Director of Public Prosecutions v Fuimaono-Fretton

[2023] VCC 387

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

     Revised

Not Restricted

    Suitable for Publication

Case No.CR-22-01019

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARMSTRONG FUIMAONO-FRETTON

---

JUDGE:	His Honour Judge Gucciardo
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022
DATE OF SENTENCE:	8 March 2023
CASE MAY BE CITED AS:	DPP v Fuimaono-Fretton
MEDIUM NEUTRAL CITATION:	[2023] VCC 387

REASONS FOR SENTENCE

---

Subject:Criminal Law. Sentence upon plea of guilty.           

Catchwords:        Armed Robberies - Co-offender - Offences committed under the

influence of drugs and alcohol - Prior criminal history - Early plea of

guilty - Covid-19 delay - Good prospects of rehabilitation – Evidence

of remorse – Prospects of deportation.   

Legislation Cited: Sentencing Act 1991.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen

[2021] VSCA 175; Bugmy v The Queen [2013] HCA 37; Guden v

The Queen [2010] VSCA 196; Konamala v The Queen [2016] VSCA

48; Matamata v The Queen [2021] VSCA 253.

Sentence:           Total Effective Sentence of 4 years and 9 months with a non-parole   

period of 3 years.

---

APPEARANCES:	Counsel	Solicitors
For the Department of Public Prosecutions	Ms A. Byrne
For the Accused	Ms B. Kelly

HIS HONOUR:

1       Armstrong Fuimaono-Fretton, you pleaded guilty to two charges of armed robbery.  The circumstances of your offending were outlined in a prosecution opening for your plea and maybe briefly recited in summary form.

2       On 11 December 2021, you and another one, Eric Cruz Valaskis drove to the bottle shop in Laverton.  The car was driven by Cruz, had no plates affixed to it, he was unlicenced and the vehicle belonged to his father, it was about 2.23 pm.

3       Once inside you selected two 24 pack of pre-mix drinks valued at about $180.  Having gone to the cool room, Cruz also took a 10 pack of cans valued at $52 and one pack of 24 cans valued at $90 from the courtroom at the back of the store.  You both turned and walked back towards the exit.  On your way out an employee of the store, a female of short stature and slight build, approached the two of you and asked if you needed assistance.  You said nothing and kept walking, ignoring her.  She told you that you needed to pay and pulled at the t-shirt worn by you, trying to restrain you. 

4       As soon as she did so, Cruz pulled out a black handgun from the pocked of his shorts and pointed it at her face saying, I have a gun.  He then used his arm and body weight to shove her forcefully to the ground.  And then you both walked out calmly of the store to the car.  Cruz got in the driver's side with you sitting on the passenger seat, and you drove off.

5       These events were captured by CCTV footage from inside and outside the store, they make for a confronting viewing and clearly describe the events in relation to Charge 1 of armed robbery.  You were wearing a black cap, a face mask and black-hooded jumper, black Adidas shorts, work boots and gloves.  Similarly, your co-offender had a black cap, face mask, a grey hooded jumper, black long pants, Nike shoes and gloves.  The combined value of alcohol taken was $322.

6       About 90 minutes later at about 4.35 pm, the two of you drove to a convenience store in Hillside in the same car.  Cruz was wearing the same clothes but had removed his hat but still had the dark hoodie on.  You had removed the green t-shirt you were wearing during the armed robbery at Laverton.

7       Cruz initially opened the door to the store and looked inside with you slightly behind him.  Two young boys, one aged 14 and one aged nine, were inside the store, close to the exit.  You could both see them inside the store.  They could be clearly seen to anyone entering the store as they were approximately right in front of the entrance.  They were nine years old and 14-year-old cousins.  You briefly exited the store, having looked in from the entry point, but after about 10 seconds, Cruz re-opened the door and re-entered and you entered immediately after him.  Cruz's right-hand was outstretched at head height and he was holding an imitation firearm.  He passed the young boys, one of whom heard the firearm click as he passed - as he marched passed him.  Straight up to the store attendant at the front of the counter and you were right behind him.

