Director of Public Prosecutions v Finai

[2022] VCC 1014

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00845

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN  FINAI

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JUDGE:	HIS HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2022
DATE OF SENTENCE:	23 June 2022
CASE MAY BE CITED AS:	DPP v Finai
MEDIUM NEUTRAL CITATION:	[2022] VCC 1014

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: Pleas of guilty to one charge of being a prohibited person in possession of a firearm, one charge of conduct endangering life, 3 summary charges - driving without a licence, contravening a bail condition,  fraudulent use of a registration label – street fight led to offending -  offender produced gun and fired towards person – bullet hit fence – residential street – people nearby – above mid-range gravity – criminal history – good progress with CISP – efforts made towards rehabilitation – CCO considered but offending too serious.  

Sentence:3 years with non parole period of 2 years

s.6AAA 4 years with non parole period 3 years.

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A Peek	OPP
For the Accused	Mr J McQuillan	Leanne Warren & Associates

HIS HONOUR:

1Kevin Finai, you have pleaded guilty to two charges on an indictment being one charge of being a prohibited person in possession of a firearm, and one charge of a conduct endangering life.  You have also pleaded guilty to three summary charges, driving without a licence, contravening a bail condition and fraudulent use of a registration label.

The offending

2On 16 February 2020, you were at the Carrum Downs Shopping Centre, shortly before 8 am, having been shopping there.  You were driving a Toyota Sedan bearing false registration plates, 1KN7FR. This gives rise to
Summary Charge 17.

3At the same time, three other people were also at the shopping centre. 
Matthew Sutton and his friends, Zane Davenport and Holly Bambrook.  The three had been together the previous night at the home of Davenport and Bambrook in Cadles Road, Carrum Downs.  Sutton went to the Sands Hotel that morning and while there he had received a phone call from Davenport, telling him that he, Davenport had just been “rolled”. 

4Sutton ran to meet Bambrook and Davenport who were at the shopping centre. Davenport saw you and said you were the person who had just robbed him.  You came out of a bakery with your shopping, to the area where Sutton and Davenport were.  Both parties approached each other.  All three of you threw punches.  Sutton realised that Davenport had lied to him about you robbing him.  The fight ended after a short time, and by then you were without your shirt.

5The incident was captured on CCTV and was also observed by independent witnesses, including Mark Old.  Soon afterwards, Davenport, Sutton, and Bambrook were walking in nearby Cadles Road, heading back to Bambrook and Davenport's home.  Meanwhile, you drove away from the shopping centre.  This gives rise to Summary Charge 4, unlicenced driving.

6You pulled up on the opposite side of the road to where Sutton and the others were, near Cadles Road and Protea Street.  You got out of your car with a shotgun.  At the time you were a person prohibited from possessing a firearm and this is Charge 1 on the indictment. 

7You then pointed the gun at Sutton and fired twice. That is Charge 2, conduct endangering life. 

8One of the shots went into a nearby fence at 1 Protea Street.  You returned to your car and eventually drove away from the scene.  You had been observed by at least one witness, including Mark Old, and others heard the shots and were alarmed.  One neighbour had been about to go to church with his family, and had to quickly usher them back indoors to avoid any risk.  Police arrived at the scene and found a damaged wooden fence with numerous holes in it.

9You were arrested on 26 February 2020, living at a different address from the one to which you had been bailed.  That is the basis for Summary Charge 14, contravening a bail condition. 

10You were remanded in custody, and granted bail on 17 September 2021.  On 11 April 2022 you were arrested and charged with further offending, and your bail was revoked.  In total you have been in custody for these matters for
642 days, that calculation might be subject to change, I will wait until I hear about that later.

Gravity of the offending

11Any assessment of the gravity of this offending must begin with the clear fact that shooting a gun in a suburban street, is extremely dangerous.  In the circumstances of this case, it was a residential neighbourhood and it was daylight, early on a Sunday morning, when people were about.  One pellet penetrated the fence of a house leaving a hole, and the second pellet was not found.

12The fact that Sutton was not hit and no one was injured is somewhat beside the point.  He, or someone else could easily have been hit.  The sound of gunfire in a public area is always very alarming, and no less so on this occasion.

