Director of Public Prosecutions v Bufete and Duarte
[2012] VCC 683
•25 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00271
Indictment B11618373
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS BUFETE RUDY DUARTE |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 27 April 2012 | |
DATE OF SENTENCE: | 25 May 2012 | |
CASE MAY BE CITED AS: | DPP v Bufete & Duarte | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 683 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M Zammit | |
| For the Accused Bufete For the Accused Duarte | M F Todd Mr V Peters |
HER HONOUR:
1 Thomas Bufete and Rudy Duarte, you have each pleaded guilty to one charge of armed robbery. The maximum penalty in relation to armed robbery is 25 years’ imprisonment.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. Your offending occurred on 2 December 2011. At that time you were each 19 years old.
3 At approximately 3.50 am on 2 December 2011 the owner of the Essendon News and Tattslotto store began work. The owner opened the store at about 4 am. At about 4.20 am he was at the rear of the store loading newspapers into an automatic wrapping machine when he noticed two males walking towards the rear of the shop. You entered the store. You, Rudy Duarte, were wearing a red jumper with a hood pulled over your head, and you, Thomas Bufete, were wearing a grey jumper with a hood pulled over your head. You, Thomas Bufete, also had a purple cloth covering your nose and mouth.
4 You, Thomas Bufete, approached the owner. You grabbed him around the neck with your left arm. In your right hand you had a screwdriver, which you pointed at the victim’s neck. You, Rudy Duarte, then walked up to the owner and asked him where the money was. The owner told you that the money was at the front of the shop. You, Thomas Bufete, walked the owner through the shop, with your left arm still around his neck, to the cash register. The owner handed the till tray to you, Rudy Duarte. You took the cash out of it, and then reached over to grab more cash from a second till. The total amount of cash stolen was $450.
5 You, Thomas Bufete, then dragged the owner into an aisle of the shop and pushed him while trying to run away, as you, Rudy Duarte, walked towards the back of the shop. The owner grabbed you, Thomas Bufete, and you then pushed him to the ground. While the owner was on his knees you punched him to the right side of his body and kneed him to the head. You continued to assault the owner. You, Rudy Duarte, walked back to where they were, and you kicked and punched the victim several times as the victim was lying on the ground. You both then ran out of the store.
6 The owner attempted to chase you. One of his employees had arrived at the store, and followed you in his car. He eventually lost sight of you, but remembered the registration number of the vehicle.
7 Police attended the newsagency and observed minor lacerations to the owner’s face and bruising to the bridge of his nose.
8 At approximately 4.55 am police attended at your address, Rudy Duarte, and observed your vehicle in the driveway of the property. At about 5.20 am you both were located standing on the side of the road. You, Rudy Duarte, gave your name and address. You were then arrested, separated, and taken to a police station. Police had found clothing and shoes in the house and also found $180 cash. You, Rudy Duarte, consented to your vehicle being searched. Further items of clothing were found. The register till and purple rag were located under your house, Rudy Duarte. You were both interviewed at the police station.
9 You, Thomas Bufete, made full admissions. Amongst other things, you admitted that in the early hours of the morning Mr Duarte had woken you up and you had talked for about an hour. You had driven around the area looking for people to rob. You then saw the shop, and decided to go there. You said that Mr Duarte had parked his car down the street. He had given you a screwdriver when you asked him for something to use. You said that you had held the screwdriver up to the owner’s neck. You said the owner had started resisting you. You admitted punching him and kicking him. You said that Rudy Duarte had come and helped you and then you had run off. You said you had gone to run away when you saw the police at the house but then you had walked back and been arrested. You acknowledged that the victim was petrified. You said you had committed the armed robbery because Rudy Duarte was finding it difficult to pay the bills, and that both you and your girlfriend had lost your jobs.
10 You, Rudy Duarte, were interviewed. You denied committing the offences. You also gave police a false alibi and gave a false account of your movements.
11 The owner has declined the opportunity to make a victim impact statement.
12 You both pleaded guilty at the first committal mention. You were both released on bail on 14 December 2011. Accordingly there is 13 days of pre-sentence detention.
13 Neither of you have any prior criminal history.
14 The prosecution seek an order for retention of forensic samples obtained from both of you pursuant to s.464ZFB of the Crimes Act 1958. The prosecution also seeks a restitution order in the amount of $180 and a compensation order in the amount of $270. The making of those orders is not opposed.
15 Mr Bufete, a report was tendered on your behalf from Ms Carla Lechner, clinical and forensic psychologist, dated 10 April 2012 (Exhibit B1). Your counsel relied on the contents of that report in relation to your background and other matters in mitigation.
