Director of Public Prosecutions v Fonua
[2018] VCC 897
•14 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-02036
CR-17-02035
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN OLIVER FONUA AND BENJAMIN MARK HOLLAND |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2018 | |
DATE OF SENTENCE: | 14 June 2018 | |
CASE MAY BE CITED AS: | DPP v Fonua & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 897 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – co-accused – false imprisonment – common assault – armed robbery – principle of parity – jail terms imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused Fonua | Mr P Bloemen | Emma Turnbull Lawyers |
| For the Accused Holland | Mr B O’Sullivan | Ann Valos Criminal Law |
HER HONOUR:
1 John Oliver Fonua, you have pleaded guilty before me to one charge of false imprisonment, one charge of common assault, one charge of armed robbery and one charge of possessing an imitation firearm whilst prohibited.
2 Benjamin Mark Holland, you have pleaded guilty to one charge of false imprisonment, one charge of common assault and one charge of armed robbery.
3 Each of the charges are serious. That is reflected in the maximum penalties prescribed by Parliament, and they are 25 years’ imprisonment in respect to armed robbery, 10 years’ imprisonment in respect to false imprisonment, five years’ imprisonment in respect to common assault, and 1200 penalty units or imprisonment for 10 years in respect to possession of an imitation firearm whilst prohibited.
4
The offending arises out of a series of events that occurred over a period of several hours commencing on 14 September 2016 and finishing on
15 September 2016, that involved the victim, Peter John Kearney.
5 You have both admitted your prior criminal histories.
6 John Fonua, you have a criminal record that spans the period from 26 June 2008 until 10 July 2015. There are eight court appearances and convictions that are of relevance. You have a prior criminal history in respect to dishonesty offences, offences of violence against a person and some firearms offences. This is the first occasion that you have been charged with armed robbery and false imprisonment.
7 Benjamin Mark Holland, your criminal history spans the period from 14 July 2005 until 18 December 2015. You have some 17 previous court appearances and, of relevance, you have prior criminal convictions including for crimes of violence against a person. This is also the first occasion you have been charged with false imprisonment and armed robbery.
8 An aggravating feature in respect to both of you is that you were both undergoing Community Correction Orders at the time of this offending, and this offending therefore constitutes a contravention of your orders.
9 Benjamin Holland, you have already been dealt with in respect to the contravention of your Community Correction Order. At the Sunshine Magistrates’ Court on 14 September 2017 you received a seven-month term of imprisonment was imposed with two days’ pre-sentence detention declared. You appealed against that sentence but the appeal was dismissed. Your sentence lapsed on 6 March 2018. It is necessary for me to have regard to the time spent in custody in respect to that matter pursuant to the totality principle.
10 John Fonua, your contravention of the Community Correction Order has been listed before His Honour Judge Gucciardo on 22 June 2018.
11 I shall now proceed to sentence you both in respect to the indictment and I will sentence you on the basis of the Crown opening that was read to the plea hearing, and is marked as an exhibit, namely Exhibit 1.
12 A third person who was also involved in this offending, namely, Bronwyn Holland, has been previously sentenced by the Court on 6 September 2017.
13 Ms Holland pleaded guilty to one charge of handling stolen goods, one charge of theft, one charge of false imprisonment, one charge of causing injury intentionally and one charge of armed robbery.
14 The charges of handling stolen goods and theft related to Ms Holland driving the victim’s stolen vehicle, and obtaining petrol and not paying for it. The charges of false imprisonment, causing injury intentionally and armed robbery all relate to the same criminal offending for which you are both to be dealt with by this Court.
15 The sentence imposed upon her is relevant, and it is necessary for me to have to have regard to the principle of parity when formulating your sentences.
16 Ms Holland had a lengthy criminal history which spanned a period from 8 April 2008 until 10 April 2015. She, too, had relevant convictions for offences of violence against a person and dishonesty offending.
17
Ms Holland pleaded guilty at an early stage prior to the committal hearing on
11 May 2017 and before any witnesses were called. In contrast, both of you contested the matter at committal hearing during which Mr Kearney, the victim, was called and cross-examined.
