Director of Public Prosecutions v Ioane Afa

[2024] VCC 823

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-24-00192

DIRECTOR OF PUBLIC PROSECUTIONS

v

NORMAN IOANE AFA

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2024 and 29 May 2024
DATE OF SENTENCE:	5 June 2024
CASE MAY BE CITED AS:	DPP v Ioane Afa
MEDIUM NEUTRAL CITATION:	[2024] VCC 823

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Plea of guilty - armed robbery in company on Flinders Street Station - use of a knife - 16-year-old victim - more than $1,000 worth of property stolen - substantial impact on victim - moral culpability significant notwithstanding some moderation due to depression and anxiety - risk of deportation - no substantial and compelling, exceptional and rare circumstances under s 5(2H)e.

Legislation Cited: Migration Act 1958 (Cth); Sentencing Act 1991 (Vic).

Cases Cited:Farmer v The Queen [2020] VSCA 140; Fariah v The Queen [2021] VSCA 213.

Sentence:                  Total effective sentence 34 months imprisonment with a minimum non-parole period of 18 months.         

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. Brydon	Office of Public Prosecutions
For the Accused	Mr W. Blake	Chris McLennan & Co

HIS HONOUR:

1Norman Ioane Afa, you have pleaded guilty to one charge of armed robbery, for which the maximum penalty is 25 years' imprisonment. Because this armed robbery was committed in company your offending is a category 2 offence, and I must impose a custodial sentence, not including a combination sentence of imprisonment and a CCO, unless one of the circumstances set out in paragraphs s5(2H)(a)−(e) of the Sentencing Act 1991 applies.

2

You have no prior convictions.  You are now 24 years old.  Your birthdate is

in July 1999.  This offence was committed in the company of three other offenders, all of whom were under the age of 18.

3One of the co-offenders had his charges struck-out on 27 February 2024, another received a diversion for a charge of Committing an Indictable Offence on Bail and the third co-offender's case is still pending.  Given the co-offenders are children considerations of parity are not applicable here, and nor was any submission made in respect of parity.

4The victim in this case is Mr Kupucu.  He was 16 years old at the time of the offending.  On 1 October 2023, you and your co‑offenders were on platform 4 at Flinders Street railway station.  You were riding a black scooter.  The victim was sitting on a bench on the platform with a friend simply waiting for a train to arrive.

5You and the other co‑offenders approached and surrounded him.  You pulled out a large knife with a grey handle and silver blade and demanded the victim hand over his Gucci bag.  You said to him, 'Take it off now or I'll chin you'.  The victim took this to be a threat that you would stab him if he did not hand over the bag.  One of the co‑offenders reached into the victim's pocket and removed his mobile phone, and then demanded the victim disclose his Apple ID and password.  The victim complied because he was frightened force would be used against him.

6The property stolen was an iPhone 12 valued at over $1,000; a Gucci bag; and Airpods.

7Before your group left, one of you asked the victim and his friend, 'Who do you rep?', which the victim and his friend took to be a question about whether they were gang affiliated.  The victim's friend told your group, 'We don't rep anyone.'

8The victim and his friend immediately reported the incident to police at Flinders Street station.

9You and the others were located at around 9.15 pm on Elizabeth Street.  You were arrested and searched.  The knife was located nearby in bushes.  The Airpods were found in the possession of one of the co‑offenders.

10You were interviewed at Melbourne West Police Station.  You denied participating in the armed robbery.

11

You have been in custody now on my count for 249 days since your arrest on

1 October 2023.

12The prosecution conceded in their submissions that there was some residual impact of the pandemic on conditions in custody during the early part, or during your period on remand, and I take that into account in this matter.

13A victim impact statement was provided by Mr Kupucu.  He said that at the time this offending occurred he felt shocked, scared, frightened, and confused.  He felt he could have got hurt.  He said that after the event he could not go to school for two weeks, he could not sleep for a couple of weeks.  He said he waited for sunrise each morning, making sure his mother was up, and then he would go to sleep.

14He said he stopped going out with his friends and he was very anxious each time he had to step outside.  He said he stopped going to soccer training and to any match.  He said his eating was bad, he lost his appetite, and he lost weight.  He said he used to stay at home alone, and he cannot stay alone by himself anymore.  He says he does not feel comfortable in his safe places anymore, and that he is paranoid in his own house.  He said an unfamiliar car driving past or someone doing a burnout in the street concerns him.

15He said the offending has affected his social life and friendships because he does not want to go out.  He said that the loss of his mobile phone was the loss of something special to him because he had a lot of photos, videos, memories and personal information on it.  He said that he had to see counsellors at his school, and every time he was in contact with the police, he felt concerned and relived the trauma.

