Director of Public Prosecutions v Feagaimalii

[2021] VCC 1246

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

AT MELBOURNE

CRIMINAL DIVISION

CR-21-00595

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

SALELE FEAGAIMALII

JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2021
DATE OF SENTENCE:	30 August 2021
CASE MAY BE CITED AS:	DPP v FEAGAIMALII
MEDIUM NEUTRAL CITATION:	[2021] VCC 1246

REASONS FOR SENTENCE

Catchwords: Sentence – One charge of Attempted Armed Robbery. Commit Indictable Offence Whilst on Bail. Armed with Knife. Spontaneous and Opportunistic. Community Corrections Order. Good Rehabilitation Prospects. 19-Year-Old Offender. No Priors.

Legislation: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Confiscation Act 1997 (Vic); Sentencing Act 1991 (Vic)

Cases: R v Mills (1998) 4 VR 235; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire	Office of Public Prosecutions
For the Accused	Ms N. Low	Victoria Legal Aid

HIS HONOUR:

Introduction

1       Salele Feagaimalii, you have pleaded guilty to an indictment containing a single charge of attempted armed robbery, contrary to s 75A and s 321M Crimes Act1958.  This offence carries a maximum penalty of 20 years' imprisonment.

2 You have also consented to this court hearing and have pleaded guilty to a summary charge of committing an indictable offence whilst on bail, contrary to s 30B Bail Act1977. This offence carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.

3       The circumstances of your offending are set out in the amended summary of prosecution opening dated 20 August 2021.[1]  Ms Low indicated that the opening was an agreed document.  I will set out the facts of your offending briefly.

Offending

[1] Exhibit A.

4       At the time of the offending, you were aged 18, having been born on the 29 January 2002. Your victim, Sukirat Sarao, was aged 19 and worked as a delivery driver for Uber Eats. You and the victim were not known to each other.

5       At about 10:26pm, Mr Sarao parked his electric bicycle outside McDonald’s in Southbank and went inside the restaurant to collect an order for delivery. At 10:28pm you approached Mr Sarao’s bicycle and rolled it forward and kicked up the kickstand. Mr Sarao saw you touching his bicycle and left McDonald’s to confront you. As Mr Sarao approached you, you reached into your right trouser pocket and produced a knife approximately 20cm in length. You pointed the knife at Mr Sarao and said, ‘I will stab you and slash your head.  Either step back and I will take your bike or I will slash you.’

6       Mr Sarao retreated inside McDonald’s and you followed him.  You stood at the door of the restaurant and shouted at him, pointing the knife towards him.  You then returned to the bicycle taking hold of it and moving it away. Mr Sarao returned to just outside the door of McDonald’s. You produced the knife again.  Mr Sarao said, ‘Please don’t take my bike.’ You responded by saying, ‘You pussy, you come and take it back.’ You then put the bicycle on the ground and rushed towards Mr Sarao, throwing a Red Bull can against the window of McDonald’s. Mr Sarao, again, retreated inside McDonald’s, and you followed him inside, pointing the knife towards him. You then returned to the bicycle and continued to yell at Mr Sarao. Once again, you walked back into McDonald’s, yelling at Mr Sarao. You then walked back to the bicycle picked it up and began to walk away. On two further occasions, Mr Sarao pursued you and retreated into McDonald’s when you started walking towards him and gesturing at him with a knife in a threatening manner. The incident was captured on CCTV which I have viewed.[2]

Arrest and interview

[2] Exhibit B.

7       Police on duty were informed of the incident by a member of the public who had witnessed it. Officers arrived outside McDonald’s at approximately 10:34pm to find you yelling and waving the knife at Mr Sarao. The police flashed a torch in your direction, and you dropped the knife on the ground. You were arrested.  The knife that you dropped was seized along with a second kitchen knife and a pair of scissors found in your backpack. The bicycle was returned to Mr Sarao undamaged. You were taken to the Melbourne West police station. You were deemed unfit for interview. At the time of the attempted armed robbery, you were subject to two sets of bail. (Summary charge of committing an indictable offence whilst on bail)

8       You remained in custody for three days. Bail was granted on the 17 December 2020. As part of your bail conditions, you were placed on the Youth Supervised Bail Program.

