Director of Public Prosecutions v Fuataga
[2023] VCC 1880
•27 October 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN FUATAGA |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2022 and 11 October 2022 | |
DATE OF SENTENCE: | 27 October 2022 | |
CASE MAY BE CITED AS: | DPP v Fuataga | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1880 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Theft – Armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 11 months’ and 3 weeks imprisonment with release onto a Community Corrections order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Brendan | Office of Public Prosecutions |
| For the Accused | Mr M. Haralambous | Greg Thomas Barrister and Solicitor |
HER HONOUR:
1 Ben Fuataga, you have pleaded guilty before me to one charge of theft and one charge of armed robbery. The facts underlying your offending are as follows.
2 I will refer first to Charge 1 on the indictment, theft, which is a rolled-up charge comprising three separate incidents of theft by you.
3 The first incident occurred on 23 July 2021, at 6.20 pm when you went to the BWS bottle shop at the Craigieburn Central shopping centre. You went in and looked at the spirits section before walking over to the service counter, speaking to a staff member, then walking back to the spirits of the store. You selected a 700 ml bottle of Fireball, held it close to your body obscuring the staff member from view and left the store without paying for the item. This offending was captured on CCTV footage.
4 The second incident occurred on 24 July 2021, at about a quarter past 10 in the morning. You returned to the same bottle shop carrying a Woolworths shopping bag, walking directly to the spirits section and selecting a 700 ml bottle of Fireball from the bottom shelf. You put the bottle into your shopping bag but were approached by a staff member as you left the store. You showed the staff member what was in the shopping bag but left without paying for the bottle. The matter was reported to police and your offending was captured on CCTV footage.
5 Incident three occurred on 8 August 2021, again at about 10.20 in the morning when you went to a BWS bottle shop in Keilor Road, Essendon. You entered the store through the drive-thru entrance, spoke with a staff member and then selected a cask of Sonata Estate white wine, placed it under your right arm and left without paying. You were followed by staff, who reported the matter to police and the offending was captured on CCTV footage.
6
In relation to Charge 2, armed robbery, on 15 August 2021, at about 7 o'clock in the evening you drove a grey Suzuki Celerio car on Kerferd Road,
Essendon North, getting out of the car near Kerferd Street and walking along a bike path where it joined Birdwood Street. A few minutes later you stopped outside an address in Birdwood Street, remaining in that area for a few minutes, then walking towards Keilor Road.
7 At 7.15 pm you entered the same BWS bottle shop, at which you had committed a theft about a week earlier through the drive-thru entrance. You immediately walked behind the counter where the staff member, Kieran McMahon was preparing home orders. You were holding a square metal pole in your left hand and had the hood of your jumper tightened around your face over a mask.
8 You yelled at Mr McMahon, 'Open the till now', at which point Mr McMahon turned and saw you holding the metal pole. Mr McMahon opened the till and stepped away with his hands in the air. You put the metal pole on the counter, grabbed cash notes out of the till, then grabbed a paper bag containing bottles of wine that Mr McMahon had been preparing when you walked up to him.
9 You emptied the bottle of wine and four packs of cans out and onto the counter. You then emptied the remaining contents of the till into that paper bag and placed the metal pole in the bag. You then walked around to the counter to the spirits section and took two 700 ml bottles of Bundaberg Rum, which you also placed in a paper bag and left the store. Mr McCulloch pressed the security alarm and called police. CCTV footage showed you returning to your car and driving away.
10
On 19 August 2021, police executed two search warrants for
Rose Hedge Drive, Sydenham and the grey Suzuki, which was parked outside this address and which was the car you drove to the armed robbery. They there found certain items linking you the commission of this offending.
11 You were seen in all four incidents wearing, in particular, a pair of red branded shoes, which were seized by police at the address that was searched, which was in fact the home of your partner, Che McCulloch.
12
You were arrested and taken to the Craigieburn police station on
19 August 2021. In a record of interview, you made admissions to the theft but denied the armed robbery.
13 The maximum penalty for armed robbery is 25 years imprisonment. The maximum penalty for theft is 10 years imprisonment.
14 This matter was settled at a fairly early stage and ultimately, you were remanded in custody but then released on bail on 25 January 2022.
15 I turn now to the victim impact statement in relation to the armed robbery. I make the comment that this was an extremely distressing victim impact statement to read. Mr McMahon wrote that before the armed robbery he was a happy independent person, with a positive outlook. But ever since this incident, which he found terrifying and for understandable reasons, he has suffered from post-traumatic stress disorder, anxiety and depression. He struggles with basic tasks, like driving on his own, leaving the house, going to shops, even walking the dog, stating, 'Some days, I found myself scared to leave my own room'.
16 He was studying full-time as well as working part-time. He had no trouble with this before the crime. He has since struggled with his studies Arts and said he almost failed his subjects. He stated, 'Since the crime I have experienced many anxiety and panic attacks that had to be treated with Valium. He said that a few days after the attack he turned 30, describing it as one of the worst days of his life. He suffered panic and anxiety attacks all day and he has had repeat days like this and required therapy, antidepressants and prescribed Valium.