13In addressing the gravity of the offending, Mr McQuillan on your behalf, submitted that there was a very short period of premeditation.  The prosecution argument was that from leaving the shopping centre you had quite a long period of time to consider what you were going to do, and you proceeded to use the gun, even though the fracas was over and everyone had left the scene.That would seem to be an accurate perspective, given that you could have walked away. 

14Mr McQuillan submitted that you were quite close to Sutton when you fired the gun, and if you had been intending to shoot him, rather than just scare him, you would likely not have missed.  Mr McQuillan submitted that for these reasons the offending was at the lower to middle range of seriousness.  The prosecution view was that the circumstances placed it at the higher end of the range.  In the absence of any injury and the likelihood that you did not intend to hit Sutton, but taking into account the risks you caused, I have concluded that the offending was slightly higher than the mid range.

Personal background and circumstances

15Turning now to your personal background.  You are a single man, now aged 31.  You were 29 at the time of the offending.  You were born in New Zealand and came to Australia with your parents when you were seven.  Your parents were born in Samoa and neither they nor any of your 11 siblings have ever been in conflict with the law.

16You had a reasonably close relationship with your parents, but sadly your father died of Covid-related pneumonia, when you were on bail in late 2021.  At around that time, a number of your siblings also contracted Covid and were hospitalised, which was an added complication for the family at that time.

17Your childhood was unremarkable, except for your father's alcoholism and unfortunately, violence towards your mother and you and one of your brothers.  You were an average student but left school during Year 10.  You were employed in labouring jobs which ended when you were imprisoned.

18Your criminal history began when you were aged 19.  You were given community-based dispositions, with the record referring to alcohol as being the fuel for your offending.  In 2014 you served a sentence for the first time, following what appears to have been the second breach of a suspended sentence imposed for violence against your partner at the time.  A further conviction for violence was recorded in the Magistrates' Court in 2018 when you were sentenced to 18 months' imprisonment, with a 10 month non-parole period.

19You were assessed by the Psychologist, Mr Jeffrey Cummins, in September 2020 for a bail application which did not take place until a year later.  That report which is Exhibit 3, sets out your circumstances but does not contain any opinion as to a mental health diagnosis of any sort.  Mr Cummins, identified a problem with anger management as having existed from an early age, and dependence on a variety of drugs at the time of the offending.  Mr Cummins considered then that your risk of violent reoffending was moderate and would be reduced by treatment for anger and alcohol and drug abuse.

20At a very young age, you fathered two children to two different mothers, and you have had some continuing contact with those children. 

Mitigating factors

21There are several mitigating factors which called for some leniency.  The first is your plea of guilty, which was a late plea, but entered after negotiations brought about a much reduced indictment.

22At a time when the Covid pandemic has caused a huge backlog of trials, a plea has significant value, as it frees up time which can be spent on other cases.  The avoidance of the trial in this case can save some 8-10 days of court time, and spared witnesses from having to come to court and give evidence.  This means I must apply a discount to your sentence for the assistance to the criminal justice system which the plea brings about.  Such a plea is also accepted as an indication of remorse, by reason of your acceptance of responsibility for your criminal behaviour.

23You have now spent 642 days in pre-sentence detention with all of that time being subject to restrictions, owing to the Covid pandemic.  Visits have been cancelled or reduced and the availability of programs and courses has been limited.  Prisoners have had to spend time in their cells, in a lockdown situation, and some of those restrictions still apply and will continue to do so.  Nonetheless, at times when ”lockdown” did not apply, you have been able to work in your job in the prison gym.  The hardships imposed by these conditions are also taken into account in sentencing.

24One of the more positive features of your efforts towards your rehabilitation has been your commitment to CISP.  You undertook this program between
16 September 2021 and  4 April 2022, and several reports were provided confirming that you initially attended regular appointments until a stressful time in October 2021.  You, yourself suffered from pneumonia, and as I said earlier, your father and other family members became ill with COVID-19.

25At the same time you had great difficulty paying for drug screens as well as counselling.  Some financial assistance was made available through CISP and eventually your bail was varied to reduce the need for drugs screens to one per month.  You had considered having your bail revoked with the hope that  your return to prison would reduce the financial burden on your family.