16He has not been able to use public transport on his own because he is fearful.  He is looking forward to security cameras and shutters being installed in his home, and he is looking forward to being able to stay at home alone again and getting a full night's sleep.  He suffered anxiety and he is looking forward to a period where he does not have anxiety, and he hopes his mother will overcome the trauma and be less anxious.  That is a summary of what he said in his victim impact statement. It is plain that this offending has had a significant ongoing impact on him.

17Armed robbery is an inherently serious offence as reflected by the maximum penalty of 25 years' imprisonment.  I accept the offending in this case was unsophisticated and I accept unplanned, although you were carrying a knife with you in public on that day.

18An aggravating feature of the offending is that it was committed in company with co-offenders.  The offending was somewhat brazen, occurring in a very public space, Flinders Street station, where people must be able to feel safe. The offending was not protracted, but it was not fleeting. You and the co-offenders took some time to obtain the victim's property.  The victim was a young person just 16 years old at the time of the offending. He was understandably very scared by your behaviour, which has had ongoing psychological impacts on him.

19You pulled a knife on a 16-year-old whilst he was waiting for a train and you, and your co-offenders took more than $1,000 worth of property from him.  In my opinion you took the principal role in the offence (producing the knife), which is not surprising given you were substantially older than the co-offenders.  In the circumstances, although there are some factors which moderate the assessment of your moral culpability, your moral culpability nonetheless remains significant for this offending.

20You were born in Auckland, New Zealand.  You are the third eldest of 10 brothers and sisters, some of whom are half-siblings.  Your family migrated from New Zealand to Australia when you were 15 years old in 2014.  The purpose of moving to this country was to avoid you and your siblings becoming involved in gangs in West Auckland due to some affiliations with gangs in your extended family.

21Your mother, Nancy, works in disability support, and your father is a truck driver.  Your family remains strongly supportive of you, and they have been in consistent contact with you during your time in custody.  Your family attended the plea hearing to support you and they are present here today as well.

22The family settled firstly in St Albans and then moved to Deer Park.

23You completed Year 11 at Victoria University Secondary College.  Since leaving school you have worked in several different unskilled labour roles, including warehousing, forklift operation, and other labouring for tradesmen.  You would like to commence an apprenticeship as a carpenter when you are released, and you are in the process of obtaining a certificate in building and construction.

24You have a drug-using history which started when you were 16 years old, mainly using cannabis and alcohol.  You have also abused prescription medication, mushrooms, and LSD.  At the time of this offending, you were abusing benzodiazepines.  In prison you have completed various programs relating to your rehabilitation.  I was told you are waiting for drug-specific counselling and treatment.  I have been provided with several certificates relating to the courses that you have done in custody.

25You gave an account of your substance abuse to the psychologist who assessed you, Mr Ian McKinnon, and to the mental health clinician who provided a MARS report to me, which came along with the community correction order report I ordered. You told the authors of those reports that you continued to misuse substances up until when you were remanded in custody for this offending.

26To Mr Beresford, the mental health clinician, you said that you estimated taking four to six Xanax tablets and between eight and 12 cans of beer every day, alongside an unclear amount of cannabis, usually in a social context with friends.  After your incarceration you went through a withdrawal of around two months, which involved persistent insomnia, which is consistent with substantial benzodiazepine use. You also made a clear connection between your drug use and offending.

27You describe witnessing gang violence growing up in New Zealand, and you were apparently present and witnessed the incident involving James Gargasoulas in Bourke Street in 2017.

28You returned to New Zealand in 2022 because your mental state had declined after you broke up with your girlfriend who you had been seeing since 2016.  You came back to Australia in March 2023.

29Mr Ian McKinnon, forensic psychologist, provided a report dated 8 May 2024.  He assessed you on 16 February 2024.  Mr McKinnon says in his report that you appear to be suffering from mixed depressive and anxiety disorder (MDAD).  He says you labour with very strong social anxiety, anger management problems, sensitivity to personal rejections and slights, a tendency to go out of your way to impress others and oppositional defiant traits and social and criminal tendencies.  Mr McKinnon says your background experiences have contributed to your substance abuse issues which has inculcated you into an antisocial and criminal milieu in which you have sometimes acted antisocially to gain acceptance and status.  He says that your mixed depressive and anxiety disorder and your substance abuse disorder, 'made significant contributions to his offending by degrading his ability to apply good judgement and sound reasoning, weakening his self-discipline, fuelling self-destructive impulses, and degrading his ability to apply responsible and consequential thinking'.

30You said the following to Mr McKinnon about the offending, 'I was on benzo's with alcohol.  I just spun out in the moment.  It was a dare, I was depressed, using benzo's and alcohol too much.  Just stupid shit, I never should have got involved in.  I can't even remember much of what happened.  I can't remember going there'.

