Director of Public Prosecutions v Fosita

[2016] VCC 111

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01502

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGALO FOSITA

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JUDGE:	HIS HONOUR THE CHIEF JUDGE (JUDGE KIDD)
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2016
CASE MAY BE CITED AS:	DPP v Fosita
MEDIUM NEUTRAL CITATION:	[2016] VCC 111

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	Office of Public Prosecutions
For the Accused	Mr W. Barker

HIS HONOUR: 

1Ngalo Fosita, you have pleaded guilty to three charges of armed robbery, one charge of attempted armed robbery and two charges of theft.  The offending involved four episodes of armed robbery or attempted armed robbery on different targets and occurred over a two-day period between 30 May 2015 and 31 May 2015.  The cars were stolen to carry out these crimes.

2The offences were committed by a group of four offenders, namely you and two co-offenders, MS and ME, and a fourth offender who has not been charged.  MS and ME were both 17 at the time of the offending and have or are being dealt with for these matters in the Children's Court.  Mr Fosita, you were born on 4 September 1995 and are aged 20.  You were 19 years of age at the time of the offending.  You were and are an adult offender, albeit a young offender.

3This is a difficult sentencing task.  On the one hand you are a person with a criminal history, which I will come to, who has engaged in serious offending and you need to be appropriately punished.  Yet you are still a young person and there is a strong public interest in having you rehabilitated and made a productive member of society. 

Maximum penalties. 

4The maximum penalties for these offences are as follows.  Armed robbery
25 years, attempted armed robbery 20 years, theft ten years.  In the settled reasons I will cite the relevant provisions.

Circumstances of the Offending

5I turn to the circumstances of the offending.  The plea opening was tendered on the plea as an agreed statement of facts.  Charge 1, theft, 30 May 2015, white Ford Territory SUV.  At approximately 2.30 am on Saturday 30 May 2015 the offenders, not you, drove to a service lane off Old Geelong Road, Brooklyn, where they stole a white Ford Territory SUV valued at $45,000. 
A short time later the offenders, including you, drove the stolen Ford Territory to a 7-Eleven store situated at 1603 Sydney Road, Campbellfield.

6Charge 2, armed robbery on 30 May of the 7-Eleven store at that address.  At 3.08 am that night the offenders arrived, and that includes you, at the Campbellfield 7-Eleven store.  ME drove the car in reverse into the front entrance doors causing them to break open.  You, MS and the other offender, all wearing hoods, gloves and masks, then entered the store shouting, "Where's the money?" and brandishing knives and a machete.  You and MS smashed open the door to the cashier area and took $253.20 cash from the cash register and three trays of cigarette cartons.  The store attendant was standing next to the register holding his hands up in fear while this was happening.

7The fourth offender then approached a female customer with the machete and yelled at her to give him her wallet.  She handed over her bag and he took it to the counter, at which time she followed and grabbed it back.  He then punched her in the face and ran off with $130 of her cash.  The offenders, including you, drove off in the Ford Territory.  The incident was captured on CCTV footage.

8Charge 3, armed robbery on 30 May at the Coles Express, 336 Bell Street, Pascoe Vale.  At approximately 3.30 am that night the offenders, including you, drove to a Coles Express service station situated at the address I have just mentioned.  ME was driving and remained in the car whilst you, MS and the fourth offender forced open the front doors and walked inside the store.  Again, you were wearing hoods, masks and gloves and brandishing weapons. 

9The offenders, including you, approached the attendant, shouted at him to give them money and pushed him towards the till.  The attendant gave them $200 cash from the register.  One of the offenders, not you, punched the attendant in the face.  The offenders took the attendant to open the safe but he did not have a key.  They took him out to the shop floor and told him to close his eyes or they would hurt him.  You all then ran out of the store and drove off.  The incident was captured on CCTV footage.  Later that day the Ford Territory was located by police in Sunshine.  It had been set on fire and completely destroyed.

