to the steps they take in response to the sentence that I have imposed. In your case, you have a very limited prior criminal history and I consider that you have served a significant period in custody to date, approximately 843 days in total, 582, that is around 19 months referable to this matter.

I consider that a combination sentence in your case is just and appropriate. I have assessed your rehabilitative prospects as overall to be generally favourable, particularly having regard to your proven ability to live a law abiding and productive life over many years. I consider that a CCO will best facilitate your reintegration back into the community, assist further your rehabilitation and in the end, better protect the community. I note that the MHARS report refers to you as presently presenting with adjustment difficulties that you will need assistance with.

Atalani

In your case Mr Atalani, as both Counsel accepts, given the nature of your offending and also the relevant statutory regime, the only just and appropriate sentence is one structured by way of a non-parole period and head sentence.
In fixing the sentence for the charge of aggravated carjacking, I have borne steadily in mind that the offending attracts a maximum sentence of 25 years imprisonment, and I have assessed the offending using both the maximum sentence and the mandatory gaol term to be served for no less than three years.
As the Court stated in Mammoliti:
‘the legislature has made it clear that aggravated carjacking is a serious offence. There is no escaping a relatively long custodial sentence. Accordingly, the mandatory minimum non-parole period must be reflected in the head sentence.’[28]
[28] Mammoliti v The Queen [2020] VSCA 52
I also note that the mandatory minimum non parole period sits along-side, and does not displace, established sentencing principles. It does not depart from the instinctive synthesis approach to sentencing.
In respect to the discharge and possession charge, I am also mindful of not imposing double punishment, as well as applying the principle of totality, in order to arrive at an overall just sentence. I also take into account that you have no previous criminal history relating to the illegal use of firearms and that your history is very limited. These matters will be reflected in the modest cumulation I propose to order in relation to Charge 5. The orders for cumulation generally reflect the application of the totality principle in your case.
In determining your non-parole period, I have also taken into account the matters that I have already referred to, including your relative youth and vulnerable mental health and the interests of the community in promoting your rehabilitation after service of a significant prison term.

Sentence

Having synthesised all relevant matters and taking into account all of the material before me and the submissions made you are each convicted and sentenced as follows: -

Ata

Ms Ata, could you stand please.

Ms Ata, in respect of Charge 1, which is on indictment ending 230, that is the robbery, I sentence you to 53 days' imprisonment and an 18-month community corrections order.

In respect of Charge 2 which is the theft, I sentence you to an 18-month community corrections order.

On the indictment ending 23, I sentence you on Charge 1 to an 18-month community corrections order.
On Charge 2, the carjacking, to 254 days' imprisonment, noting, and I have broadly taken into account it may be 256, but I sentence you to 254 days.
Charge 3, theft of motor vehicle, 18-month community corrections order.
And then on the two charges of failing to answer bail, 18-month community corrections order.
The periods that I have imposed, the prison sentences, are to be served cumulatively, which then arrives at 307 days' imprisonment.
The 18-month community corrections order, pursuant to – I think it is s40 – is intended to be the one order.
Mr Fisher, this is directed at you. I can do that, even though it is across two indictments, can't I? It is intended to be the one order to operate on the separate charges.
MR FISHER: That's correct, Your Honour.
HER HONOUR: Thank you. So it totals 307 – just one moment if you will. Yes, it totals 307 days as between the sentences I have imposed and an 18-month community corrections order. Do you understand?
OFFENDER ATA: Yes, Your Honour.
HER HONOUR: And the 18-month community corrections order will have as follows:
Conditions of supervision, treatment and rehabilitation for drugs, treatment and rehabilitation for mental health and programs – other treatment or programs.
I also impose community corrections work, 50 hours, and I offset 50 hours as against treatment. So if you do 50 hours of treatment, it will go towards the community work that I have just imposed.
That is going to be printed and your counsel will have an opportunity to go through the conditions with you to ensure that you understand them, that you consent to them.

HER HONOUR: Pursuant to s18 of the Sentencing Act, I declare that you have served 307 days in custody.
My s6AAA declaration – I have found all the s6AAA declarations a bit difficult here but I declare that I would have imposed a sentence of some two years and four months' imprisonment with a non-parole period of some 15 months.
Now you can take a seat for the time being. Thank you.
Mr Fisher, just to be sure then; it is the 307 days, which is around ten months,
clearly available, correct?