17 His sleep has been impacted. He also (and this was extremely concerning to the court) stated, 'When I was younger, I had a stutter, which I worked tirelessly hard with a speech therapist to get rid of and manage. But since the incident and due to the anxiety, it has come back. Having a stutter as an adult has made me feel extremely embarrassed. This impacted on my studies, return to work and my relationships with friends and family'.
18 He also said the job at the bottle shop was his major income. He sometimes had to work alone but when he returned to work, could only work shifts when he was with someone else which limited the shifts he could work and has reduced his earnings. He had to use personal and sick leave. He lost about $1000 in wages and expenses.
19 He eventually concluded, 'This event has changed me for the worst and I'm afraid that I'll struggle to be the person I want to become through no fault of my own'.
20 I now turn to your personal circumstances. You are 33 years of age. You were born in New Zealand and when you were three, your parents emigrated to Australia. You have an older sister and younger sister. Both sisters have children and are law abiding.
21 Your family settled in Broadmeadows. Your parents moved to Queensland about five years ago but you remain close to them.
22 You left home when you were about 15 and stayed with a friend, then returned home but were often absent and couch surfing. You were expelled from high school in Year 10 for fighting. You then then worked at IGA but you were fired for stealing from there. Between the ages of 16 to 21 you worked in warehousing.
23
In 2009, you worked full time with Golden Circle as a pasteuriser but after two years you were fired for fighting with a co-worker. You then worked for
Mission Foods for a year but again were fired after becoming drunk at a Christmas party. You have since worked as a machine operator for about
six months but have not worked since 2020.
24 On 15 February 2020, you got into a fight with a housemate in Broadmeadows. You kicked in a door. This all occurred in the context of people being drunk. Your housemate stabbed you repeatedly and as a result you virtually have no use of your right arm or right hand and requiring possible amputation and the replacement of a prosthetic. Unfortunately, you have been unable to attend medical consultations that have been arranged for you.
25 Over the years you have engaged in an amount of offending, beginning in 2010 when you were placed on a community-based order for robbery and recklessly causing injury. Then you got a second community-based order in 2011, for unlawful assault and handling stolen goods. You were fined in 2015 for handling stolen goods.
26 You were fined for intentionally damaging property in 2019. You were also placed on a community-based order for burglary, committing an indictable offence whilst on bail, intentionally damaging property and contravening a family violence intervention order.
27 On 17 October 2019, you were dealt with for persistent contravention of a family violence intervention order, committing an indictable offence on bail, shoplift and contravening a family violence intervention order. You were placed on an adjournment with conditions for treatment. On the same date your community corrections orders were cancelled.
28 On 10 February 2021, you were fined for hindering a protective services officer.
29 In January 2022 you were released on bail in order to engage with CISP, that is Court Intervention Services. I received a report from them. You did not offend during that time however, although it would appear there has been subsequent offending, according to your prior convictions.
30 You were sent for urgent detoxification to Windana. You discharged yourself the next day. You then began drug and alcohol counselling at Windana but eventually disengaged from that.
31 I should return to your recount of your drug and alcohol history. You started drinking alcohol when you were 15 and this immediately became problematic for you and has remained problematic. You started binge drinking, then began drinking daily and it would appear around the time of this offending you were drinking about a slab of beer every day.
32 You began using cannabis from the age of 15, which you used daily and at the time of this offending you were also engaging in daily ice use.
33 It would appear, according to examination by psychologist, Gina Cidoni, whose report was tendered on the plea, your longstanding substance abuse has meant that you find it difficult to make rational judgments. She believes you are suffering post-traumatic stress disorder and depression in relation to the stabbing in 2020. She believed that you would find prison more difficult because of your psychological and physical injuries and essentially stated that it would appear that from her examination of you that your IQ falls at the borderline stage.
34 Going back to your performance whilst on CISP, after the detox and drug and alcohol counselling failed, preparations were then made to get you ready for making an application to be placed on a drug and alcohol treatment order. However, you did not attend the scheduled assessment.
35 The DATO team made many attempts to contact you. Eventually you threatened staff at Drug House and Judge Higham of that court ruled that you are not eligible for placement on a DATO order.
36 You have also missed two appointments for a disability pension assessment. You have also obtained a mental health plan but done nothing with it.
37 There has been a neuropsychological assessment which no one seems to be able to get hold of but apparently it refers to you suffering extremely severe levels of mental health related symptomatology, low mood, anxiety, stress and post-traumatic stress disorder.
38 You made suicide threats whilst you were on CISP. There was a welfare check conducted by police but you had left the area. It was stated in the CISP report that you would certainly benefit from managerial support but you are not ready yet to accept this.
39 Ms Cidoni believed you had an adjustment disorder, PTSD, a major depressive disorder and a substance abuse disorder relating to methylamphetamine and ice. All of the disorders, she believes, date back to the 2020 stabbing.