18 You both entered pleas of guilty on the first day that was listed for the trial of this matter that was due to be conducted before his Honour Judge Lacava commencing on 16 April 2018.
19 Ms Holland received a discount on her sentence for her plea of guilty entered at an early stage. She was entitled to and received a greater discount on sentence than you both are entitled to having regard to the late stage at which you entered your pleas of guilty. She did not seek to rely on any Verdins principles, but the Court did have regard to her disadvantaged background and traumatic childhood, and the applicability of the Bugmy principles.
20 The victim, Peter Kearney, was known to you, Benjamin Holland, and your sister, Bronwyn Holland. He was your casual friend with whom you had socialised previously. The victim knew that Bronwyn was your sister.
21
Earlier, the victim had purchased the drug “Ice” from a known associate of you all, whose name was Amanda Schembri, also known as “Pinky”. On
13 September 2016, the victim had agreed to return to Ms Schembri about $50 worth of the drug ice to Ms Schembri on the understanding that she would repay him the money the following day.
22 Arrangements were made to meet at the Wyndham Vale shopping centre so that Schembri could repay her debt. When she did not appear at the agreed rendezvous, he then, the victim that is, decided to drive to the house where he had dropped her the previous evening. The house was rented by you, Mr Fonua.
23 Present at the house on that occasion were both Bronwyn and Benjamin Holland and you, Mr Fonua, and others.
24 As the victim walked into the driveway of the home, Mr Fonua, you said to him “Are you right, bro?”
25 The victim explained to you why he was there, and you informed him that you did not know whether or not Ms Schembri was home. You both then walked into the house together. On entering, the victim recognised Benjamin Holland and Bronwyn Holland were also present at that time.
26
Mr Fonua, you took Mr Kearney to the rear of the house and contacted
Ms Schembri by phone. In the meantime, you gave him a can of Jack Daniels. After getting in touch with Ms Schembri, Mr Fonua, you handed the telephone back to Mr Kearney, who made other arrangements to meet with Ms Schembri.
27 As Mr Kearney was walking towards the front door to leave the property, he shook your hand, Mr Fonua, to thank you for the can. As Mr Kearney reached the front door, both you, Benjamin Holland, together with your sister, Bronwyn, started laughing, and as he tried to open the door, he was unable to do so because it had been deadlocked.
28 Bronwyn then got off the couch and said to him “Do you know who the fuck I am? I am Bronwyn.” Benjamin Holland, you then also got off the couch and started to walk towards Mr Kearney. Bronwyn then said to Mr Kearney “You are not going nowhere”. He responded by saying “What the fuck is going on?”
29
Mr Kearney was then hit by Bronwyn Holland with her right fist to his nose, causing him to put his arms over his face. He was then hit three or four times in the arms which he put up to protect himself. He received a massive kick in the stomach, which threw him backwards into a cupboard behind him, following which he dropped to the ground and curled up in a ball to protect himself.
Mr Kearney said that he could feel both you, Benjamin Holland, and your sister, Bronwyn, thumping on his head eight or ten times. (Charge 2, common assault)
30 Mr Fonua, you then entered the room and asked “What the fuck is going on? This is my house”, following which the attack stopped.
31
Mr Kearney did not take away his arms from his face but could see that you,
Mr Fonua, were standing next to him with what he thought to be a silver-coloured handgun that was pointed at the side of his head.
32 Mr Fonua, you then told Mr Kearney to get up a few times. He eventually got onto a seat, during which time his car keys were taken from him. He was then taken to a rear room at the property. (Commencement of Charge 2, false imprisonment).
33 After about an hour, you, Mr Fonua, returned, taking Mr Kearney back to the kitchen area. At this time, you, Benjamin Holland, were sitting on the couch holding the gun, and Bronwyn Holland was standing at the kitchen bench with vehicle some transfer papers which she filled in the details of, together with a blank piece of paper.
34 Mr Kearney was then forced to sign the transfer papers and a blank piece of paper at gunpoint. (Charge 3, armed robbery).