10Charge 4, theft, 31 May 2015, the white Nissan Skyline.  At approximately
11 pm on Sunday 31 May 2015 some of the offenders, not you, stole a white Nissan Skyline valued at $8000 from Sunshine West. 

11I then move to the attempted armed robbery, Charge 5, on that day 31 May 2015 at the McDonald's restaurant store at Keilor Park Drive, Keilor Park.  At approximately 11 pm that night the offenders, including you, drove the Nissan Skyline to McDonald's restaurant at that address.  Again, ME was driving.  You, MS and the other offender, that is the fourth offender, got out of the car and approached the front doors; however, the doors were locked.  You were wearing hoods, masks and gloves and carrying knives.  You began banging on the doors and yelling to the attendants to open the doors.  The attendants went to a back room and called police.  The offenders, including you, then drove off.  The incident was captured on CCTV footage.

12Charge 6, armed robbery, 31 May 2015 Caltex service station, 847 Pascoe Vale Road, Glenroy.  At approximately 11.30 pm that night the offenders, including you, drove the Nissan Skyline to a Caltex service station situated at 847 Pascoe Vale Road, Glenroy.  ME drove the car in reverse into a glass pane next to the front entrance doors, causing them to break open.  You, MS and the other offender, that is the fourth offender, again all wearing hoods, gloves and masks and carrying weapons, entered the store.  You and MS demanded cash from the attendant.  The attendant handed the offenders a register tray and a cash drawer containing a total of $1200. 

13The fourth offender approached a customer at the rear of the store and robbed him of his wallet while menacing him with the machete.  The incident was captured on CCTV footage.  The wallet was found later but $20 had been stolen.  On 1 June 2015 the Nissan Skyline was located by police in Derrimut having been set on fire and completely destroyed.

14On 4 June 2015 you were arrested by police.  When interviewed you made admissions to the offences on the indictment but refused to identify your co-offenders.  During the interview you were shown stills from relevant CCTV footage and identified yourself. 

Objective gravity of the offending. 

15These are serious examples of the offences of armed robbery and attempted armed robbery.  Your counsel accepted it was serious offending.  They were carried out in company, four offenders in all.  They involved the use of multiple weapons, including a machete, an intimidating weapon, which you knew was being carried by the fourth offender.  They were executed in a highly confrontational and aggressive manner.  In two cases the motor vehicle was driven into a store door or window pane so as to gain entry.  In the armed robbery on the Caltex store the attendant was punched to the face.

16They involved some degree of planning or forethought.  They were not entirely unsophisticated, with disguises and gloves being worn so as to conceal your identities.  The stores were vulnerable and soft targets.  I consider these midrange examples of this type of offending or this offence.

Your role.

17Your counsel put to me that you instructed him that you were led by your peers into the offending and that the offending was not your idea.  You gave an account to this effect to the officer who interviewed you in relation to the Youth Justice report, which I will come to in a moment.  I accept you were not involved in the theft of the cars, but you got into them knowing that they were stolen and understood that they would be used in the armed robberies or attempted armed robbery.  There is no evidence to suggest that your involvement in the planning was other than limited; there is no evidence that you were the ringleader or instigator. 

18That said, the facts as opened and the CCTV footage of the incidents which I have seen indicate that you played a significant role during each episode.  In each of the completed armed robberies you entered the store and together with MS approached the counter and demanded with menaces cash from the attendant.  You personally brandished a knife on each occasion.  From your point of view the offending was purposeful: to obtain a financial benefit for your children.  The fact that you participated in targeting four separate store over two days suggests that you were a willing participant.  While you may not have been the instigator, this offending did not involve a momentary, isolated and reluctant succumbing to peer group pressure.

19I accept, however, that the fourth offender, who has never been charged and who carried the machete, appears to have been the most aggressive and dominant offender.  He was the one who confronted the customers and punched the customer at the 7-Eleven store robbery.

Financial benefit. 