MR FISHER: Yes, Your Honour.
HER HONOUR: Thank you.
I will move on to Mr Sione.

Sione

Mr Sione, on your charges, Charge 1 – so Mr Sione has served 582 days which is around 19 months, is that right?
MR BLOEMEN: Yes, Your Honour.
HER HONOUR: What I am proposing to do, Mr Sione, is in your case on Charge 1, armed robbery, I am imposing a sentence of 20 months' imprisonment with a community corrections order of 15 months.
Now, counsel, you both agree, no doubt, that pursuant to s44 – it is open to do that procedurally, that is he has served most of that time, if not all of it, as pre-sentence detention. I have a nod of the head here. Mr Fisher, do you agree?
MR FISHER: Yes, Your Honour.
HER HONOUR: Thank you. I do not know what that leaves in terms of when you are eligible for release, and, Mr Sione, I make plain that I do not know what that means in terms of any executive action. But that is the sentence that I have considered is just and appropriate, taking into account the many, what I regard as mitigating factors, in your case – and your very lengthy period on remand.
So Charge 1, the 20 months plus CCO of 15 months.
Charge 2, the common assault, will be the 15-month CCO.
Charge 3, theft of motor vehicle, 15-month CCO.
The offending on bail, I impose a sentence of seven days, but that will be ordered to be served concurrently.
I declare pursuant to s18 that you have served 582 days.
I declare again, approximately, pursuant to s6AAA, I would have sentenced you to some three and a half years' imprisonment with a non-parole period of two years and three months.
So the purpose of these s6AAA declarations is really to indicate to you all that you have saved yourselves significant time by proceeding in the manner that you have and assuming responsibility.
Anything further in relation to Mr Sione? Have I covered all charges?
MR BLOEMEN: Yes, Your Honour.
MR FISHER: Your Honour's covered all charges, there is just the licence issue - - -
HER HONOUR: Yes, there is, we will return to that once I have just finished with Mr Atalani.

Atalani

Mr Atalani, in your case I am proceeding as follows:
Charge 1 which is the theft of number plates, six months' imprisonment.
Charge 2, theft of motor vehicle, eight months' imprisonment.
Charge 3, the use of the firearm, 22 months' imprisonment.
Charge 4, aggravated carjacking, four years' imprisonment.
Charge 5, prohibited person possess firearm, ten months' imprisonment.
Charge 6 prohibited person possess imitation firearm, eight months' imprisonment.
Charge 7, handling stolen goods, eight months' imprisonment.
On the possess ammunition, just bearing in mind and keeping in mind totality and the fact that you are serving a long prison sentence, I am convicting you and imposing a fine of $200.
The proceeds of crime charge is two months' imprisonment.
Orders for cumulation are as follows:
Charge 1, one month; Charge 2, one month; Charge 3, eight months. Sorry, I should have said, Charge 4 is obviously the base. Charge 5, two months; Charge 6, one month; Charge 7, one month. And there is no order on the proceeds of crime charge.
That should be a total of five years and two months' imprisonment. And I will just wait for counsel to have an opportunity to double-check my math.
COUNSEL: Correct, Your Honour.
HER HONOUR: And I propose, and I will set, a non-parole period of three years and three months' imprisonment. Was it 375 days, Mr Thomas?
MR THOMAS: Yes.
HER HONOUR: I declare, pursuant to s18 that you have served 375 days.
And again, pursuant to s6AAA, had you not entered a plea of guilty I would have sentenced you to some seven years with a non-parole period of four years and nine months.
Is there anything that is not clear or that I need to do, putting aside disqualification issues for Mr Atalani?