16 I have taken your personal circumstances into account in sentencing you. You are now 20 years old. You were born in the Philippines and moved to Australia when you were about two years old with your mother. Your mother formed a new relationship and you have three younger siblings. You described to Ms Lechner significant difficulties that existed in the household including significant violence. According to Ms Lechner this environment undermined your educational, social and emotional development. You were expelled from secondary school in Year 10 and did not complete any further formal education.
17 You began a tiling apprenticeship after leaving school but were only able to complete 12 months of that apprenticeship before your employer ran out of work. You later worked at a fast food outlet and then a factory. You lost your job as a factory worker shortly before your arrest on these charges. In late March this year you obtained work with a tiling company. There is a potential for you to commence an apprenticeship or resume an apprenticeship in the future if you are able to continue in that work.
18 You have no prior criminal history, as I have said, but it is of some relevance that you were sentenced in the Magistrates’ Court in February 2012 for subsequent offending including theft, unlawful assault and breaching an intervention order. You were sentenced to a total of 51 days’ imprisonment, which had already been served, and a community correction order of 12 months’ duration with a 150‑hour community work condition.
19 Your counsel submitted that you had had a significant response to your period of imprisonment, and that you understand the seriousness of your position. She submitted that you found imprisonment a confronting experience and did not want that sort of life. Your counsel submitted that you had commenced and complied with your community correction order. I will return to that matter later.
20 In mitigation your counsel particularly relied on the following matters:
(a)Your plea of guilty at the first committal mention;
(b)Your admission as to having had a screwdriver in your hand being the only evidence of the presence of a weapon, as the victim was not sure what you had in your hand;
(c)Your remorse, as indicated by your plea and what you told Ms Lechner;
(d)Your cooperation with the police and full and frank admissions to them;
(e)Your motivation for the offending, described as an attempt to deal with a situation where there was no money for the rent;
(f)Your prospects for rehabilitation; and
(g)Your youth.
21 Your counsel submitted that you ought not be sentenced to an immediate term of imprisonment, especially taking into account that since this offending you had served almost two months in gaol and a portion of a community correction order. Your counsel submitted that a community correction order was within the sentencing range and such an order would support your rehabilitation.
22 In the alternative, your counsel argued that any sentence you were required to serve should be served under a youth justice centre order.
23 Mr Duarte, two exhibits were tendered on your behalf, being a report of Mr Bernard Healey, clinical psychologist, dated 26 April 2012 (Exhibit D1) and a Supervised Bail Progress Report dated 26 April 2012 (Exhibit D2).
24 I have also taken into account your personal circumstances in sentencing you. You are now 20. You were born in the Melbourne area, and are the third child in your family. When you were 11 your parents went to Queensland. Your family is of Portuguese-Timorese background. You left school halfway through Year 11 as you wanted to work. You worked in Queensland but left that employment to return to Melbourne after about nine months in that employment. Your parents had separated and you were missing your family and friends. I note a number of family members and friends were in court to support you.
25 You live in Reservoir at present with an aunt and uncle. At the time of the offending you had been working as an apprentice carpenter in house-framing. That work was sporadic as was the income from it. You got behind in rent and bills.
26 Your counsel described you as being quite focused with a very good work ethic, articulate and well-principled. He submitted that you were a person who wanted to advance your position in life.
27 In relation to the offending, your counsel said that your explanation was that you had smoked some marijuana with Mr Bufete, and under the influence of marijuana made a decision which was “silly” but seemed logical, clear and appropriate at the time. You have said you were very anxious at the time in relation to the money situation and wanted to be rid of that anxiety. Your counsel submitted that although you had made initial denials to the police, that was a matter of denying to yourself and once confronted with the evidence you made full admissions.
28 Whilst conceding that there were some aggravating circumstances, in mitigation your counsel relied particularly on the following matters:
(a)A lack of serious planning;
(b)Your current employment as a house-framer and unblemished work record;
(c)Your engagement in both indoor and outdoor soccer teams;
(d)Your engagement with Youth Justice and attendance at YSAS;
(e)Your remorse and willingness to apologise to the victim;
(f)Your youth;
(g)Your good prospects for rehabilitation;
(h)Your offending was out of character; and
(i)Your lack of prior criminal history or any subsequent offending.
29 In sentencing submissions your counsel submitted that the appropriate sentence would be a community correction order. Your counsel submitted that such an order would allow for supervision and judicial monitoring and would include a punishment factor in community work. He submitted that that would meet the sentencing criteria for a young offender who is a first time offender, given your insight, remorse and rehabilitation.
