Director of Public Prosecutions v Fauatea

[2014] VCC 2089

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01271

DIRECTOR OF PUBLIC PROSECUTIONS

v

FAALILI FAUATEA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2014
DATE OF SENTENCE:	28 November 2014
CASE MAY BE CITED AS:	DPP v FAUATEA
MEDIUM NEUTRAL CITATION:	[2014] VCC 2089

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr S. Gardner	James Dowsley & Associates
For the Director of Public Prosecutions	Ms. S Clancy	O.P.P

1Faalili Fauatea, on 19 November 2014 you pleaded guilty to the following charges on Indictment C1409595, Charge 1, intentionally cause serious injury to Ignacio Zininga, Charge 2, affray and Charge 4, armed robbery of Zaclane Bashir.  You also pleaded guilty to one summary charge, Charge 8, of assaulting Jason Hill.  Charge 1 has a maximum penalty of 20 years' imprisonment, Charge 2 has a maximum penalty of 5 years' imprisonment, Charge 4 has a maximum penalty of 25 years' imprisonment, the Summary Charge 8 has a maximum penalty of three months' imprisonment.

2Your offending occurred on two separate days with your co-accused, Aholeley.  I have already dealt with his offending.  A lot of what I have said about him applies to you.  However, on 9 April 2014 you committed Charges 1 and 2 on the indictment and the Summary Charge 8.  On that day, 9 April 2014, with three co-accused you pursued Jason Hill to the foyer area of the Derrimut Hotel.  You assaulted Hill, that is Charge 8.  You were also involved in the fighting and struggled with the hotel security staff before leaving the hotel.  Once you left the hotel you, Aholeley and JE then walked across Durham Road, and approached the victim, Zininga, who was walking through the car park on his way home.  Without warning, you punched the victim to the left eye causing him to fall to the ground.  The victim could not remember anything that occurred from that point on due to the concussion he received from that hit.  Whilst the victim was on the ground and attempting to get up, you grabbed and struggled with the victim whilst Aholeley stood close by.  Within the ensuing altercation Aholeley's actions included pushing the victim down on the ground when the victim again attempted to stand up, you kicked him in the head.  The three of you, you, Aholeley and JE soon after walked away, leaving the victim on the ground.  You did not return to the victim at that time.  In short, you had done your damage on Zininga and you had left him helpless on the street.  The CCTV footage of your offending is Exhibit B. 

3The injuries to Mr Zininga were, a fractured ankle which required surgery, a laceration to his left eyebrow eight centimetres in length and deep and grazes and scratches to his hands and neck.  He remained in hospital until 24 April 2014.  The photographs of Mr Zininga are Exhibit D and clearly show the extent of his injuries.  I have previously referred to Mr Zininga's victim impact statement which is Exhibit E and will not repeat it here.  Your actions were those of a coward, not a proud Samoan man.

4The second day of offending was 11 April 2014.  This is Charge 4 on the indictment.  At approximately 5.30 on 11 April the two of you entered the BP service station at McIntyre Road in Sunshine North and approached Zaclane Bashir who was mopping the floor outside the secure cashier area.  You have produced a screwdriver and the two of you started yelling at him to open the door in the secure cash register area and to give you cash.  Mr Bashir of course opened the door and the cash register as instructed by you and you stood there with him in the secure area.  He removed the cash from the register and the cigarettes between the two of you and put  them in a plastic bag.  During the offending near the register the victim was threatened that he would be shot.  You then left the cashier register area, gone out of the service station and the CCTV has shown you in the station and also recorded what you said.  The armed robbery had a level of planning in the sense that you had a getaway plan in place and you carried the weapon, a screwdriver.  Your brazen behaviour extended to making next to no effort to disguise yourself when you must have known you would be filmed on CCTV again.

5When you were arrested you had the same clothes on as the day of 9 April 2014.  You were arrested and cautioned on 14 April 2014.  You were interviewed at the Sunshine Station.  You made admissions to the police about the unlawful assault.  You also made admissions about the intentionally cause serious injury charge. In respect to being asked a question about calling an ambulance for your victim Zininga you said you just "didn’t care."  You made admissions in respect to the armed robbery and on the day you say you were affected by ice and alcohol. You admitted to being the one armed with the screwdriver and that between you obtained the sum of $600.  The fact that you were under the influence of ice and alcohol does not lessen your moral culpability for these offences. 