8       Cruz walked behind the counter and grabbed the woman by the collar, while pointing the handgun at her head, forcefully and demanding money.  You immediately began to grab armfuls of cigarette packets and Cruz continued to manhandle the female attendant shoving aggressively the firearm at her head demanding money.  She yelled, armed robbery in Vietnamese and at that her husband who was in the rear of the store, rushed out to help out.  Cruz continued to hold the firearm at her, and she opened the case register and he took what is believed to be about a thousand dollars in cash.  You also grabbed cash.

9       The two young boys had found an appropriate time to slip out of the entry door and when Cruz saw the male attendant near the counter, he walked over again and pointed at the female attendant while yelling out.  When the store alarm was activated you then finally ran out of the store, got into the car and drove off.

10     After this second armed robbery, you returned to Cruz's premises in Laverton, and you drank alcohol there and you left at about eight or 9 am, the next morning.  By the next day the police had identified the car and its registration details and a search warrant was executed at Cruz's home address in the afternoon.  No persons were present there.  A significant number of items were seized including items of clothing in the vehicle, a number of cans of alcoholic drinks, unopened packets of cigarettes, and emptying firearms magazine, work boots and a black imitation Glock handgun.

11     Forensic evidence conducted on a car found - sorry on a can found in the car, linked that to you.  The cap worn by Cruz was located in the boot of the car, the handgun was confirmed to be a Gel Blaster imitation firearm, not capable of discharge.  The evening of the 12th at 9.15 pm, Cruz went to the Altona police station and handed himself in.  He was wearing the same shorts worn during the offending which the police seized. 

12     He was interviewed and made admissions. He told police he didn't recall all that had occurred because he'd been on a drug bender.  He told police he had used cocaine the previous Thursday and then took ice until Sunday afternoon, that very day.  He accepted the description of events at the bottle shop and that he'd taken the plates off his father's car.  He admitted, he was the person with the gun, depicted in the bottle shop.  You told the police the firearm - sorry, he told police the firearm was a fake Glock 19 replica which could shoot ball bearings and that the offending had been spontaneous.  He admitted also being the man depicted with the firearm on the footage from the convenience store where he'd committed theft, in between the two-armed robberies and that the firearm seized from his home was the one he used in both robberies and he was remanded.

13     During your record of interview, you made full admissions to all offending.  You stated that the co-offender had been talking the whole day about committing the armed robberies.  You stated that you knew Cruz as Eric.  You said you didn't want to do it and that the co-offender had the gun out and was calling you a 'bitch'.  You stated that you had been drinking and the co-offender had taken drugs.  You admitted to taking cocaine and drinking alcohol.

14     In relation to the Bottle-O in Laverton, you said that prior to arriving, whilst in the car, Cruz had told you in the car, to grab the drinks, and that if anything went wrong then he would just wave the gun around.  You then said that Cruz told you to put on gloves, so nobody sees your fingerprints, and you wore your work clothes.  You stated that whilst in the store, 'The lady tried to grab me, so the co-offender pulled out the firearm and pointed it at her before pushing her.'  You said, that he wanted to - that you wanted to go home but that the co-offender had told you that you would do one more and that he knew of a place in Hillside that was an easy to do.  You again said, that the co-offender had told you to get the cigarettes and that he would wave the gun around if anything happened.

15     You stated that you didn't want to do the armed robbery in Hillside because there were children inside, but that 'It happened so fast.'  You stated that the co-offender put the gun in the faces of the shop owner and another female and that after the armed robberies you returned to the co-offender’s address in Laverton and there you continued drinking, and then left the following morning to attend a funeral.  Throughout the interview you said you didn't want to participate in the offending, but that you were too scared to leave.  You did however state that at one stage you said to the co-offender, 'Well go do it, if you want?'

16     When asked why you didn't leave when opportunities presented, you stated that the co-offender knew your family and you were scared of the repercussions.  You stated, you were not aware if a firearm was loaded and that the gun looked real.  You stated that Cruz spent the money on drugs and that most of the cigarettes were given away.  He was sorry and 'that's not me, I don't like doing stuff like that, I don't like harming people.'

17     About 7.30 am on 13 January, you had gone to the police station at Altona, after the police had contacted you.  You were then arrested and interviewed in the fashion which I've just described in summary.

