Director of Public Prosecutions v Bufete

[2015] VCC 754

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01519

DIRECTOR OF PUBLIC PROSECUTIONS

V

THOMAS BUFETE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2015
DATE OF SENTENCE:	4 June 2015
CASE MAY BE CITED AS:	DPP v Bufete
MEDIUM NEUTRAL CITATION:	[2015] VCC 754

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords:  Pleaded guilty to 4 charges armed robbery, handling stolen goods, 2 charges reckless conduct endangering persons, possession of drug of dependence – youthful offender – under influence of Ice – extreme aggression -  offended whilst on youth parole – dysfunctional family background
Sentence:  4 years non-parole period 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Vella	OPP
For the Offender	Mr W. Barker	David Barrese & Associates

1HER HONOUR:  Thomas Bufete, you have pleaded guilty to four charges of armed robbery as well as a related charge of handling stolen goods, two charges of reckless conduct endangering persons, and a charge of possessing a drug of dependence, namely cannabis.  Whilst under the influence of the drug known as ice, and whilst homeless due to the effects of drug abuse, you embarked on a series of armed robberies despite being on parole at the time.  At the age of only 23, you have a considerable criminal history with both prior and subsequent offending and your prospects for rehabilitation are guarded but with some positive indications.

2You committed the first of the armed robberies, charge 1, on 16 April 2014 just before 7.30 pm.  Driving a stolen car, a dark grey Territory, without registration plates you went to Woodland Cellars liquor store in Essendon.  The owner, David Dai, was working there alone.  Wearing a hood and armed with a very large machete, you approached the counter and called out, "Gimme money, gimme money, quick, quick."

3In the CCTV footage, shown in court during the plea hearing, you can be seen raising the machete to head height and pointing it towards Mr Dai in a menacing fashion, then using it to smash the computer screen on the counter.  While continuing to hold the machete up, you demanded of Mr Dai that he place money from the till into a bag, a sum of about $200.  You then went behind the counter and screamed at Mr Dai to take you out back to the safe, but Mr Dai told you he did not have a safe.

4You became angry and turned to walk out and as Mr Dai walked after you, you turned to face him, pulled out the machete and held it to his face.  You then drove away from the car you had arrived in.  The witness who saw you before you entered the store identified you from a photo board.  You then drove to the BWS drive-through bottle shop at the Westmeadows Hotel, arriving there at about 7.45 pm.  This is charge 2.  You positioned the car in the driveway, facing the wrong direction, enabling an easy exit.  Two men were working there; Matthew Allen and Daniel Fornito.  You drove up to the counter wearing a hood and a cap on your head, and assailed Mr Fornito by asking him, "Do you have a fucking problem?"  He replied there was no problem, and you then demanded the till, and the money.  Mr Fornito refused, and you pulled out the machete, and held it out the window to Mr Fornito whereupon he opened the till and put it on the counter.

5You grabbed the till with gloved hands and asked for the safe.  You told Mr Fornito to get it, and as he put in the code for the safe, you asked for a bottle of whiskey.  You continually asked how long the code would take and started banging the machete on the dash of the car.  When another car approached the drive-thru, you told Mr Fornito to wave the driver through, threatening to hit him or stab the driver if he got out of the car.  Mr Fornito waved the driver through.  The safe then opened, and Mr Fornito gave you the cash tin from inside containing $360.  You then drove off. 

6Three days later, on 19 April, you drove the same car to the Holiday Inn at Melbourne Airport, again wearing a hood over your head.  This is charge 3.  You entered the reception area carrying the machete under your arm, raising it as you approached the two staff working there and demanding, "Where is the money?  Get me money, or I'm gonna kill you."

7You walked behind the counter and slammed the machete onto the counter saying, "Give me the money", continuing to gesture with the machete.  Malinda Liyanage opened the cash drawer and told you to take the money.  You said to him, "No I want the other money."  You can be seen on the CCTV footage following Mr Liyanage into the back room where the safe was located and pushing him through the door with the machete still raised.

8At this time, the other staff member, Melanie Boff, left the reception area.  The night manager who had been present had already left to get help.  Mr Liyanage opened the safe in the back room and offered you the money.  You handed him a plastic bag, and told him to put the money into it, gesturing with the machete.  You told him just notes, not coins, and after he had placed notes and some float bags in the plastic bag you again brandished the machete and demanded more money.  Mr Liyanage went to the front counter and found some loose coins and notes and put them in the bag.

9You also picked up some notes and then left.  The total amount you took was between $5,000 and $6,000.  Two nights later, on the night of 21 and 22 April, a set of registration plates was taken from a silver Ford Territory parked in Lalor.  On 24 April, you placed these stolen plates on the dark grey Ford Territory you had been driving for the armed robberies you had committed over the previous few days.  This is charge 4, handling stolen goods.