35 After Mr Kearney had signed the transfer papers, you, Benjamin Holland, retrieved a blow torch that was nearby, which you lit and held it to Mr Kearney’s face, threatening that you would burn him and kill his family if he were to dog ─ that is, tell the police what happened.
36 Benjamin Holland, you continued to walk around the home with the gun in your hand, tormenting the victim.
37
Mr Fonua then quickly started packing a sports bag. Mr Kearney was then asked to stand by you. Benjamin Holland, you then held the gun to
Mr Kearney’s face. Mr Kearney was told to put a pillowcase over his head so he could not see where he was going. Mr Kearney did so, and then was asked if he could see anything by you, Mr Fonua, to which he responded he could not.
38 Mr Kearney was then king hit by you, Mr Fonua, and the force of that punch caused him to be thrown about 2 metres, hitting his head on the tiles. (Charge 4, common assault) The punch was recorded on your phone, Mr Fonua, which was subsequently seized and that material has been viewed by the Court.
39 Mr Fonua, you then put the gun to Mr Kearney’s head and said, “Get the fuck up, we’re going for a drive”, and by this stage, Mr Kearney had been falsely imprisoned for several hours.
40 Bronwyn Holland then helped Mr Kearney off the floor and walked him to the car that was parked in the driveway. His head and face were still covered and he was taken to a place near Geelong, where he was released between 5‑5.30am. (Cessation of Charge 1, false imprisonment)
41 When he arrived home, Mr Kearney told his partner what had happened, following which police were contacted.
42 Statements were taken from the victim and thereafter you were both arrested on 20 September 2016.
43 Mr Fonua, you were arrested driving a vehicle. Police searched that vehicle and located an imitation firearm. (Charge 5, possessing an imitation firearm whilst prohibited) You were interviewed, but made denials concerning these charges.
44 Benjamin Holland, you too made denials when interviewed.
45 You have both been remanded in custody since that date.
46 Mr Kearney was provided with an opportunity to complete a victim impact statement in relation to the incident, however has not done so. Nonetheless, having regard to the circumstances, as described as set out in the prosecution opening, I consider that these events involving his false imprisonment over several hours would have been terrifying for him. He also suffered humiliation and physical attacks that I have described. He would have been in real fear as to what was happening to him as a consequence of the collective actions of the three of you.
47 In his statement taken 23 September 2016 he states that after the event he was not sleeping well and had suffered physical injury. His face was swollen and he thought that something had been broken. He was going to attend a doctor for treatment.
48 I consider this to be a serious example of the crimes of false imprisonment, armed robbery and common assault and that your actions are deserving of stern punishment.
49 There is a real need for the Court to emphasise both general and specific deterrence in the sentence and also to provide for the protection of the community. Your collective actions must be condemned.
50 I accept that Ms Bronwyn Holland was the person who was responsible for instigating the initial attack on Mr Kearney. She locked the front door that prevented him from leaving the house. However, each of you played a significant role in the offending which subsequently transpired and continued on over several hours. You were both responsible in the latter part of the offending for increasing the seriousness of the offending through the infliction of violence and the way in which you behaved as described in the prosecution opening.
51 I have had regard to your personal histories and circumstances.
52 John Fonua, the context to the offending was that you had been drinking heavily and using methamphetamines, GBH and heroin. You had only recently been released from custody. You had been assessed for treatment for your drug problem but had not commenced any drug counselling or treatment. You were awaiting a Disability Forensic Assessment and Treatment Service Plan. It is an aggravating feature that this serious offending was committed during the currency of the Community Correction Order that had been imposed following the imposition of a gaol term.
53 The offending occurred at the premises where you were then living. You acknowledge that this series of events developed and that you did not really know the victim, Mr Kearney.
54 Your behaviour appeared cordial at first and there is really no explanation as to why it was that it escalated into such serious violent offending. You now regret your involvement in this offending.
55 You were born in Australia to parents of Tongan descent. Your parents separated when you were a young boy aged about nine. You are the fifth of six children. Your mother was subjected to domestic violence inflicted upon her by your father. You would often witness the violence and also you, too, were subjected to violence yourself at the hands of your father.