18     Three victim impact statements were received by the court.  The first was from the female attendant on the convenience store.  She wrote that as a result of the armed robbery life is very different for her now.  She was very scared and is now hypervigilant and easily startled.  She has experienced increased anxiety around people and places with loud noises.  She has not been able to work alone and sudden entries into the store leave her dizzy, nauseated and frightened.  She had to resort to medication to sleep and required psychological therapy sessions to deal with intrusive flashbacks and memories.  She remembers Cruz saying, 'I'm gonna kill you if you don't give me the money.'  And she heard a clicking sound from the gun.  Doors and security locks have been installed for added safety to the store.

19     The two young boys who were in the store also wrote victim impact statements.  The older of the two writes that he was not scared to leave his home by himself before these events, but that has now changed.  His school work was affected, as was his focus on consequently his school grades.  He described himself as more anxious, sadder and cautious, his life too, has changed.  His sleep is disturbed by frightening dreams and the counselling he too has received, seems not to have helped him so far.

20     The younger of the boys wrote that he was really scared when it happened.  He ran to a friend's nearby home.  He noticed he was numb with shock and shutdown.  He still has trouble sleeping and has nightmares.  When he returned to school, he couldn't concentrate and his thoughts were filled with the robbery.  He is seeing a school and a private counsellor and taken up Taekwondo to feel safer.  At home he is hypervigilant and generally feels unsafe when out and at night as well as in his own home.

21     This is very serious offending.  When one considers the circumstances, they demonstrate the objective gravity.  Each of these following elements and their combination are demonstrative of that gravity.  You wore clothes to disguise your identity including gloves and head and face coverings.  They were dark in colour.  The number plates on the car were removed in order to ensure it would not be recognised by anyone.  That the removal demonstrates a number - demonstrates a degree of planning and foresight and at the very least when midway between the first and second armed robbery, you became aware of this fact, because you handed them to Cruz to obtain petrol, for which he failed to pay.

22     You acted in company to effect these crimes with an accessible and authentic looking firearms - see photo 322 of the depositions.  Your co-offender pointed the firearm at close range and frequently pressed it against the head or face of each of the two attendants and forcefully aggressively manhandled each of the young women.  You must have been aware of the presence of two children in the convenience store, and went ahead with the terrifying display, while your partner in crime was armed to affect the robbery.  Importantly, as you admitted, in your interview with police, you had opportunities to withdraw on a number of occasions and failed to do so and you were aware Cruz was armed beforehand and was going to use the firearm to commit the armed robbery. 

23     The offences were brazen, frightening and the kind of conduct which would have been terrifying to the victims.  This is behaviour which would cause dismay and consternation to the community at large.  Although the armed robbery occurred in daylight, your victims were vulnerable and relatively isolated, which you knew, because Cruz had told you they were an easy target, operating small businesses in the environment of suburban strip shops.  The offending was spontaneous as asserted by Cruz because it was linked a drug rage.  But it had been spoken about the whole day, as you told police.

24     The immediate production of a firearm to the attendant grabbing you, and then the immediate display upon entry was unhesitant use, there is nothing spontaneous and therefore mitigatory in this response, or ameliorating in your culpability.  You voluntarily used alcohol and drugs and neither provides an excuse nor an adequate explanation for this criminal conduct.  Both the armed robberies were in the daytime and of relatively short duration, and no injury appears to have fortunately inflicted, but these are simply matters that go to the lack of further aggravation.  The firearm may have been an imitation, but nevertheless the victims did not know that, and the capacity of that imitation firearm to terrify and to inculcate fear was undiminished by that fact.

25     It does not matter that you were not the one wielding it, you were acting together under a common purpose with Cruz.  Armed robbery is a very serious offence.  The legislators have indicated its gravity by a maximum penalty of 25 years' imprisonment.  In the context of a synthesis of factors, this is an initial yardstick with which I begin my consideration of an appropriate sentence.

26     The armed robberies were committed in company, and that being so, they are category 2 offences under the Sentencing Act and require a court to impose a custodial sentence.  During the plea, no arguments were in effect raised as to the exceptions contained in s5(2H) of the Act, which allowed the special circumstances to overcome the presumption of a term of imprisonment.