20Your counsel put to me that you instructed him that you had received almost no benefit from the offending.  You only received cigarettes but no financial gain.  The prosecution is not in a position to dispute this claim and there is no specific evidence that you did;  that is, that you did financially benefit beyond the cigarettes.  Of course, on your own account of things you participated in this offending as you felt pressure to provide financially for your children. 
I sentence you upon the basis that you did not obtain cash but clearly your motive and expectation was that you would.

Uncharged acts.

21You are not charged with the armed robberies committed by the fourth offender upon the customers during the armed robbery on the 7-Eleven, which is Charge 2, and the armed robbery on the Caltex service station store which is Charge 6.  These uncharged acts against these customers were opened as providing context to the charged armed robberies.  Defence counsel accepted these were relevant to context and I understand that the matter was resolved upon that basis.  These uncharged acts show that the armed robberies were committed upon stores which were open to the public and that customers were present.  These customers were thus exposed to the charged armed robberies committed upon the attendants. 

22Further, during the course of the charged armed robberies committed upon the store attendants the store attendants witnessed these customers being confronted in some way by the fourth offender.  The confrontations upon the customers form part of the circumstances of the charged armed robberies upon the store attendants.  I thus only take these uncharged acts into account as part of the surrounding circumstances applicable to the charged armed robberies.  I do not treat the uncharged armed robberies upon the customers, including the physical assault upon the customer at the 7-Eleven episode, as separate offences committed by you, Mr Fosita.  I do not punish you for them.

Victim impact statements. 

23While each of the victims has declined to make a victim impact statement, it must have been a terrifying ordeal for each of them.  Your victims were soft targets who were just going about their work. 

Criminal history. 

24You have relevant and significant prior convictions for offences including robbery, attempted robbery and theft.  These are as follows.  On 30 July 2013 you were placed on a Youth Supervision Order for a period of 12 months by the Melbourne Children's Court for the offences of robbery and recklessly cause serious injury.  On 7 January 2014 you were sentenced by the Sunshine Magistrates' Court to 12 months' detention in a youth training centre, multiple thefts of a motor vehicle, driving dangerously while pursued by police, attempted robbery, intentionally causing injury and shop theft.  You were granted youth parole in June 2014 which you completed on
17 December 2014.  This offending occurred during the previous eight-month Youth Supervision Order.

25On 7 March 2014 you were dealt with for assault in company without conviction in the Kyneton Children's Court.  I have also been informed of some subsequent offending or subsequent matters.  On 6 July 2015 you were sentenced by the Melbourne Magistrates' Court to an aggregate 42 days' imprisonment for theft of a motor vehicle and theft from a motor vehicle.  This offending occurred in October 2014.  You were also convicted and fined at the same court sitting for another theft of a motor vehicle, handling stolen goods and criminal damage.

26I now turn to some personal mitigating factors and some personal factors.  Firstly, your family background.  Mr Fosita, you were born in Australia on
4 September 1995 and are 20 years of age.  Your parents are Samoan.  Your mother is a stay at home mother.  Your father works as a welder or forklift driver.  You have two younger brothers and two older sisters.  You are very close with your siblings.  You have two sons with your former partner, Anna Pola.  You resided together until January 2015.  Your sons are Boston, aged two years, and Jericho aged nine months.  You and Anna remain good friends and you plan to have a relationship with your sons upon your release.

27You are in a current relationship with Patrice Thompson.  You met
Ms Thompson through a friend in early 2015 and you have remained together while being on remand.  In addition to these supports you have strong family supports to return to, namely your parents and siblings.  Upon the completion of any sentence you can reside with your parents.

Education and employment. 

28You completed your primary schooling at Olympic Village, Bellfield, and Craigieburn Primary.  You then went on to high school and attended at the Craigieburn Secondary School.  You left after commencing Year 10 due to having anger management problems but you also had a desire to enter the workforce and to make a living.  While you were still at school you worked in a fish and chip shop near your home.  You left that job and then got a job as a labourer unloading shipping containers for Fast Line.  You worked in this role for one year before being sentenced to the term in the Youth Training Centre on 7 January 2014 which I have mentioned.