Victim impact

9       Mr Sarao has not made a victim impact statement. However, one can easily infer that the experience he endured would have been frightening. In fact, Mr Sarao says in his police statement, ‘What the male did made me fear and I felt very threatened at the time’.

Personal circumstances

10      Mr Feagaimalii, you are now 19 years old and have no prior matters recorded against you. You are one of six siblings to parents who originate from Samoa.  You were born in Australia and grew up in Bayswater. Your parents separated when you were around the age of 16. Following their separation, you lived with your mother in Boronia along with four of your siblings. Your mother has remained single and works full-time. Plainly, the offending has upset your mother, but she remains fully supportive of you. Your father continues to live in Bayswater, and you see him once every two to three months. You completed Year 10 at a college in Wantirna. Due to issues with truancy and misbehaviour, you were asked to leave college at the end of the first term of Year 11 in 2019.

11      Unfortunately, you have had issues with alcohol and drugs. You began binge drinking at the age of 15. From the age of 16, you began using illicit substances, including cannabis, MDMA, cocaine, and LSD. You would regularly mix drug use with alcohol.

12      I am told that at the time of the offending you were under the influence of alcohol and drugs. You had attended an end-of-year trip with friends to Phillip Island.  During the week in Philip Island, you drank to excess as well as taking drugs, including Xanax and cocaine. As a result of being arrested for an unrelated matter on 12 December 2020, you were separated from your friends. Having arrived back in Melbourne, you wandered around the CBD streets in a state of intoxication from drugs and alcohol. Upon your arrest, I note you were deemed to be unfit for interview. Mr Feagaimalii, your state of intoxication may explain your out-of-character offending, however, it does not excuse what you did.

13      In terms of employment, having left college you worked for a period of six months with a family friend installing fences. You were unable to continue with that employment as the business suffered financially due to the pandemic.  Recently, you have obtained casual employment delivering kitchen appliances to homes. You have been working up to four days a week. That employment is ongoing with reduced hours during this current lockdown. You intend to undertake an apprenticeship in bricklaying.

Gravity of the offending

14      The court must also have regard to the objective gravity of the offending for which you now fall to be sentenced.

15      Attempted armed robbery is an inherently serious offence. This is clearly demonstrated by the maximum penalty fixed by Parliament, namely 20 years' imprisonment.

16      The offending was committed against a young man who was a soft target, going about his employment as an Uber Eats delivery person. The offending lasted several minutes with verbal threats as well as threats gestured with the knife towards the victim. As a result of your threats, the victim had to retreat into McDonald's on a number of occasions. I accept that the offending was out of character and unsophisticated. It was spontaneous and opportunistic. Due to your state of intoxication, you have little recollection of what you did.

Matters in mitigation

17      I was assisted by detailed written submissions by Ms Low and Ms McGuire. I am grateful for those submissions. I take into account a number of matters raised in mitigation.

18      I accept that your plea of guilty was entered at the earliest opportunity and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and cost of a trial and has spared the victim from having to give evidence. Your plea has facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in the current COVID-19 environment when the court is facing an increased backlog of trials.[3] I also accept that your plea of guilty is demonstrative of genuine remorse.

[3]  See Worboyes v The Queen [2021] VSCA 169, [35] – [39].

19      You have expressed your remorse to Ms Cidoni. I understand that upon seeing the CCTV footage, you were shocked and ashamed by your behaviour. I hope that you learn from the shock and shame you have experienced and the disappointment you have caused to your mother.

20      You were 18 years of age at the time of the offending. You are now 19. You have no prior convictions or findings of guilt. Bearing in mind your youth and lack of involvement with the criminal justice system, I regard your rehabilitation as an important sentencing objective. I take account of the sentencing propositions in R v Mills (1998) 4 VR 235.

21      Since 17 December 2020 you have been subject to the Youth Justice Supervised Bail Program.  I have had regard to the two supervised bail progress reports dated 9 March 2021 and 17 August 2021 prepared by Ms Caitlyn Tessier.[4] You have attended some 43 supervision appointments. The focus has been on education, employment, substance use, and offending. The reports indicate that you have developed insight into your offending taking responsibility for your behaviour. You have shown a desire to make positive changes to your life. You have not abused any illicit substances since being granted bail and now only drink alcohol occasionally. Your mother has been instrumental in ensuring your compliance with bail. You continue to reside with her in a stable and supportive environment. You are currently employed.