27     It was rightly conceded by the defence upon your plea that these are very serious offences, and it was submitted however, that yours was 'a lesser role'.  And that your moral culpability therefore is not as great.  Although some of the matters outlined may properly describe the lack of certain conduct specifically as having been committed by you, like the lack of physical contact with the victims.  The lack of threats to the victims by you and that it was not you that actually wielded the firearm.  These aspects do not make for a lesser role in the offence, rather a different role.  Counsel conceded that there was no duress upon you, reliant on, and that any fear of reprisal was an impression that may have been formed by you about your accomplice.  No threat had been made to you by Cruz and despite these impressions, if you had formed them, you went ahead, not just in one, but two armed robberies.

28     'Acting under direction' of Cruz provides no amelioration of your conduct.  It is true that the CCTV footage in relation to the second robbery shows you in brief conversation exchanges, just prior to the robbery.  And you assert you briefly tried to dissuade the co-accused from going ahead.  It appears to have been a momentary consideration, given that immediately thereafter the entry is affected without evident hesitation.  As to not having been the 'mastermind' of the offending, the complicit nature of your participation and the physical conduct belies anything but a voluntary and intentional act on your part.  I do not accept therefore that your role was lesser or that your moral culpability is reduced by any of these matters.

29     I take your plea into account.  A plea offer was made by a timely fashion and by June 2022, a straight hand up brief committal took place at which you pleaded guilty.  I consider that this is an appropriately early plea.  You will be given credit for your plea, it will reduce your sentence.  Your plea has a utilitarian value, in the sense that it has avoided a criminal trial and it has intended costs and stress to witnesses.  I accept that it is accompanied by remorse.

30     In the references that have been tendered on your behalf, and in a psychological report authored by Ms Ferrari, and in answers in your police interview, can be found consistent expressions of regret and remorse at your conduct.  You have expressed appropriate empathy with the victims, and have become emotional when discussing the impact of this offending.

31     You attended voluntarily at police station, once you were contacted.  You were cooperative with police and the plea is also valuable as it is made in a time of pandemic in which the delivery of outcomes by the criminal justice system has been made difficult.  It was a plea which in view of the seriousness of the offences, would inevitably have exposed you to incarceration, at a time when prospects of reclusion are made worse and more burdensome than usual by the pandemic.  It will impact by way of lockdowns from time to time, restricted services, unavailable work and educational opportunities, restrictions of movement and in-person visits and the present threat of contagion in the closed confinement of a prison.

32     The Court of Appeal in Worboyes v The Queen [2021] VSCA 169 and Chenhall v The Queen [2021] VSCA 175 have directed courts to give greater weight or discounts to those who plead guilty in these times, in which the process of the criminal law has become congested and delayed. Your plea therefore assists the administration of justice and a pulpable amelioration of sentence must follow.

33     I take into account your personal circumstances.

34     You are 27 years old, you were 25 at the time of the offence.  You were born in New Zealand to Samoan parents.  You have two half-brothers and a younger sister, with whom you have a good relationship.  Your parents separated in 2005.  Your father was violent towards you, your mother and siblings.  Your older brothers and grandmother relocated to Australia.  Followed by you and then by your mother and sister.  A number of cousins already resided here which assisted in this transition.  You are a citizen of New Zealand, with permanent residence in Australia.  You were 10 when you arrived.  Your mother worked in administration, and you had a good relationship with her.  You have no relationship with your father, he may still be in New Zealand.

35     Your mother re-partnered when you were about 12 years old and your stepfather was also abusive to your mother.  That relationship didn't last long.  She was diagnosed with cancer in 2014.  You became her primary carer until her death in 2016 by a motor vehicle accident.  Your grandmother is in poor health and has dementia.

36     You completed high school in Australia to Year 12, but did not finish your HSC, then gave up work at a warehouse to look after your mother.  At school you struggled with behavioural and attention issues.  You were diagnosed with ADHD and during Year 4 and 5 you were medicated.  You struggled with academic requirements.  You were often absent from school and truanting.  After 2016 you worked loading containers.  This was for about two and a half years during which you got a forklift licence.  Another two and a half years, you were working in cold storage, but COVID-19 made the continuity of work difficult.  I think the reference to HSC should be to VCE.