29When you were released you commenced a bricklaying apprenticeship with Bennie's Bricklaying and worked in this role up until the time you were arrested for the charges you pleaded guilty to.  You enjoyed working in construction and are motivated to pursue a career.

30In relation to making use of your time in custody, also on a positive note since being on remand at Metropolitan Remand Centre you have completed various courses: the education pathway program and the food handlers and
OH&S training.  You have also worked for about four hours of metalwork per day and have expressed an interest in pursuing qualifications in this field.  While you have been in custody you have completed a two-day welding course.  Since the riots at MRC there have been no cultural parenting programs available to you.

31I return to your admissions and your plea of guilty.  Mr Fosita, you made admissions to the allegations in the record of interview.  You identified yourself in CCTV footage stills of the incidents.  You could not otherwise be identified from the CCTV footage because of the disguises.  You entered a plea of guilty at the earliest possible time.  You indicated you would plead guilty to the charges on the indictment at a committal case conference hearing on 27 August 2015.  You are entitled to the utilitarian benefit because of your early plea.  Your admissions assisted authorities by avoiding a lengthy investigation. 

32In addition, the only evidence the police had against you was a statement of the co-offender MS, who was of course still a child.  He implicated all his co-offenders, including the fourth offender.  The fourth offender was never charged.  The authorities seem to have taken the view that the statement of the co-offender MS was an insufficient basis upon which to charge the fourth offender.

33It follows that while your offending was known to the police and there was evidence against you implicating you in this offending in the form of a co-offender's statement, you were only charged because of your confession.  Absent your admissions, it seems unlikely that the case could be proved against you beyond reasonable doubt.  That is the assessment which has been made by the police in this case.  In the circumstances you are entitled to a Doran discount, which is material, in addition to the discount which otherwise flows from your admissions, cooperation, and plea of guilty.  As for the explanation for your offending, it was submitted by your counsel that you are not sufficiently mature to fully comprehend the wrongfulness of what you were doing at the time.  You made the decision to commit this offending to provide for your children.  You acknowledge you have an anger problem and this also appears to have played some role in the offending.  Your counsel submitted that substances have played no role in your offending and I accept this.

Young offender. 

34Mr Fosita, you are a young offender.  I take into account that you were a young offender at the time of the offending, 19 years of age, and remain a young offender, currently 20 years of age.  The youth and rehabilitative considerations and principles discussed in cases like Mills and Azzopardi apply, and in the settled reasons I will include the citations.  Significant weight must be placed on your immaturity and the need to provide for your rehabilitation.  I will do this, but as I will discuss below, these considerations must be balanced against other factors.

35In relation to insight, your insight into the offending and your remorse. 
I accept that based on all the material, and in particular your admissions and plea of guilty, you have shown some remorse as well as some level of insight into your offending.  My findings on remorse and insight are, however, qualified to some degree.  The officer who compiled the Youth Justice Report, a senior court advice worker, concluded that you have "failed to demonstrate reasonable insight into the impact of his offending nor full acceptance of his personal responsibility for his choices and behaviour, rather tending to minimise and justify his involvement".

36I accept your counsel's submission that your minimisation of your role to the officer is partly explained by your insistence that you played a limited role in the planning of the offences.  That said, I do not think you have fully accepted the significant role you actually played in the incidents themselves.  Your insight is not fully developed.  Further, while you have shown some remorse, part of your regret for having engaged in these very serious crimes is because you did not materially benefit from them.  The writer of the Youth Justice Report noted that while discussing the offences you continually stated, "I'm an idiot.  Why did I do it, I got nothing out of it".  This suggests that your regret is not fully attributable to being genuinely contrite.

Prospects of Rehabilitation.