56 Your life has been very disrupted. At age 11, you were living on the streets and you have also spent some extended periods living away from your mother, at times living with your father and an uncle in Broadford. You were sexually abused by a 16 year old girl when you were only seven. You commenced living in accommodation with a girlfriend when you were only around 14 years of age. You went on to have five children together with your partner. Those five children are now being cared for by your mother, their mother having abandoned them. She has not seen the children for some seven years.
57 Your children range in age from 8 to 13 years. You are very proud of your children and wish to maintain contact with them.
58 You continue to have occasional contact with your father.
59 You have had limited educational opportunities. You were expelled from school with a Year 10 pass. You have particular problems with literacy and numeracy.
60 You have been in receipt of a disability support pension for an epileptic condition. You have a history of cardiac problems as well as thyroid issues. You have had a very poor work history.
61 In the past you have been variously diagnosed with ADHD, bipolar disorder and schizophrenia. You have had multiple blows to the head with probable concussive episodes and a possible fracture of the skull as a result of childhood assaults and sporting and other injuries. You report that you have been shot on three occasions.
62 You have a history of poly-substance abuse that relates back to your early childhood. You started smoking cannabis and consuming alcohol regularly as a teenager. You progressed to amphetamines, methylamphetamine, cocaine and GHB.
63 Mr Ian McKinnon, consultant psychologist, provided a report dated 2 June 2018 following his assessment by you on 4 May 2018. He diagnosed Poly-Substance Abuse Disorder in remission and Attention Deficit Hyperactivity Disorder (“ADHD”). He considers your functional intelligence was within the normal adult range and your general cognitive functioning is within the normal adult range. He considers your ADHD probably had its origins in developmental trauma including the extreme physical and emotional abuse you suffered throughout your childhood as a result of your father’s violence. He says that you present with a sense of identity and self-esteem that has been built very much around being regarded as a tough guy who can “go off unpredictably with serious consequences for others around him.”
64 He noted, on the other hand, that you do have a side to your character that desires a stable and peaceful existence, one that would see you working and being closely involved with your childrens’ lives as a concerned and loving father. He considered you presented as being quite sincere in your stated intention to abstain from drugs and avoid negative associates and resume employment in the future. There is the opportunity for you to work in the family construction company upon your eventual release.
65 You expressed significant remorse to him for this offending and acknowledged that there was no good justification for it. You now believe that you were manipulated and used whilst you were intoxicated and sleep deprived into getting involved in the conflict by the other persons who were present on that night who had a previous history of conflict with the victim. He says that you appear to understand the ordinary meaning of right and wrong.
66 This expressed opinion is consistent with the letter provided to the Court from Jacqueline Pidoto, a family friend who has known you for some 18 years. She has maintained personal contact with you via telephone and also prison visits. She states that you now realise your law breaking behaviour affects you in a negative way and has impacted upon not only yourself but also your mother and five children. She states you have expressed regret for your actions to her and a general desire to break the cycle of offending on gaol. She and her family will continue to support you on your release.
67 Mr McKinnon's opinion is that your long-standing poly-substance abuse disorder and ADHD probably made a significant contribution to your offending by degrading your ability to reason and make sound judgment which increased your impulsivity and lowered your powers of consequential thinking and your tolerance threshold, distorting your perception of what was happening and encouraging a self-absorbed perspective that lacked appropriate empathy and concern for the victim or the wider community.
68 On this basis your counsel sought to rely upon the Verdins principles so that the Court should therefore moderate the need for general and specific deterrence.
69 Whilst I consider that there is no doubt that your dysfunctional and disrupted childhood and abuse at the hands of your father and chaotic and dysfunctional lifestyle has contributed to your personality generally, it is in my view that this is not a case where the Verdins principles ought be enlivened.
70 I have, however, taken into account in a general sense, that your background has contributed to your impulsive behaviour and emotional immaturity and limited insight which has led to poor judgment and criminal offending and abuse of drugs. I have had regard to the applicability of the Bugmy principles.