37     Several days prior to the offending, you had lost the job at a cold storage facility for being late.  You have seen to work full-time hours as a casual for a furniture removalist company since 2022.  This work history such as it is, is to your credit.  I was told that your offending was connected to the loss of this job, in that it caused you embarrassment as a result of which you did not go back home to the resident of your aunt and uncle where you were living.  You need a place to stay and this led you to meet a mutual friend at Eric Cruz's house.  There you drank some alcohol and used cocaine.  You had lived with your aunt and uncle for about a year, and felt that without work you would be a burden on them.

38     A close family friend had died just before this time, and this bereavement may have caused you to engage in behaviour which together with alcohol, drugs and displacement out of your own environment, you fell in with this foolish enterprise.  When Cruz went to purchase more alcohol without money, that was the genesis for the first armed robbery, which he encouraged you to participate in.  You returned to his place of residence and drank more alcohol.

39     When you were assessed by Ms Ferrari, a Forensic Psychologist, you told her that the presence of the firearm made you scared and you were persuaded to go along with a person who was aggressive and insistent and to your observation, erratic and unpredictable.  This was said to have been some explanation for your participation, but it was conceded this was an impression as I have mentioned before, which did not provide an excuse in any shape whatsoever.

40     You stayed again at Cruz's place that night and left the next day.  You felt remorseful and couldn't sleep.  You had suicidal ideations.  Ms Ferrari, in her report, dated 30 October 2022, noted your relationship history.  You have only had one relationship with your current partner, Bianka, with whom you had been friends from the start of 2022.  You had resided, before your remand with her and her mother and her sister.  She remains supportive and is a positive influence. 

41     Before conducting some mental state evaluation, Ms Ferrari noted your medical and mental health history, which included untreated depression and anxiety, particularly in relation to this sentencing outcome.  You believe that you continue to feel the effects of the ADHD which was diagnosed in primary school.  You continue to struggle with tasks and concentration.  You are forgetful and easily distracted.  You express sadness for the victims and their families.

42     You began drinking alcohol around Year 11, and after your mother died this escalated further.  You also began smoking cannabis but have not used it since 2019.  Apart from the cocaine the night of the offending, you denied using any other illicit substances.  You have a prior criminal history which is affinitive to one appearance in August 2019, when without conviction you were fined as required to be of good behaviour for theft from shop and a motor vehicle offences.  This is a relatively brief criminal history, which is relevant in assessing your prospects of rehabilitation which I consider to be good.

43     Ms Ferrari's mental state examination indicated a moderate level of depression, aggravated by suicidal thoughts.  You were experiencing mild symptoms of a generalised anxiety disorder.  Though Ms Ferrari had noted a positive mood, in the light of your circumstances, although appearing dysphoric particularly as to the impact of the sentence and your relationship and your partner.

44     She administered the Millon inventory, a self-report questionnaire to assess clinical syndromes concerned in personality traits and disorders.  The results reached clinical significance on only one personality pattern.  That is Dependent Personality Disorder, which is consistent with your passivity and submissiveness.  Other moderate traits were explained at paragraphs 80-82 of her report, in relation to borderline personality patterns, accompanied by moderate elevation on the anxiety, Post-Traumatic Stress and depression scales, as well as alcohol use scales.

45     These traits will at times affect your functioning and behaviour.  Ms Ferrari expressed her opinion at paragraph 87 and following, it is clear from her assessment, that apart from a persistent depressive disorder and evidence of PTSD, though at sub-clinical threshold, the use of substances would have reduced your self-inhibition and self-control, manifesting in reckless, impulsive, poor decision making.  Addressing these mental health conditions and use of substances as a form of self-medication are crucial to your rehabilitation.

46     Ms Ferrari also made a risk assessment, paragraphs 98 and following.  Your risk profile indicates that your future pathways to violence would be mental state deterioration in the context of overwhelming stressors, lack of support with alcohol abuse exacerbating that risk, possibly where you are more susceptible to complying with demands where you perceive a potential threat to your safety or your family's.  She classifies it as low to moderate risk range.

47     You displayed positive attitudes towards intervention and supervision and are open to treatment.  There is no previous history of violence and pattern of anti-social behaviour and attitudes supportive of violence.  There is no indication despite your persistent and major depression of suicidal behaviour or requiring hospitalisation, and these indicators neither support psychotic symptoms, nor severe personality disorders such as borderline paranoid or schizotypal personality, nor anti-social traits.