10At about 10 pm that night, you drove the car to Taylors Lake Hotel in Melton.  An unknown co-offender was driving and you sat in the front passenger seat.  Both of you had hoods over your faces and wore gloves.  You parked in the driveway of the Thirsty Camel bottle shop drive-thru and turned off the headlights.  The car was then driven quickly alongside the counter, and the driver held the machete so it was visible to Michael Angiolino who was working there.  He ran to the backroom and told his co-worker, Joel White, who had contacted security via a walkie talkie.

11The CCTV footage shows you going straight to the cash register and trying to rip it off the counter.  The co-offender was carrying the machete and went to the store door, where he demanded of Mr White to show him where the safe was.  Mr White said there was no safe, and the co-offender went to the counter and used the machete to cut the cord of the computer, releasing it.  He picked up the till, which contained about $980 and put it in the car.

12You grabbed a cash tin from under the counter, and you both left in the car.  This incident is charge 5.  At 12.20 am that morning, 25 April, you were seen driving the Ford Territory to the Junction Hotel in Preston where you, wearing the same black hoodie as you had been wearing at the bottle shop in Melton, entered the hotel with your associate Rudi Duarte.  You played the pokies while Duarte watched and then you both left.  Around this time, police arrived and saw the Ford Territory in the car park.  You got into the driver's seat of the Territory and police drove their vehicle in front of it to block its way.

13Simultaneously, you drove forward and rammed the side of the police car with some force and continued to do so, eventually getting past the police vehicle and driving off at a fast speed.  The police car was substantially damaged and the car parked alongside the Territory was also damaged.  This is charge 6, the first charge of reckless conduct endangering a person.

14At 6 am that morning, the police located the Territory parked outside Duarte's house, but it was driven away from there before it could be intercepted.  15 minutes later, it was found in a McDonald's car park and you began driving it towards the city, before taking the Tullamarine freeway towards the city.  You drove at a fast speed towards Melbourne Airport and then took an exit to the long-term car park and crossed over, heading back on the freeway towards the city.  Driving in the right-hand emergency lane towards Mickleham Road, you reached a speed of 140 kilometres per hour in a 100 kilometres per hour zone, rapidly passing other vehicles.

15Pursued by police, you gained more distance at speeds up to 140 and 150 kilometres per hour.  You then left the freeway and drove in residential and light industrial streets, through red lights and exceeding the speed limit.  This is charge 7, the second charge of reckless conduct endangering a person.  The pursuit ended when the car blew a tyre in Brunswick at about 7.30 am, after about an hour and a quarter since leaving the McDonald's car park.  You fled on foot but were arrested. 

16In the car, police found a small bag containing a small amount of cannabis and a glass bong.  It is accepted that the cannabis was for your own use rather than for trafficking.  This is charge 8, possessing a drug of dependence.

17When questioned after your arrest, you denied the offending.  You were remanded in custody and since then you have served two sentences for which pre-sentence detention of 61 days and 184 days respectively was declared.  Pre-sentence detention in respect of these matters is therefore 160 days, not including today.

18You offered to plead guilty to the charges as they now stand in October last year, but the offer was refused initially and later accepted.  Accordingly this was a reasonably early plea although not before several witnesses, including two of the victims had been cross-examined at the committal.  The plea has avoided the expense and inconvenience of a trial, and for that you are entitled to a discount on your sentence.  I also accept it as an indication of remorse, which you have expressed in other ways as well.

19An aggravating factor is that you committed these offences whilst on parole.  On 25 May 2012, you were convicted of armed robbery and sentenced to 24 months in a youth justice centre.  You were granted parole on 8 April 2013, due to expire on 11 May 2014, just after you committed these offences.  Apparently you had been compliant with your parole conditions except for this offending and the other offences for which you received the sentences that I have just referred to.

20Further aggravating features are that a certain amount of planning is evident, albeit the crimes also demonstrated a lack of sophistication, with a high likelihood that you would be caught.  Of course, they were committed at night, and involved people working at their jobs in circumstances where they could not defend themselves and were vulnerable to this type of attack.

21The problems which explain your fairly intense criminality over the past few years seem to have their origin in a combination of causes stemming from a dysfunctional family background with a sense of rejection within your family and with no clear male role model.  This is evidence from the report provided by the psychologist, Ms Carla Lechner, after she assessed you in 2012 for your court hearing in relation to the armed robbery you committed in December 2011. 

22You were born in the Philippines on 23 April 1992.  Your parents brought you to Australia as a baby, but after arrival, your father had no further role in your life.  Your mother married again and has three children from that relationship.  You felt excluded and treated differently, and indeed the Department of Human Services became involved at least once but without leading to any change in your upbringing, which continued to include physical abuse.  It seems there were behaviour and discipline problems at home and at school and although your mother tried to address them, she felt compelled to adopt the punitive approach encouraged by your stepfather. 

23Ms Lechner discerned from your history that you were an immature young man and that the physical and emotional abuse you suffered within the family had led to anger and rebelliousness in your adolescence.  I can infer from that report that you lack self-esteem and are easily overwhelmed by difficulties but to your credit, you can easily express sympathy with those you have hurt by your crimes and are sorry for what you have done both in the past and presently.