30 Alternatively, your counsel argued that any incarceration should be served in a youth justice centre.
31 Your employer gave evidence on your behalf and confirmed your employment. He said you were bright and likeable and diligent. He said you were very honest. He said he had seen the CCTV footage in court, and those actions were definitely out of character. He was surprised to see you involved in such a matter. Your employer agreed that you were a valuable employee. He said that he would like to hold your position for you if you were required to serve some time.
32 In sentencing submissions the prosecutor submitted that an immediate custodial sentence would be appropriate, but that any sentence should be served in a youth justice centre. The prosecutor acknowledged that you were both young and with good prospects for rehabilitation. She submitted that the court should take into account the prevalence of this offence, and that this offence was committed on a soft target in the early hours of the morning.
33 The prosecutor submitted that there was some violence used initially when the victim was grabbed around the neck and a screwdriver held to it, and that was clearly an aggravating circumstance. The prosecutor submitted that the assault after the money had been taken constituted an aggravating circumstance that I should take into account in sentence.
34 The prosecutor argued that the offending was planned. She referred to the discussions that took place between the two of you, and that Mr Bufete wore a partial disguise and Mr Duarte parked the car 30 metres up from the shop and that between you, you got the weapon and took it with you. The prosecutor submitted that it should also be taken into account that you, Mr Bufete, were on bail for this matter when you committed other offences, although she agreed that it should be taken into account that you had spent some time in custody since this offending.
35 The prosecutor argued that unlike the situation in Mills’ case, here a youth justice centre order was open to the court. She argued that this armed robbery was not at the lowest end of armed robberies, but was towards the low to mid range.
36 The prosecutor’s instructions were that the appropriate length of sentence would be 2½ to 3 years.
37 After the plea hearing I had each of you assessed as to your suitability for a Community Correction Order. I also had each of you assessed for your suitability for a Youth Justice Centre Order. I have now received reports in relation to your suitability.
38 You, Mr Bufete, are considered unsuitable for a Community Correction Order. You, Mr Duarte, are considered suitable for such an order. Each of you is considered suitable for a Youth Justice Centre Order.
39 The writer of the community correction report, in relation to you Mr Bufete, suggests that you have had difficulties, at the very least, in complying with your current Community Based Order, and that appears to be the basis for the view that you are unsuitable for a Community Correction Order.
40 I note that the Community Correction report in relation to you Mr Duarte refers to an offence or offences which occurred in May 2011 in relation to which you appeared in court on 14 March 2012 and were placed on a 12 month undertaking. For the purposes of sentencing you, I have disregarded that matter.
41 I have given further consideration to your offending and the appropriate sentence. Armed robbery is clearly a serious offence. I have no basis for concluding that it is increasing in prevalence. There are sufficient cases coming before this court to conclude that it is occurring at a rate which leads to the conclusion that any sentence imposed ought give significant weight to general deterrence. I have had regard to the prosecutor’s submissions on and my knowledge of current sentencing practices for this type of offending. This armed robbery took place in the very early hours of the morning and on a vulnerable person who could properly be described as a “soft target”. There were two of you when you entered the store. You had armed yourselves with the screwdriver which you held up to his neck. You, Mr Bufete, walked him through the shop with your left arm around his neck. When the owner grabbed you, Mr Bufete, you pushed him to the ground. You punched him to his head. You continued to assault him. You, Mr Duarte, walked back and kicked and punched him several times.
42 I have taken all these matters into account in considering the seriousness of this armed robbery. It is quite clear that you were both prepared to engage in physical violence in order to achieve your object of taking the money and escaping. I have considered the submissions that were made in relation to this matter. As I have said I have assessed the gravamen of this offending in the light of those activities. I wish to make it clear that I have considered the second part of the assault only in relation to the seriousness of your armed robbery offending. I have not imposed any additional punishment for that matter in itself.
43 It is quite clear that you went out planning to rob somebody and did so. This clearly was a very stupid decision. I accept the decision was made whilst you were under the influence of marijuana but you continued on the plan for a period of time. The offending was not spontaneous.
44 In relation to each of you there are a number of matters that I have taken into account in mitigation of sentence. You both pleaded guilty at an early stage. Neither of you has any prior criminal history. You, Mr Bufete, made full and frank admissions including the particularly important admission that you held the screwdriver up to the owner’s neck. You, Mr Duarte, were not co-operative initially but ultimately did then plead guilty at the first committal mention, as I have said. I have taken into account your motivation for the offending as a matter of an absence of an aggravating feature. Neither of you committed this crime in order to increase your wealth, but rather to pay the rent. I accept, in relation to each of you, that you are genuinely remorseful.