6The victim of the armed robbery, Zaclane Bashir, swore a victim impact statement on 1 September 2014.  I referred to this, Exhibit E, earlier when dealing with your co-accused.  You clearly scared Mr Bashir on the night but he is made of strong personal courage, more than I can say for you. 

7You were taken into custody on 14 April 2014.  You were granted bail on 19 June 2014.  The result is you served 66 days pre-sentence detention in adult prison.  I was told by your counsel that it was alleged that you offended subsequently in September 2014.  You were remanded in custody on those charges on 7 October 2014.  Those subsequent charges are listed for committal case conference on 15 January 2015.  You have been in custody on the subsequent offences since 7 October 2014.

8I turn to your personal circumstances.  You celebrated your 19th birthday whilst in custody on the day immediately before your plea before me.  At the time of the offences you were 18 years old.  You had one prior court appearance for armed robbery at the Children's Court on 25 September 2013 when, without conviction, you were placed on a Youth Supervision Order for 9 months.  At the time of these offences you were still on that order. 

9As I said before, you are of Samoan descent.  Your father died when you were 5 years old.  You are the youngest of six children.  You have members from your family here to support you today.  Your mother resides in New Zealand.  In 2007 you were sent to Sydney to live with an aunty.  After two months you left there to go to Queensland to live with your older brother.  In 2011 you moved to Melbourne to live with your older brother.  Your girlfriend is now pregnant and currently in court.

10Your only work has been a month as a furniture removalist.  Your education is limited to Year 8 level.  According to your psychologist, Matthew Staos, which was Exhibit F1, you have been a poly-drug user over your short life; cannabis at 9, ice at 12, heroin at 15 and heavy alcohol intake over many years.  You need drug and alcohol treatment and rehabilitation or you will have a short and miserable life. 

11The forensic psychologist assessed that you are low average to average intelligence.  He did not find that your drug and alcohol use and abuse have left you with any reduction in cognitive abilities.  In Mr Staos's opinion you need to stay away from drugs and get yourself in gainful employment.  I agree with him.  Mr Gardner submitted that you had reached a fork in the road.  I have got to say that is an understatement.  Down one road is rehabilitation and a fruitful life.  Down the other road is prison and more prison.  Do you understand that?  Yes.

12I now turn to sentencing considerations.  The basic purpose for which the court may impose sentence is just punishment, deterrence both general and specific, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of this offending, your culpability for it and your personal circumstances and those of your victims.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests in the community in seeking to ensure as far as possible that you are rehabilitated and re-integrated into society. 

13You have pleaded guilty.  You pleaded guilty at an early stage and you have cooperated with the police.  Your plea of guilty has a utilitarian value of allowing the courts to continue their work without further interruption by you.  It also allows for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offences or offending.

14Your plea vindicates the public confidence in the legal process set up to protect the community and you have by your plea relieved your victims from giving evidence against you.  The plea also demonstrates some remorse on your part which I accept is genuine.  Your plea is clear acknowledgement by you that you accept responsibility for your criminal behaviour.  Your plea recognises you are willing to facilitate the course of justice in the community. 

15I have regard to the fact that you are a young offender and rehabilitation is an important consideration in your sentence.  I have also had regard to the principles of parity between yourself and your co-accused, Aholeley, and VF.  As I said earlier VF was sentenced to 15 months' Youth Justice Centre for offences not exactly aligned with your offending.  In addition you have been charged with an armed robbery two days after the assault charges.  The fact that you have offended whilst still on a Youth Justice Supervision Order for armed robbery is an aggravating feature of these offences.  The offending in these cases is cowardly and unprovoked.  There was rudimentary planning for the armed robbery in this case.  You had the weapon in your hand, you executed the offence in a cold and calculated manner as was shown on the CCTV footage.  The assault on Mr Zininga was chilling to watch.  You have king hit him and later whilst your victim was incapacitated you have kicked him in the head.  You have left your victim incapacitated and injured on the street like a piece of rubbish.  The principles of specific and general deterrence are important considerations in sentencing you.  The denunciation of your conduct and just punishment indicate the only appropriate sentence is incarceration.

16I have had you assessed for a Youth Justice Centre order as you know.  The assessment has come back as suitable.  You are young, having just turned 19.  I have to give weight to the prospect of rehabilitation and a concern that time in adult prison will expose you to undesirable offences which will have a detrimental effect on your rehabilitation.  Would you stand, please?