37There are, as I have already outlined, some positive mitigatory factors in your life, including your youth, your plea of guilty and cooperation in this matter, you have strong family support, you have a partner and children, you have accommodation available with family where you will have strong support, you have prospects for employment.  Your current partner has been arranging employment on your behalf upon your release.  You have utilised your time on remand well in this matter, and whilst your compliance with Youth Justice and Youth Justice programs is somewhat chequered, you have shown some capacity to comply with court orders and complete programs.  For example, you completed your youth parole in the last matter.

38Unfortunately, your criminal history, your previous failures to take the opportunities made available to you to reform, and your less than full insight into your offending make me cautious in my assessment of your prospects of rehabilitation.  Despite some of the positive factors in your life existing prior to your latest offending, you have not stopped offending.  You committed the current offending some four months after you completed the 12-month Youth Training Centre detention order.  Self-evidently, that term of confinement accompanied by youth parole did not deter you from further and more serious offending.

39Further, not only have you continued to re-offend, the gravity of your offending has escalated to the level of armed robberies.  While you have some prospects, they are less than reasonable.

40I turn to the question of parity.  On 6 November 2015, MS pleaded guilty to eight charges of armed robbery, two charges of attempted armed robbery and four charges of theft in the Melbourne Children's Court and was sentenced to a period of eight months' detention for each armed robbery, one month for the attempted armed robberies and seven days' detention for each theft, with a total effective period of 18 months' detention in a Youth Justice Centre.  This 18-month sentence encompassed the offending which you, Mr Fosita, committed, but also incorporated additional offending. 

41ME's matter is yet to be finalised in the Melbourne Children's Court and as stated above, the fourth offender, who appears to have been the most aggressive offender, remains at large.  No question of parity arises with respect to these two co-offenders.  Your counsel sought to invoke the parity principle with respect to MS.  The parity principle can only have limited application in the case of an adult offender where a young offender has been dealt with in the Children's Court according to different principles and practices.  Indeed, your counsel accepted as much on the plea.  MS was dealt with as a child whereas you are to be sentenced as an adult.  The principle of general deterrence played no role in the case of MS whereas it does in your case.

42That said, you are a young offender, and while the difference in your age is a little under two years, it is not marginal nor is it a very significant age gap.  While the parity principle does not apply in the ordinary way, I do take it into account in the sentence that I will impose upon you as part of the relevant background; that is, I do take into account the sentence imposed upon MS when I come to sentence you as part of the relevant background to your sentence.

43To the extent that I take it into account, I note the following in addition to the differences already identified.  In terms of role in the offending common to both of you, your roles are broadly similar.  While MS's offending breached a youth attendance order which was imposed in the Children's Court for, amongst other offences, armed robbery and attempted armed robbery committed whilst still a child offender, it is a very significant difference that you had priors as an adult offender and moreover that you had previously been incarcerated for offending as an adult offender.

44MS also implicated his co-offenders at interview, which was adopted in the subsequent police statement; you did not.  I note, however, that the court record in relation to MS of his sentence does not record that he was given a specific discount for this assistance and, as I have already noted, MS was, of course, a child; you were an adult some two years older.

45I have mentioned the youth detention report on several occasions and I now turn to it in some detail.  Your counsel initially submitted that I should sentence you to a term of youth detention.  Because of your youth I directed that you be assessed for a Youth Justice sentence order.  The officer has assessed you as being unsuitable for such an order.  According to the report your compliance with Youth Justice orders and engagement with the Youth Justice system is mixed.

46While on your Youth Supervision Order imposed on 30 July 2013, you committed further offending on 14 November 2013 for which you were sentenced to a period of youth detention on 7 January 2014.  You otherwise engaged well under your Youth Supervision Order and did attend appointments.  While in youth detention at the Malmsbury Youth Justice Centre you were involved in two serious incidents with staff members and were generally rude, demanding and threatening towards staff.  In relation to your youth parole, you regularly attended counselling sessions, attended a majority of your supervision appointments and gained fulltime employment.  Your attendance was satisfactory, you completed it successfully.