48     Ms Ferrari opines that the prison environment can exacerbate your symptoms profile and, 'risk of decompensation'.  A term which I find difficult to define.  She expresses the view that your depressive symptoms of a moderate severity may result at risk of - that you may be at risk of deterioration, resulting in a substantially greater than ordinary burden whilst in prison.

49     She comments on the likely unavailability of adequate treatment and appropriate medication in the custodial setting and she recommends psychological treatment, specialised counselling, ongoing employment and transitional support after a custodial sentence to ensure continued engagement.  I take this detailed report into account.  I rely primarily on this report to enliven limbs 5 and 6 of Verdins.  In my view, there are sufficient reasons and elaborations in her report pertaining to your state to bring these two limbs into operation.  No other limbs were relied upon your plea and it is not argued that these conditions reduce your moral culpability.  The prosecution argued before me that limb 6 was not satisfied, I disagree with this submission.

50     The court also received a number of references on your behalf, which I've read and taken into account.  The first was from Amos Fa’ aosofia, your older brother.  He came to Australia from New Zealand in 2001, he spoke of your regret and remorse, he speaks of you as a caring and compassionate person who has a good work ethic, having now had a job as a production worker for three to four years.

51     

The second was from Mr Koray Ugur Cetinaslan, Director of KC Transport, your employer and friend.  He's known you for six years.  You, he says are a reliable, punctual and committed worker.  He writes you are humble, respectful and remorseful.  He indicates his future assistance with work opportunities. 

Bianka Cagorski

your partner, also writer on your behalf, before your remand you lived with her and her family, she writes of your stability in employment and your remorse and empathy for the victims.  She writes of your efforts to support family and friends and of your goals to own a home and have a family in the future.

52     Ana Miskovic a teacher and friend, since 2021 writes of your caring qualities.  You spoke to her of the offending with shame and regret.  You have helped her last year in relation to some personal matters and she holds you in high esteem.  She writes of the impact of your - on your conscience of these offences and of you as a trusted and compassionate person.

53     Kelly Orellana, met you in early 21 and considers you a very close friend.  You are said to be kind hearted, loyal and genuine.  She supported your relationship with Ms Cagorski.  And finally Catherine Fa’aosofia, your sister-in-law wrote a reference.  You were said to be quiet with a good sense of humour. Each of these writers writes of you in shock at hearing of our offending in this manner and your shame and regret, not only for yourself but for the victims and how out of character this conduct is.  I take all of these impassioned and impressive letters into account.  They indicate that you have a network of family and friends that are supportive, and who are likely to assist you when you return to the community.

54     Two further significant matters are relevant in your case.  The issue of parity and considerations concerning the possibility of deportation.  As to parity of comparative analysis is required in relation to your co-offender Cruz Valaskis who I sentenced for the same offence, but also for some other charges which he only faced.  This analysis is essentially required to ensure a measure of consistency and equal punishment.  In my view the sentence imposed on Cruz has a relevant input into the sentence you are to receive.  Sentences need not strictly compare, however, but should be rationally based upon any reasonable differences which can provide a basis for a difference in disposition, which would allow for a distinguish in your sentence from his, if that is to be the appropriate outcome.

55     Relevant differentiating considerations here are the fact that Cruz faced additional charges of theft, being a prohibited person in possession of a firearm, and unlicenced driving.  In his case, the theft charge and the firearms offence, carried three months of cumulative imprisonment, upon the armed robbery charge base sentence.  Your age at the time of the offence was similar to Cruz being 25 and you were similar 25 years old.  It was considered that although practically different, your role simply provides a basis for differentiation in that sense, but does not bespeak of a different sentence.  However, it was submitted your personal circumstances, the application of the - of some Verdin principles, and the issue of deportation, do provide a justification for a lesser sentence.

56     In both of your cases the Bugmy principle was not out enlivened, and you have similar backgrounds which I have considered in detail.  Mr Cruz has slightly more extensive priors than those I have outlined in your case.  He has a prior for assault, where the victim was his partner, as well as possession of a drug of dependence, and a charge of threat to kill in 2020 where he was placed on a Community Corrections Order which I was told was in contravention.  I consider that your mental health situation is more difficult than his, although he faces challenges with his anger and drug use.