[4]  Exhibit 3.

22      I have also had regard to Ms Cidoni’s report. She states that you have no obvious cognitive problems, you are free from any personality disorder and clinical syndromes. As a result of your current predicament, you have presented as mildly depressed.

23      I am encouraged by your progress and it is important that you maintain it. I regard your prospects of rehabilitation as being good.

24      General deterrence and denunciation are important sentencing considerations in this case. An attempted armed robbery is an offence that strikes fear into the minds of those upon whom it is perpetrated and is a cause of concern for the community generally. However, in the circumstances of this case, your successful rehabilitation is clearly in the interests of the community and must be given greater prominence.

25      In my judgement, all sentencing purposes can be met by the imposition of a community correction order. I take into account the guidance in Boulton v The Queen (2014) 46 VR 308. Both Ms Low and Ms Maguire agree that such a sentencing disposition is open.

Sentencing

26      Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Feagaimalii, as follows:

27      On Charge 1, attempted armed robbery, you will be convicted and sentenced to a community correction order for a period of 2 years commencing today.

28      On the summary charge of commit an indictable offence whilst on bail, you will be convicted and discharged.

29      Every community correction order has core conditions that you must comply with. They are as follows:

30      You must not commit any offence punishable by imprisonment.

31      You must comply with any obligation or requirement prescribed by the regulations.

32      You must report to and receive visits from the Secretary.

33      You must report to the community corrections centre within two clear working days.

34      You must notify the Secretary of any change of address or employment within two clear working days of the change.

35      You must not leave Victoria except with the permission of the Secretary.

36      And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

37      In addition to the mandatory core conditions, the community correction order will also include the following special conditions:

38      First, you will have to perform 90 hours of unpaid community work as directed.

39      Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

40      Third, you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.

41      Fourth, you will be subject to supervision as directed for the duration of the community correction order.

42      Fifth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place at 9.30 am on Wednesday 8 December 2021.

43 Pursuant to s 48CA(2) of the Sentencing Act 1991, I order that 50 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

44      You must report to Ringwood Justice Service Centre by telephone within two working days from today.

45      Mr Feagaimalii, you need to understand that if you were to breach the community correction order in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.

46      The offence of breaching a community correction order itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence.  In those circumstances, you could also be resentenced for the offence for which you were placed on the original order, namely the attempted armed robbery.  You would then face the possibility of being sent to custody.

47      There are serious consequences attached to any breach. Do you understand that Mr Feagaimalii?

48      OFFENDER:  Yes, Your Honour.

49      HIS HONOUR:  Do you also understand all of the conditions of the proposed community correction order?

50      OFFENDER:  Ah yes, Your Honour. I just - I've just got a question, Your Honour.  Um will I ah get like a - like a piece of paper with the um conditions on it or - - -

51      HIS HONOUR:  Yes. Yes. That will be provided to your lawyers and will be forwarded onto you. Yes.

52      OFFENDER:  Okay.  Thank you, Your Honour.

53      HIS HONOUR:  I need to now ask you; do you consent to being placed on a community correction order in the terms I have outlined and to abide by all of its conditions?

54      OFFENDER:  Yes, Your Honour.

55      HIS HONOUR:  Thank you. Your verbal consent will be noted on the court record and is sufficient in circumstances such as this where you are appearing by way of a video link.

Section 6AAA declaration

56 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had Mr Feagaimalii pleaded not guilty and had been found guilty of the attempted armed robbery, he would have been sentenced to 12 months' custody in a Youth Justice Centre.

Disposal order

57 Pursuant to s 78(1) of the Confiscation Act 1997, I grant the disposal order sought in relation to the two knives and scissors.

58      Ms Maguire, does that cover everything?

59      MS MAGUIRE:  It does, Your Honour. As the court pleases.

60      HIS HONOUR:  Thank you. Anything arising, Ms Low?

61      MS LOW:  No, Your Honour. As the court pleases.

62      HIS HONOUR: Ms Low, would you like an opportunity to speak to Mr Feagaimalii?

63      MS LOW:  No, that is all right. I will call him later on.

64      HIS HONOUR:  All right. Thank you.

65      Yes, can you adjourn the court till tomorrow morning at 10.30?

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