47You have, however, a history according to the officer of initially engaging in education and vocational training opportunities but then ceasing to attend. The officer, that is the author of the Youth Justice report, assessed you as not satisfying the criteria under s.31(1A) and (B) of the Sentencing Act.  You were assessed as not being particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison having regard to your criminal history and to your behaviour in custody.  You were assessed as not having reasonable prospects for rehabilitation.  The officer noted your escalating pattern of serious offending in spite of numerous efforts to assist you in engaging in rehabilitative programs.  The officer, however, did not assess you as a person with no prospects.

48I turn to the question of the issue of totality and cumulation or concurrency.  The offending involved four episodes of armed robbery or attempted armed robbery on different targets and the theft of two motor vehicles.  The overall sentence I impose must reflect this.  On the other hand the offending occurred over about a 48-hour period and the motor vehicles were stolen to carry out the armed robberies or attempted armed robbery.  The theft of the motor vehicle on the first night, which is Charge 1, and subsequent armed robberies committed on that night, Charges 2 and 3, were committed within the hour.  The theft of the motor vehicle on the second night, Charge 4, and the subsequent armed robbery and attempted armed robbery, Charges 5 and 6, were committed over the course of only about 30 minutes.  The fact that the offending was committed as part of a spree over a relatively short period of time calls for significant concurrency.

49Turning to the question of your 42 days' imprisonment that you served after your arrest on these matters and the question of totality.  The pre-sentence detention which I will declare in relation to these matters does not include the 42 days' imprisonment to which you were sentenced on 6 July 2015 on unrelated matters.  You were already in custody for the current matters when you received that sentence.  I take that term of imprisonment into account on the question of totality.

50I now turn to the issue of balancing the various factors and principles, some of which I have discussed so far, and the sentence which I will impose upon you.  Your youth remains a significant factor in sentencing despite your criminal history, the seriousness of this offending, and my concerns about your prospects.  Your youth will temper the sentence I impose and I will tailor the sentence so as to maximise your rehabilitation as far as I can.  But as I said earlier, the weight to be placed on your youth must be balanced against other factors.  Specific deterrence is conceded by your counsel to be very important.  The sentence must be tailored to deter you from reoffending.  Your counsel submitted that being able to observe the difficult adult custodial conditions on remand has served to deter you from offending further in the future.  I will take this into account.

51Your counsel explicitly did not rely in mitigation on any custodial hardship experienced by you on remand because of the conditions at the MRC since the riots, acknowledging that you still had access to various job and course opportunities.  I nevertheless take into account that you have spent a  significant period of time on remand and that the circumstances have been less than ideal.

52General deterrence, just punishment, and protection of the community remain important sentencing considerations for offending of this kind.  While the influence of general deterrence must be moderated as a sentencing consideration in light of your youth, the need to also reflect the gravity of this offending by someone with your criminal history and with problematic prospects for reform limits the dispositions available to me for you.  In light of the Youth Justice report, your counsel no longer pressed the submission that I should sentence you to Youth Justice detention.  He persisted with the alternative submission that I should impose a sentence of a term of imprisonment in combination with a Community Corrections Order.  The Crown did not oppose this course.

53I am not satisfied that a Youth Detention Order is appropriate for you.  You do not have reasonable prospects of rehabilitation and you are not particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.  I have also concluded the Youth Detention Order is insufficient to meet all the sentencing objectives in your case.  Youth Detention and Youth Justice Orders have not worked in the past to deter you from reoffending and I have little confidence that such a disposition would do so now. 

54I said I would tailor the sentence to maximise your reform as much as I can. 
I can do this by imposing a term of immediate imprisonment to be followed by a lengthy Community Corrections Order which will, in addition to constituting additional punishment, assist you in addressing some of the underlying causes behind your offending.

55At the last hearing I directed that you be assessed for the suitability of a Community Corrections Order and you were assessed as suitable.  Mr Fosita, I propose to sentence you to a total effective term of 18 months' imprisonment, to be followed by a Community Corrections Order of three years' duration.  I will come to the details of the terms of imprisonment in a minute, but I can only impose that Community Corrections Order with your consent, so I will explain the conditions to you.