HER HONOUR: You will have a chance to speak to Mr Thomas though. I am just going to return to Mr Sione.
Mr Sione, in terms of your order, I am required first of all to indicate to you what conditions I impose and then to ensure that you consent to it, in a bit more detail than with Ms Ata because you are appearing remotely.
First of all, the additional conditions I impose are supervision, treatment for drug and alcohol, treatment for mental health and treatment for programs to reduce re-offending and supervision, if I did not already say that. They are the additional conditions.
·You must also understand that Corrections orders have core conditions, in other words, conditions that apply to all Corrections orders and they include that first of all you will need to, upon your release, report to Community Corrections and it’s the Ballarat one that is nominated here in light of your intended address.
·You must comply with any obligations or requirements of Corrections.
·You must not commit, whether in or outside of Victoria during the period of the order, which is 15 months on the day of your release, an offence punishable by imprisonment.
·You must report to and receive visits from Corrections.
·You must notify them of any change of address or employment within two clear working days after the change.
·You must not leave Victoria except with the permission of Corrections; and
·You must comply with their directions.
Now do you understand the conditions? There are the extra ones and the ones I have just read out are the core, basic ones. Do you understand them?
OFFENDER SIONE: Yes, Your Honour.
HER HONOUR: Okay. Now in terms of breaching an order, it will be breached if first, you do not comply with the condition; second, you commit an indictable offence punishable by imprisonment; if you breach an order then it can return back before me, you will be dealt with for the breach and also I have the power to resentence you for the original charges. Do you understand?
OFFENDER SIONE: Yes, Your Honour.
HER HONOUR: Understanding what the conditions are, understanding how they are breached and the consequences of breaching, do you consent to the order?
OFFENDER SIONE: Your Honour.
HER HONOUR: Yes, okay. I think that is sufficient unless counsel tell me otherwise?
MR FISHER: No, Your Honour, that is sufficient.
HER HONOUR: All right. Licence, Mr Fisher, is it s89 of the Sentencing Act?
MR FISHER: Section 89, yes. Yes, my brief note is as follows. In relation to the charge of both carjacking and aggravated carjacking, they are classified or defined as serios motor vehicle offences which are under s87.
HER HONOUR: Yes.
MR FISHER: There is a mandatory period of disqualification in relation to carjacking, so this will affect Ms Ata, it is not less than 12 months. In relation to the aggravated carjacking, Mr Atalani, it is a period of 24 months. In relation to Mr Sione, he as well as Ms Ata, has the theft of motor vehicle charge and that falls under s89(4), and that is a (indistinct words) - - -
HER HONOUR: Upon conviction I have to - upon conviction I have to interfere with it, but it's discretionary as to how long, is that the one?
MR BLOEMEN: Yes.
MR FISHER: That's correct. And if Your Honour doesn't specify a period - and I haven't got the section right in front of me, but I think it's a period of three months that is (indistinct words) - - -
HER HONOUR: Yes, I think that's right.
MR BLOEMEN: No, I agree with that, Your Honour. Section 5 of 89 - - -
HER HONOUR: Yes.
MR BLOEMEN: - - - it's three months if Your Honour doesn't specify, but upon conviction Your Honour has to make an order - - -
HER HONOUR: Yes.
MR BLOEMEN: - - - but can be of any duration.
HER HONOUR: Yes, okay. Do counsel wish to be heard in respect of these matters? Do you agree that in relation to the carjacking an aggravated carjacking, they're mandatory terms?
COUNSEL: Yes, Your Honour.
HER HONOUR: Okay, does anybody wish to be heard otherwise?
COUNSEL: No, Your Honour.
HER HONOUR: No, okay. What I propose to do, Ms Ata, could you stand again please. What I will do is in respect of Charge 2 on the indictment ending 232, so the carjacking, I am going to disqualify you from driving for a period of 12 months which will commence today. In respect of Charge 2 on the indictment ending 230, which is the theft of motor vehicle, I will disqualify you from driving for a period of three months, but that is to operate concurrently with the 12 months period, okay. So it's a total effective period of disqualification of 12 months. You must not drive and you will have to take active steps presumably, you'll need to look into it to get your licence back. Okay?
OFFENDER ATA: Yes, Your Honour.
HER HONOUR: If you do drive it's an indictable offence. Okay, thank you, you can take a seat.
Now Mr Sione, in relation to you on the theft of motor vehicle charge I am also going to disqualify you from driving and I am going to limit that to a period of three months. The main reason for doing that, I take into account rehabilitation is a relevant consideration, but really I take into account that you have been in custody since July of 21 and there has been some delay here and the interference is as of today. So taking that into account I am going to keep it to a relative minimum period of time of three months, okay. But you are disqualified from driving for that period of time. Do you understand?
OFFENDER SIONE: Yes, Your Honour.
HER HONOUR: Okay, thank you. Mr Atalani, in relation to you then, there's a mandatory period that applies to Charge 4, which is the aggravated carjacking, of two years so I will disqualify you. I won't go beyond the two year minimum but it will be for a period of two years that you are disqualified from driving, okay.
OFFENDER ATALANI: Yes, Your Honour.
HER HONOUR: All right. In relation to Charge 2, which is the theft of motor vehicle, also I will disqualify you for a period of three months but that will be to operate concurrently, so it is a total of 24 months. Understood?
OFFENDER ATALANI: Yes, Your Honour.
HER HONOUR: Okay. Mr Fisher, is there anything else?