24Your poor problem-solving skills which appear to have played a large role in your offending seem to have been affected partly by your immaturity and some depression, but significantly also by drug abuse.  The armed robberies were committed because you needed money for rent and to support your drug habit.  After leaving school during year 9, you had a good start as an apprentice and worked in a number of different jobs.  You were not able to continue with the apprenticeship owing to redundancy.  Apart from occasional cannabis use, you had not been a drug user at the time of the first armed robbery in 2011, nor during your parole.

25You began using drugs such as cannabis and ice when you were living with your girlfriend, Tammi-Lea King, and her family.  Ms King had become pregnant, and you felt overwhelmed.  As a result of your changing lifestyle, you left their home and stayed with friends with whom you continued to drugs and to offend.  The baby was born after you were remanded and so you had not seen him until the plea hearing two days ago.

26As to the offences for which you are now to be sentenced, you were drug-affected at the time, using half a gram of ice a day and spending extended periods without sleep.  During the offending, you exhibited extreme aggression and violence with potential for real physical harm being done.  The victims would have been terrified and indeed Mr Dai said in his victim impact statement that he has become very anxious and super-sensitive, needing to see a psychologist, leading to stresses in his marriage.  He now needs medication for nightmares.

27Mr Angiolino said he has never worked in a bottle shop again and is still fearful every day when he goes to his present job, starting each day in the dark.  His anger caused problems which led to him breaking up with his girlfriend.  The CCTV footage, which I have already referred to, shows graphically the extent to which you behaved in an extremely menacing way with the machete, combined with your aggressive demands.  Your background of offending began when you were then aged 19 and you were sentenced in the Magistrates' Court for an assault and charges of contravening a family violence order, which I understand relate to the difficulties at home to which I have already referred.

28You were placed on a Community Corrections Order, having already served 51 days in custody.  On the same day, you were dealt with in the Children's Court for a number of offences and placed on an adjourned undertaking.  You were dealt with, as I said, in May 2012 for the armed robbery but these earlier matters were not prior offences having been committed after the armed robbery.  A short time later, whilst serving your sentence of detention, you were sentenced to a further three months' detention for breaching the Community Corrections Order imposed in February and the following month you were again dealt with in the Children's Court for a number of dishonesty offences for which a further part-concurrent detention period was imposed.  Accordingly, although you have spent time in adult custody before, you have not served such a sentence before.

29In the circumstances of this case, both general and specific deterrence are of great significance.  The message must be imparted to others that a serious crime such as armed robbery will result in severe punishment.  The manner in which you drove the car was also very serious and deserves appropriate punishment.  You, yourself, must also be deterred from offending again.  You have expressed a change in attitude which has been confirmed by those close to you, and you have demonstrated by your previous compliance with parole conditions that you are able to respond to direction and supervision.  Unfortunately that did not prevent you from further offending, but your youth means that any positive indications for rehabilitation should be given full opportunity, tempered by the very serious nature of the crimes with their aggravating features.

30I note that the maximum penalties for these offences are 25 years' imprisonment for armed robbery, 15 years for handling stolen goods, five years for reckless conduct endangering a person and five penalty units for possessing a drug of dependence where the drug is a small amount for the offender’s own use as was the case here. 

31Would you stand please, Mr Bufete.  I sentence you as follows, for each charge of armed robbery, three years' imprisonment.  For handling stolen goods, six months.  For each charge of reckless conduct, two years, and for possessing a drug, a fine of $500.  My associate's just handing those orders to counsel so it can be clear. 

32In order to avoid the sentence being a crushing one and in the view of your youth, I shall impose a moderate degree of cumulation. 

33The sentence for charge one will be the base sentence for this purpose.  Three months of each of the sentences for charges two, three and five, and one month of each of the sentences for charges four, six and seven, will be served in cumulation upon the base sentence.  This results in a total effective sentence of four years.

34It will be in the best interests of your rehabilitation and the ultimate protection of the community if you could spend a significant period on parole.  Accordingly, I will order that you serve two years before being eligible for parole. 

35I shall note on the court record that 160 days of pre-sentence detention will be reckoned as already served. 

36If you had pleaded not guilty to these charges, I would have sentenced you to five years' imprisonment with a non-parole period of three years.

37The prosecution seeks an order for the forensic sample to be retained and for orders for forfeiture and disposal, and they are not opposed and I make those orders and I will just see if there are any other matters if I have omitted or neglected. 

38MR BARKER:  No, Your Honour.

39HER HONOUR:  Thank you, Mr Barker.  Mr Barker, I see that there are members of your client's family in court.  If they would like to have a few words of farewell to Mr Bufete I will permit that, but I will remain here while that happens. 

40MR BARKER:  Yes, I am grateful for that, Your Honour.   I wouldn't seek a stay in relation to the fine, if that's what Your Honour's already ordered.  It just wasn't clear.

41HER HONOUR:  There's an automatic stay of one month.  Is that enough?

42MR BARKER:  That's fine.

43HER HONOUR:  Thank you, Officer.  You may take Mr Bufete.

44MR BARKER:  Thank you, Your Honour.

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