45 A matter of considerable significance in sentencing you each of you is your youth. I do consider this to be a situation where the principles set out in Mills [1998] 4 V.R. 235 ought be given considerable weight without overwhelming the need for a sentence which ought to have a general deterrent effect.
46 Mr Bufete, I accept that you are remorseful and acknowledge your co-operation with the police. Against that, it appears that you committed further offences after this offending and have had difficulty complying with the requirements of your Community Based Order despite having spent a period in adult custody. Despite this, you have, in my view, reasonable prospects for rehabilitation. This conclusion is supported by the opinion of the writer of the Report on Suitability for a Youth Justice Centre Order which is that you have strong prospects for rehabilitation within the community if you were subject to a supervisory order with treatment programs. I have taken into account that you, Mr Bufete, have spent some time in adult custody and found it difficult.
47 Mr Duarte, you did not initially co-operate with the police but have exhibited behaviour since this offending which suggests that you have somewhat better prospects of rehabilitation. You have clearly impressed your employer and have engaged in positive activities of both employment and sport. You have also engaged with Youth Justice and attended at YSAS. I consider your prospects for rehabilitation to be good. Again, this conclusion is supported by the opinion of the writer of the Report on Suitability for a Youth Justice Centre Order which is that you have strong prospects for rehabilitation as evidenced by the steps you have taken to address your substance abuse issues and to maintain employment, your desire to maintain a pro-social lifestyle and your willingness to address issues of concern. The writer considers that you would have the ability to engage in rehabilitation in the community.
48 In my view, your behaviour taking into account matters in mitigation, warrants a sentence of imprisonment or detention for the purposes of denunciation, just punishment and general deterrence. I also consider that specific deterrence ought to be given some weight in sentencing you. I do not consider that a Community Correction Order would sufficiently meet the sentencing purposes of denunciation, just punishment and general or specific deterrence. I consider that this offending is not at the lowest end of armed robbery but rather somewhere between the low to middle seriousness of such offending.
49 Having taken into account, in relation to each of you, the matters in mitigation and your prospects for rehabilitation and your involvement in this crime, I consider that it would be appropriate to sentence each of you to the same sentence.
50 I have received a report for each of you as I have said on your suitability for a Youth Justice Centre Order. The writer, in relation to each, says that it is the view of the Department of Human Services, Youth Justice, that you meet the criteria for a Youth Justice Centre Order and that you are suitable for such an order. I agree with that conclusion and I consider that such an order would be the appropriate disposition. I have taken into account your prospects of rehabilitation and your vulnerability. It appears to me that given your young age, your personal histories, the nature and circumstances of your offending and your subsequent activities that you would be subjected to undesirable influences in adult prison. The Youth Justice Centre system provides, in my view, the best prospects for your rehabilitation.
51 Mr Bufete, on one charge of armed robbery, you are convicted and ordered to serve a period of 24 months detention in a Youth Justice Centre.
52 Mr Duarte, in relation to one charge of armed robbery, you are convicted and ordered to serve a period of 24 months detention in a Youth Justice Centre.
53 But for your plea of guilty, I would have sentenced each of you to 32 months’ detention in a Youth Justice Centre.
54 I refuse the order for the retention of forensic samples. I do not consider that such an order is justified in the circumstances despite the seriousness of your offending and consent to the order. I have particularly taken into account what I have said about your prospects for rehabilitation and your youth.
55 I make a restitution order in the amount of $180 and a compensation order in the amount of $270.
56 In relation to pre-sentence detention, in relation to the Youth Justice order, is pre-sentence declared?
57 MS ZAMMIT: Yes, Your Honour.
58 HER HONOUR: All right it is 13 days in relation to each, is that correct?
59 MS TODD: Correct, Your Honour.
60 HER HONOUR: Thank you. I order that 13 days of this sentence has been served in relation to each of you by way of pre-sentence detention and order that that declaration be recorded in the records of the court.
61 Is there anything further that requires clarification, repetition or an additional matter that I have neglected to make reference to?
62 COUNSEL: No, Your Honour.
63 HER HONOUR: Thank you all very much.
64 Mr Duarte, Mr Bufete, I hope that this is the last time that you appear in court and that you are able to make the changes in your lives that you want to make, thank you.
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