MR FISHER: Your Honour, can I just apologise, I think I've overlooked something. I'm grateful to my instructor. I think there's a forfeiture order, indeed there is in relation to Mr Sione, which should relate to the knife, it's the folding knife.
HER HONOUR: Yes, he's quite right, I've got it here in front of me. I'm sorry, it's just that we were in court a while ago. Yes. That relates to the knife. I presume, Mr Bloemen, that's not opposed is it?
MR BLOEMEN: No, Your Honour.
HER HONOUR: I make the forfeiture order in the terms sought. Should this reflect the summary offences? What I might do is I might stand down for a moment, because this might take a few moments. Ms Ata's in court, so we have the benefit of her being in court. I am just getting two orders. My intention was to impose one pursuant to s40, 'If an offender is convicted or found guilty by a court of two or more offences which are found on the same facts or form part of the series of offences of the same or similar character, the court may make one order in respect of those offences in place of separate orders. More than one offence must not exceed the period …'.
I am just being told that there is no way to generate one order because they're on two separate indictments. Look they're a year apart or thereabouts. I had just considered the ultimate result would effectively, for all purposes be the same. There's nothing preventing me from imposing two orders, effectively to run concurrently and the only consequence is if she breaches them, then she's in breach of two orders.
MR FISHER: Well that's right but obviously Your Honour's sentencing remarks will be available. Any submissions can be made if that eventuates. But I think that's the solution, Your Honour, just two orders that are identical that run concurrently.
HER HONOUR: Yes. What does that end up being though? That's an 18 months order on a theft and fail to answer bail. Okay look what I'm proposing to do, Mr Fisher is, the fail to answer bail and theft, that is Indictment 323, that's a charge of theft and the two counts of failing to answer bail. I'm not going to impose a sentence of 18 months, even though they will operate concurrently. I'll make that 12 months. I'll remove the community work condition from it. It's to operate concurrently with the 18 month order, okay.
MR FISHER: Yes, Your Honour.
HER HONOUR: So the same effect, but I just don't think it's correct just because a computer is telling me that I can't generate the one, that I should make it the 18. I think the just and appropriate sentence here is 12 months on that one and I'll leave 18 months on the robbery and theft. Do you wish to be heard in respect of that?
MR BLOEMEN: No, Your Honour. No.
HER HONOUR: Okay. So Ms Ata, just to make clear then, it's going to be generated now. The one order that attaches to the robbery, 53 days, 18 months on the theft, okay, you are going to be on another order as well which relates to a theft and failing to answer bail. It's 12 months, same conditions, but no community work on it. They will operate concurrently. I will make that very clear on the orders. They operate at the same time. The only difference though is if you breach, you'll be in breach of two orders, so it does have a consequence. Do you understand?
OFFENDER ATA: (No audible response.)
HER HONOUR: Okay. It might be that those links end in a moment, so no doubt counsel will speak to their clients in the event that that happens and we'll finalise Ms Ata's matter. We'll keep the links on until they continue, but it may be that they abruptly end.
Now if you would like to approach Ms Ata - - -
COUNSEL: Yes, Your Honour.
HER HONOUR: - - - and go through those conditions with her.
COUNSEL: Will do, Your Honour.
HER HONOUR: She should have a pretty good understanding of them though by now, I would have thought. All right, copies will be made available. Counsel, thank you very much, thank you for returning this afternoon.

[2023] VCC 2167

20 November 2023