71 It is of importance that the correctional authorities have particular regard to the recommendations made by Mr McKinnon and also the recommendations made in the past by Associate Professor Brewer in his report of 30 June 2015 and the older report of Dr Vowels, neuro-psychologist who conducted an assessment of you in 2010. It is necessary to provide for your supported transition back into the community to optimise your future rehabilitation prospects.
72 I am somewhat guarded about your rehabilitation prospects currently. You do have difficulty in coping with the freedom of life outside prison. You have particular complex needs.
73 In sentencing you, I must impose just punishment. Because the offending involves a series of offences that occurred at the same time, there will be some cumulation to reflect the different criminality.
74 I have had regard to the plea of guilty. Notwithstanding the late stage it was entered, it is still one of real utility and a sentencing discount will be applied. Through your plea you have facilitated justice.
75 Benjamin Mark Holland, you were aged 30 at the time of the offending. You are now 31. Your mother is deceased. She too experienced domestic violence at the hands of your father and you too were the victim of domestic assaults by your father.
76 You are one of three children, including your sister, Bronwyn. Your other sister, Jodie, is now deceased.
77 You grew up in the Werribee area. You were diagnosed with ADHD at primary school. You completed Year 11 at Werribee Secondary College. You have had a sporadic work history involving labouring, plastering, warehouse work, demolition and container maintenance. You are a self-taught motor mechanic.
78 You have had a long term history of alcohol and drug abuse. You began drinking at age 12 and commenced methamphetamine use at about age twenty-four. Following the death of your mother in 2007, your alcohol consumption escalated.
79 I have had regard to the report from Dr Linda Borg who completed a neuropsychological assessment. Her report dated 21 May 2018 confirms that you demonstrate borderline to low-average intellectual functioning, which is developmental in nature, as well as having symptoms associated with ADHD. She considers the condition was present at the time of the offending and is permanent. She also noted you also suffer with depression.
80 She considers you have a moderate to severe degree of cognitive impairment, secondary to your developmental disorder and ADHD. She recommends drug and alcohol counselling.
81 She considers that you demonstrate some difficulties in monitoring and regulating behaviour. You do have an understanding of right and wrong but you have difficulty with independently planning or working your way through problems in a systematic fashion. You have difficulty reasoning and weighing the consequences of your actions, which is compounded by reduced insight, limiting your ability to consider the long term consequences when you are “in the moment”. Your ability to make calm, reasoned and informed choices is moderately compromised.
82 She said that your condition did not cause the offending behaviour. However, she states it may have potentially been a contributing factor. Your level of cognitive function suggests that you are more likely to refer to well-established and likely maladaptive patterns of behaviour in situations of stress or high emotional arousal, which may then be further exacerbated if under the influence of substances including alcohol and methamphetamine.
83 She recommends forensic psychiatric review to address the impact of imprisonment on your mental health.
84 She did not think that you could adequately express insight into the impact of the offending on the victim. However, you could identify that it was wrong. You regretted the escalation that occurred.
85 Ms Borg makes recommendations in relation to supporting you in the community so as to assist you to be more law abiding. Her report will be provided to the parole authorities to assist them with your effective transitioning back into the community.
86 Ms Carla Lechner, clinical psychologist, provided a report dated 28 May 2018. She confirmed you present with symptoms of alcohol and stimulant use disorder, currently in remission whilst in gaol, and that you also fulfil a diagnosis of major depression.
87 She recommends intensive case management for the future. She confirms your cognitive functioning is in the borderline range. She says that you need intensive support upon your release, otherwise you run the risk of further offending and the risk of becoming institutionalised.
88 She noted that you acknowledge your role in the offending and express some remorse for your actions, although from your egocentric perspective you also view the victim as bringing it on himself on account of past behaviour. Your offending occurred in a context of loyalty to your sister and impaired judgment and decision making due to substance intoxication.