57     Verdins as I have said was not relied on in his case, which is an important distinguishing consideration.  Both your pleas were appropriately early in time and were accompanied by remorse.  Both of your prospects for rehabilitation are reasonable or good.  The totality principle applies equally in each of your cases to ensure that on the one hand the separate and discreet nature of the armed robbery offences is properly acknowledged, calling for a period of cumulation.  And on the other hand the sentence is an appropriate and a proportionate disposition, which gives primacy to general deterrence, denouncement and just punishment.

58     In both of your cases your relative youth means that prospects of rehabilitation are not extinguished and that his position should reflect this and not crush such prospects.  The differentiation in the application of specific deterrence and the need for community protection is minimal.  These principles remain relevant in both of your cases, but are not as pronounced as general deterrence.  As opposed to Cruz who was convicted of making a threat to kill, that one month after the expiry of his Community Corrections Order for the drug and assault charges which was breached, you have been on bail on conditions which have not breached, including having a fixed address and reporting twice a week.

59     The prospect of deportation looms in your case.  Possible deportation in itself is in my view, not a distinguishing feature because irrespective of what might be understood, there's the likely determinations given your sentence in relation to your residency and visa status, these remain speculative and not matters upon which the court can guess.  However, as the authorities have made clear, some aspect of this issue impact on the disposition and these cannot only be taken into account, but in the context of parity do allow for a basis of distinction, between your sentence and your co-offenders. 

60     The prospect of deportation triggered by cancellation of your visa, following the court's sentence, means that in all likelihood as a matter I accept, you would experience imprisonment with a significant greater burden, than someone upon whom this serious predicament is not applicable.  The second aspect is that consequentially this would mean the likely loss of the opportunity of continuing to live permanently and settling in Australia, given particularly your new history of life in this country with the significant members of your family and relationships and work you have forged over the last number of years.

61     This I accept would have a great and difficult impact which would render your reclusion particularly burdensome.  In my view of your personal circumstances, I consider that this would actually, and in all probability, be a hardship upon you.  This mitigatory factor must be weighed against the seriousness of the offending, but nevertheless I consider it of some mitigatory weight as a punishing consequence of the offending and also relevant to the parity principle applications.

62     Prosecution probably conceded during the plea, that the court should consider the prospects of deportation, see Guden v The Queen [2010] VSCA 196, Konamala v The Queen [2016] VSCA 48 and Matamata v The Queen [2021] VSCA 253, where the applicable principles were discussed. The potential for deportation is naturally difficult to calibrate in terms of moderation of sentence, but it must do so to an appropriate extent and in this case inform the application of parity principles as well.

63     I make clear that it is not the cancellation of the visa itself, nor consequent deportation which constitutes the matter of punishment for the offending.  Given that these are at the command of the executive, I conclude from these matters that both a certain mitigatory impact will flow from the aspects or the prospect of deportation I have outlined, and consequently they will impact in reference to parity to reduce the sentence by comparison to your co-offender.

64     In relation to armed robbery, Charge 1, you are convicted and sentenced to three and a half years' imprisonment.

65     In relation to armed robbery, Charge 2, you are convicted and sentenced to four years.

66     I order that nine months on Charge 1, be served cumulative of Charge 2, that is the base sentence.  That is a total effective sentence of four years and nine months.  I order a non-parole period of three years.  I declare that a period of 118 days have been served by way of pre-sentence detention, and I will note that number for the records of the court.  But for your plea, I would have sentenced you to six years' imprisonment, with a three year and 10-month non-parole period.

67     Ms Byrne are there any ancillary orders?

68     MS BYRNE:  No, Your Honour.

69     HIS HONOUR:  Yes, thank you.

70     MS KELLY:  If Your Honour pleases - - -

71     HIS HONOUR:  Ms Kelly I note that there's a live connection to Marngoneet where your client is and if you wish to speak to him, unless you have made other arrangements, I'm happy to step down and vacate the court for that purpose.

72     MS KELLY:  Thank you, Your Honour, that would assist.  I, yes, would appreciate that, thank you.

73     HIS HONOUR:  That's fine we will sever the links to the other people that are linked into today, and allow you and Armstrong to speak privately.  Yes, thank you.  I'll stand down.

- - -