40 In a very comprehensive plea, your counsel, Mr Haralambous, urged that I deal with you by placement on a community corrections order combined with the time you had already served in custody.
41 You do continue to enjoy the support of your partner, Che McCulloch, who indicated that on your release from prison she was prepared to have you live with her until you found other accommodation.
42 At the time of this offending, you were living in a share house in Caulfield, which would, Mr Haralambous told me, be available to you, were I to give you a short term of imprisonment but might be lost to you if it was longer.
43 The problem is, Mr Fuataga, is that whilst the court can have sympathy for the fact that you were involved in the stabbing, you have had problems with drugs and alcohol for years.
44 While you were on CISP every effort that was made for you went nowhere. You just did not try and what I have to be concerned about is that you have virtually ruined the life of your victim, Mr McMahon, by terrifying him and committing the armed robbery on him. You have got post-traumatic stress disorder. Now you have caused someone else to have i.
45 I have to take into account whether you pose a danger to the community. It seems to me that despite every effort that was made for you whilst you were on CISP you did not offend but that was only because of the enormous efforts made by CISP.
46 You do not seem prepared to do anything about your drug and alcohol problem. In my view, you remain a danger of re-offending, so that the principle of protecting the community is an important one that I must take into account.
47 I accept that for you gaol is a lot harder because of the injuries to your right arm and because of the difficult psychological problems that you continue to suffer. You are in custody during the time of pandemic, so that there are less programs available for you. And your plea of guilty is more significant than would otherwise be the case because of the backlog the court is now facing in getting through work which was delayed by the lockdown conditions of the pandemic.
48 Nevertheless, as I made it clear to Mr Haralambous, in my view, the time that you had served in custody goes nowhere near to satisfying the seriousness of the offending you committed, particularly in committing the armed robbery.
49 However, because of the various difficulties that you face it is my view that I can deal with you by way of a combination sentence but you are not getting out any time soon, Mr Fuataga. I sentence you as follows.
50 In relation to Charge 1, you are sentenced to six months imprisonment.
51 In relation to Charge 2, you are sentenced to 11 months and three weeks imprisonment, which the two sentences will be served concurrently and on Charge 2, I am going to release you on a community corrections order for a period of two years.
52
You were found suitable for placement on this order. You were found to be a high risk of re-offending. However, in all the circumstances you were considered suitable for placement on this order. So, what is the PSD, please,
Mr Lior?
53 MR LIOR: My count is 127 days, Your Honour.
54 HER HONOUR: I declare that 127 days of this sentence have been served by way of pre-sentence detention. So, when you get out, Mr Fuataga, you are going to be on a community corrections order for a period of two years.
55 You are extremely lucky I did not give you something in the order of four years with a two year minimum for your armed robbery. I hope you appreciate the damage you have caused to another human being who was doing nothing but going about his job. He is suffering exactly the same sorts of psychological difficulty that you are as a result of the stabbing and I note that the stabbing occurred because you were involved in a drunken fight.
56 Now, either you do something about your substance abuse when you get out on the order or you can just decide that you are going to go to gaol for a long time because that is all that is going to happen to you. And I will be ordering judicial monitoring, Mr Fuataga and if you do not take advantage of the community corrections order and you are breached I will re-sentence you on this and I regard this offending as extremely serious and you can expect another couple of years on top if you offend or do not attend to the community corrections order. Do you understand me?
57 ACCUSED: Yeah. I understand, Your Honour.
58 HER HONOUR: Good. I am glad you do. Before I can place you on a community corrections order (as you should well know as you have had a number of them) I need to explain the conditions of the order, which I can only place you on with your consent.
59
They are that whilst you are on the order, which will last for two years, you must not commit any offence punishable by imprisonment. That means if you knock off a box of matches from Woolworths you will breach the order and I will
re-sentence you for the armed robbery.
60 Whilst you are on the order you may not leave Victoria without the permission of the community corrections order. Also, whilst on the order you must report any change of address or employment within 48 hours of that change being made.
61 You must not attend upon the community corrections office under the influence of drugs or alcohol. You must report to and receive visits from the community corrections office. You must obey all lawful directions of the community corrections office.
62 I am going to order that you undertake 80 hours of unpaid community work. You are to attend for assessment and treatment for alcohol and drug abuse. You are to attend for assessment and treatment for mental health difficulties.
63 I am also ordering supervision and I am ordering judicial monitoring. I will order a judicial monitoring for 27 October 2023. All right, at 9.30.
64 MR HARALAMBOUS: Thank you, Your Honour.
65 HER HONOUR: Thank you. Pursuant to s6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three and a half years and ordered that you serve a minimum term of two years.
66 Is there anything else that I need to attend to?
67 MR LIOR: Just the forfeiture orders.
68 HER HONOUR: Yes. I'll sign it and get it back to you. All right.
69 MR LIOR: Certainly, Your Honour.
70 HER HONOUR: I thank counsel very much for their assistance in this matter. Yes. Thank you. We will stand down.
71 MR LIOR: If the court pleases.
72 HER HONOUR: Thank you.
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