89 Mr O’Sullivan, on your behalf, explained to the Court that, in the past, whilst your sister was in prison, some friends had been using her home. It was asserted that those friends had a dispute about a drug debt with Mr Kearney and, as a consequence, he burnt one of the rooms, and as a result of which your sister lost precious pictures of your late mother that were highly personal and valuable. Ms Holland therefore had a grievance with the victim and this offending was in relation to dealing with her grievance against Mr Kearney.
90 Mr Holland, notwithstanding that explanation, your actions on this occasion were out of all proportion to any perceived grievance that you or your sister may have had with the victim. That explanation offered does not in any way excuse your behaviour. I consider that you were aware of what you did was wrong and you will be dealt with accordingly.
91 I note that you do have borderline to impaired range of intellectual functioning and documented deficits in cognitive functioning. In your case I have moderated the need for general deterrence and specific deterrence to a very modest degree.
92 Having regard to the lengthy period of time that elapsed during this offending, I consider that you would have known what you were doing was wrong and also I have had regard to the very deliberate behaviour on your part.
93 Overall, I consider your role to be significant, notwithstanding that it was your sister, Bronwyn, who locked the door preventing the victim from leaving and it was she who initiated the assault on Mr Kearney.
94 Nonetheless, you participated in the perpetration of significant violence against the victim and also prolonged the period of time during which the victim was prevented from leaving the home. This together with your actions during the currency of the false imprisonment, all of which have been described, means that I consider your role in this offending to be the same as Mr Fonua and played a significant part in the offending.
95 In formulating the appropriate sentence, I have had regard to your plea of guilty which was entered at a late stage. The plea still has real utility and you have facilitated justice so there will be a discount on sentence. You spared the State the time and expense of such a trial and, importantly, Mr Kearney was spared from having to be further cross-examined. You have facilitated justice and the sentence will be discounted accordingly. I have had regard to your difficult family circumstances and the Bugmy principles apply equally to you. I consider that you have some remorse but it is limited.
96 I have regard to the sentence that you have already undergone and the need for the sentence to reflect the totality principles. Overall I do not consider that a longer than usual period of parole is justified.
97 In sentencing you, I must impose just punishment.
98 I will now proceed to sentence you both, Mr Fonua and Mr Holland. Could you please stand
99 The formal court orders with respect to Mr Fonua are -:
100 Charge 1, false imprisonment – convicted and sentenced to two years’ imprisonment.
101 Charge 3, armed robbery – convicted and sentenced to three years’ six months imprisonment.
102 Charge 4, common assault – convicted and sentenced to one year’s imprisonment.
103 Charge 5, possessing an imitation firearm whilst prohibited – convicted and sentenced to 18 months’ imprisonment.
104 I make the following orders for cumulation. Six months of the sentences imposed on Charges 1, 4 and 5 are cumulative upon each other and upon the sentence imposed on Charge 3, making a total effective sentence of five years’ imprisonment and I direct that you serve three years before becoming eligible for parole.
105 I declare that you have spent 632 days in custody up to 20 September 2016 and direct that that be entered into the records of the Court.
106 The s.6AAA declaration, but for your plea of guilty I would have imposed seven years' imprisonment to serve five years' imprisonment.
107 The formal court orders with respect to Mr Holland are -:
108 Charge 1, false imprisonment, you will be convicted and sentenced to two years’ imprisonment.
109 Charge 2, common assault – you will be convicted and sentenced to one year’s imprisonment.
110 Charge 3, armed robbery – convicted and sentenced to three years’ six months imprisonment.
111 I make the following order for cumulation. Six months of the sentences imposed on Charges 1 and 2, are cumulative upon each other and upon the sentence imposed on Charge 3, making a total effective sentence of four years six months. I fix a non-parole period of two years nine months.
112 I make a declaration of pre‑sentence detention. I declare that you have served 459 days pre‑sentence detention and I direct that that be entered into the records of the Court.
113 I make the forfeiture orders sought.
114 Thank you. That was rather long but it is always long when there is two people. That concludes the sentencing. The men can be taken downstairs. Thank you.
115 MS JAGO: Your Honour, was there a - I may have missed it.
116 HER HONOUR: s.6AAA - Mr Holland six years and six months to serve four years.
117 We can adjourn.
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