56First - and this is after you have completed your 18-month term of imprisonment, that is when I propose that the Community Corrections Order commence - you will need to comply with the conditions provided by s.45 of the Sentencing Act. They are in summary the following.  You must not commit, whether inside or outside Victoria, during the period of the order an offence punishable by imprisonment - and I note most offences are punishable by imprisonment.  (2) You must comply with any obligation or requirement prescribed by the regulations, and that will be explained to you.  (3) You must report to and receive visits from the Secretary, and the Secretary is otherwise known as the Office of Corrections, during the period of the order.  You must report to and receive visits from the Office of Corrections during the period of the order.  You will be reporting to the Broadmeadows office.

57You must report to the community corrections centre or office specified in the order within two clear working days after the order comes into force and, as I indicated to you, this order will come into force immediately upon your release from imprisonment.  Next, you must notify the Office of Corrections of any change of address or employment within two clear working days after the change.  You must not leave Victoria except with the permission of the Office of Corrections and you must comply with the direction given by the Office of Corrections that is given to ensure that you comply with this order.

58In addition to those general orders that you must comply with, I also intend to impose the following additional conditions. Pursuant to s.48D of the Sentencing Act you are to participate in offending behaviour programs including anger management programs. Further, pursuant to s.48E of the Sentencing Act you are to be supervised, monitored and managed as directed by the Office of Corrections.

59Mr Fosita, do you consent to the terms and conditions of this proposed Community Corrections Order?

60OFFENDER:  Yes.

61HIS HONOUR:  Please remain standing, Mr Fosita.  On Charge 1 of theft you are convicted and sentenced to one month's imprisonment.  On Charge 2 of armed robbery you are convicted and sentenced to a period of 12 months' imprisonment.  This is the base sentence.  On Charge 3 of armed robbery you are convicted and sentenced to 12 months' imprisonment.  On Charge 4 of theft you are convicted and sentenced to one month's imprisonment.  On Charge 5 of attempted armed robbery you are convicted and sentenced to six months' imprisonment.  On Charge 6 of armed robbery you are convicted and sentenced to 12 months' imprisonment. 

62I make the following orders for cumulation.  I direct that two months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 6 and one month of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 2, being the base sentence.  I further direct that the sentences imposed on Charges 1 and 4 be served concurrently upon each other and upon the sentence imposed on Charge 2.  This makes a total effective sentence of
18 months' imprisonment.

63To follow this period of imprisonment I make an order for a Community Corrections Order to be served on Charges 2, 3, 5 and 6.  The Community Corrections Order will be for a period of three years and will commence upon the date you are released from custody.  In addition to the mandatory terms of the order, you must participate in the specific orders and programs which I have outlined to you a moment ago.  Next, you are disqualified from obtaining a driver's licence for a period of three months commencing on 2 January 2017.

64I will now have the Community Corrections Order printed up and I am happy for your counsel to approach the dock because you will need to sign that Community Corrections Order.

65I note for the record that Mr Fosita has signed that Community Corrections Order.

Pre-sentence detention.

66You have been in custody since the date of your arrest on 4 June 2015. Thus you have spent 201 days in custody in relation to these matters, not including today - and I note again that 201 days does not include the 42 days of imprisonment that you served in relation to unrelated matters. Pursuant to s.18 of the Sentencing Act I declare 201 days be reckoned as the period of imprisonment already served under this sentence.

Section 6AAA Sentencing Act.

67Pursuant to the provisions of s.6AAA of the Sentencing Act, had you not pleaded guilty I would have sentenced you to four and a half years' imprisonment with a non-parole period of two years and nine months. 

The disposal order.

68I made a disposal order on the first day of the plea so there is no need to make that today.

69Unless there is anything else, gentlemen?

70COUNSEL:  No, Your Honour.

71HIS HONOUR:  Will you adjourn the court, please.

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