26Sadly, as I said before, your father died on 6 November, and although you were able to visit him before he died, he was in a coma and was unresponsive.  Your case manager Ms Puglisi, was impressed by your engagement with CISP at this time, as you maintained contact with the professionals, despite the grief that you were suffering.

27In early 2022, you reported to CISP that you had relapsed into drug use soon after your father's death, at a time when you were adjusting to this, and were concerned to protect your mother from being expected to look after her large family. 

28Upon your release, you will have the support of that large family and a stable residence.  You are now 31 years old, an age when male offenders often reach sufficient maturity to be motivated to change, and many do achieve this.

29You are facing further matters in the Magistrates' Court, with a contested hearing listed for August and a mention date, I'm told, towards the end of this month.  Those charges involve an affray and the ramming of a police car also involving Sutton, and they led to your arrest on 11 April 2022, resulting in the revocation of your bail on 13 April. 

30Your counsel submitted that a combination imprisonment and Community Correction Order disposition would be appropriate, or, alternatively, if a
non-parole period were to be imposed, that this should allow for a long period on parole in order for you to continue with the rehabilitation progress you made earlier with CISP.

31From the reports, it appears that you did engage well for several months with only one  lapse into drug use at around the time of your father's death as I just mentioned a moment ago.  You earned considerable respect from your case manager and others involved.

32The prosecution's submission was that the offending, an extreme response to a short fight, placing people in danger, warrants a prison sentence with a
non-parole period.  I note that the maximum sentence for being a prohibited person possessing a firearm and for conduct endangering life is 10 years' imprisonment.  For unlicenced driving the maximum penalty is six months.  For contravening a condition of bail, three months, and for fraudulently using a registration label, two months.

33The need for general deterrence is perhaps obvious from the nature of the offending, involving street violence of a potentially very serious type.  Specific deterrence is also a relevant consideration given your criminal history, the links between your offending and drug use, and perhaps a lack of pro-social influences in your life.

34Although you have been assessed as suitable for a Community Correction Order, after giving the matter very careful consideration, I have conclude that the offending was too serious to permit a combination sentence.

35So, Mr Finai, I sentence you to the following terms of imprisonment.

36For Charge 1, two years.

37For Charge 2, two years.

38For Summary Charge 4, three months.

39For Summary Charges 14 and 17, one month for each charge.

40The sentence for Charge 2, is the base sentence for purposes of cumulation.  I order that 10 months of the sentence for Charge 1, and two months of the sentence for Summary Charge 4, are served in cumulation upon the base sentence.  This results in a total effective sentence of three years.  I order that you serve a minimum period of two years.

41If you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment, with a non-parole period of three years.

42The Prosecution seeks an order for forfeiture in relation to the firearm and related items and Mr McQuillan is there consent or no opposition to that?

43MR McQUILLAN:  No opposition, Your Honour.

44HER HONOUR:  All right, I make that order, thank you.  Now, the calculation of the pre-sentence detention, is that 642 days?

45MR McQUILLAN:  I agree with that Your Honour, yes.

46HER HONOUR:  You agree, Ms Peek?

47MS PEEK:  We haven't calculated it.

48HER HONOUR:  You haven't done that, all right.

49MS PEEK:  But  we can trust Mr McQuillan's assessment.

50MR McQUILLAN:  Yes, I just did, Your Honour.

51HER HONOUR:  I will use 642 days, and I'll mark that on the court record to be reckoned as already served in the usual way.  If the prosecution comes up with another figure in the next hour or so, let us know please?

52MS PEEK:  Yes, we will let Your Honour know.

53HER HONOUR:  Now, Mr McQuillan, are there any other matters?

54MR McQUILLAN:  No, Your Honour, we're just doing the maths, but I agree with the total effective sentence, thank you, Your Honour.

55HER HONOUR:  All right, yes.  He's probably done about one year, nine months I calculated roughly.

56MR McQUILLAN:  I think he's up to about 20 months.

57HER HONOUR:  That's roughly right. Yes and so he's got time now to apply for parole.

58MR McQUILLAN:  Yes.  Thank you, Your Honour.

59HER HONOUR:  All right.  Anything further?

60MS PEEK:  No, Your Honour.

61HER HONOUR:  Thank you.

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