17I sentence you as follows.  On the Indictment Charges Charge 1 you are convicted and sentenced to be detained in a Youth Justice Centre for 12 months. 

18Charge 2, you are convicted and sentenced to be detained in a Youth Justice Centre for six months.

19Charge 4, you are convicted and sentenced to be detained in a Youth Justice Centre for 12 months. 

20On the Summary Charge 8 you are convicted and sentenced to be detained in a Youth Justice Centre for one month.  I order that the sentence in Charge 1 on the indictment and Charge 4 on the indictment are to be served cumulatively on one another.  The total effective sentence is two years of detention in a Youth Justice Centre. 

21I declare that you have served 75 days pre-sentence detention under s.6AAA of the Sentencing Act.  But for your plea of guilty I would have sentenced you to three years with a two year non-parole period in adult prison. 

22I make the s.464ZF forensic sample order and I also make the compensation order that was sought.

23Just in respect to both of you, the forensic sample order, the authorities can use reasonable force to obtain a forensic sample from you which is usually done by taking a swab from inside your mouth.  Do you both understand that?  Yes. 

24Is there anything else I have to deal with?

25MR GARDNER:  There were just two matters, Your Honour.  I think my learned friend and I had come to the conclusion it was 76 days rather than 75 as far as PSD.

26HIS HONOUR:  Right.  What do you say?

27MS PROSECUTOR:  Yes, Your Honour, it appears on the last occasion that the day of release wasn’t taken into account on the 66 days which was included and I think my learned friend raised that in his submission that it was 66 days, as at the plea hearing.

28HIS HONOUR:  So for Mr Fauatea it is 76 days.

29MR GARDNER: 76, yes, that's the first matter. The other matter, Your Honour, the author of the assessment for Youth Justice is in court and thankfully reminded me that given my client is remanded on the other matters it is incumbent upon the court, as I understand it, to make a s.333 of the Criminal Procedure Act Order which is the old 49 order so that he be able to take his place ‑ ‑ ‑

30HIS HONOUR:  That he be taken from this place to the Youth Justice Centre.

31MR GARDNER:  Yes.

32HIS HONOUR: Yes, certainly. That is what I intend to occur and I will make that order. So I order - under s.333 of the Criminal Procedure Act that the prisoner or detainee I think is the right term, is it not?

33MS PROSECUTOR:  Sorry, Your Honour, may I just raise one other matter?

34HIS HONOUR:  Yes.

35MS PROSECUTOR:  In relation to the PSD ‑ ‑ ‑

36HIS HONOUR:  Just hang on, I will finish this order.

37MS PROSECUTOR:  Sorry, yes, Your Honour. 

38HIS HONOUR:  That the detainee or prisoner I am calling him, Fauatea, be taken from here, that is, this court to Youth Justice Centre or into the custody of Youth Justice Centre.  Yes, thank you.

39MS PROSECUTOR:  Sorry, Your Honour.

40HIS HONOUR:  You're right.

41MS PROSECUTOR:  I understand that - I heard Your Honour to say 19 days to be declared as PSD.  I understand that the days between the plea hearing and today he's serving sentence but I might be incorrect.

42MS PROSEUCTOR:  No, Your Honour, that is correct and I was to raise that with you.  Mr Aholeley is only entitled to 10 days pre-sentence detention.  He is serving sentence ‑ ‑ ‑

43HIS HONOUR:  Right, I added the 9 days that I thought he's on for me.  Yes.  So it's 10 days.

44MS PROSECUTOR:  Yes.

45HIS HONOUR:  So the order in respect of Aholeley for pre-sentence detention is 10 days, not 19.

46MS PROSECUTOR:  If Your Honour pleases.

47HIS HONOUR:  Thanks.  Does that cover everything?

48MR GARDNER:  I believe so, Your Honour.

49COUNSEL:  Yes, Your Honour.

50HIS HONOUR: Do I have to make the same order for Mr Aholeley to be taken back to Youth Justice? For the sake of certainty I am going to. Pursuant to s.333 of the Criminal Procedure Act I order that Mr Aholeley be taken from this place to the custody or detention of Youth Justice.  Are we all clear on that?

51COUNSEL:  Yes, Your Honour.

52HIS HONOUR:  I am looking at the gentleman in uniform at the back.

53POLICE OFFICER:  Yes, Your Honour.

54HIS HONOUR:  Yes, very well.  I will hand down these signed orders. 

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