31Mr Blake submitted that the principles in the case of Verdins apply to you.  He submitted that your moral culpability is reduced and there should be a reduction in the weight to be given to general deterrence and specific deterrence.  He submitted that a sufficient causal connection between your mental state and the offending has been identified by Mr McKinnon. The prosecutor, Mr Brydon, submitted that there is a basis to allow for a reduction of moral culpability and general and specific deterrence. He submitted though that there is no evidence that principles 5 and 6 of Verdins’ relating to the burden of your imprisonment apply.  Mr Blake did not submit that principles 5 and 6 had application, and I accept there is no evidence to apply those principles.

32The psychological material identifies multiple contributing factors to your offending.  There are your antisocial and criminal tendencies and your substance abuse to consider.  It is difficult to evaluate what direct contribution your mixed depressive and anxiety disorder played in your decision to commit the armed robbery on platform 4 of Flinders Street station in October last year.  Plainly in the account of the offending you gave to Mr McKinnon, substance abuse played a major role.

33However, I am prepared to accept your depression and anxiety have played a role in your substance abuse disorder and your antisocial tendencies and consequent association with a criminal milieu which are the background to the offending in this case; and further that on the day of the offending your mental state played some role in your impulsive decision to commit the offence.  I allow for a modest reduction in your moral culpability based on your mental state and a modest reduction in the importance of general deterrence and specific deterrence.  In my view, whilst your mental state played a role, your substance abuse and other factors were at play as well.

34References were tendered from your mother, Nancy, and your father, Asotolu.  Your mother speaks about your anxiety and depression which triggered your use of alcohol and benzodiazepines.  Your parents saw the change in you and sent you back to New Zealand because they thought that would help you.  However, you wanted to come back after three months.  She says one of your fears is that you might be deported to New Zealand.  She hopes that does not happen because they (your family) are your greatest support in Australia.  She says in her reference that you look healthier now than you did before you were remanded in custody.  She says that your family will be devastated if you are deported.

35Your father, in his reference, says he noticed a change in you after you broke up with your girlfriend, although the breakup was due to your drug and alcohol use.

36I have also had regard to the reference from Benson Fakai, who says you are remorseful and that you are family-oriented person.  He regards you as a humble and kind-hearted person.

37You pleaded guilty to the charge on the indictment on the day the committal hearing was listed in this matter.  I regard that as an early plea of guilty.  The charges had resolved the day before.  No witnesses were cross-examined.  Your guilty plea indicates a willingness to facilitate the course of justice and it has significant utilitarian value.  By your plea you have saved the police, the prosecution, and the court the use of the resources required to run a trial.  Your plea indicates remorse. Although in the record of interview you denied the offence and it cannot be said you exhibited immediate remorse, I am satisfied that you now do have remorse.  Mr McKinnon said you presented as remorseful and expressed significant remorse.

38At 24 years old you are still a relatively young man, and the material suggests immaturity. You have no prior convictions.  In my opinion the principles relating to youthful offenders are relevant to sentencing in this case, although you are at the upper end of the age range for youthful offender, and they do not have the same force as they would have in the case of a younger offender, but nonetheless some moderation of general deterrence and specific deterrence is appropriate, having regard to your age.

Prospects of rehabilitation

39Mr Blake submitted that you have strong prospects of rehabilitation based on your age, the absence of prior convictions, strong family support, employment history, courses and treatment in custody, and insight and remorse in respect of the offending.  He also relied on your youth and submitted that given your age your rehabilitation must be a substantial goal in sentencing.

40Against that there are some obvious risk factors that apply to you. Your substance abuse issues seem well entrenched for a person of your age and a failure to deal with those issues presents an obvious risk of reoffending.  Mr McKinnon, in his report, refers to incidents of violence you have been involved in whilst in prison.

41He said this in describing your pre incarceration circumstances, 'Despite possessing useful abilities and skills, Mr Ioane Afa has apparently failed to maintain employment opportunities, his musical endeavours, and his martial arts training, and so he has often been idle, unemployed, habitually engaging in substance abuse, and mixing with other delinquent youth, whilst also avoiding his family'.

42He says you, ‘labour with social anxiety, anger management problems, sensitivity to personal rejections and slights, a tendency to go out of his way to impress others he wishes to bond with, oppositional-defiant traits, and antisocial and criminal tendencies.  In my opinion, Mr Ioane Afa has also developed a tendency to assert and define himself by aggressive and sometimes violent behaviour'.

43He concluded, 'In this context, Mr Ioane Afa poses a significant risk of committing further violent offences.'

44Ian Beresford, the mental health clinician who assessed you said, 'Mr Ioane Afa's early exposure to gang culture, violence, and trauma, along with his association with antisocial influences indicate a significant risk of reoffending'.

45In assessing the weight to be given to rehabilitation in sentencing I take into account your youth and the fact you have no prior convictions.  You do have time on your side, and you appear to be motivated to address the underlying causes of your offending, obtain employment, and lead a productive life.  However, given the assessment of Mr McKinnon and Mr Beresford it is clear have you some major hurdles you will have to overcome, and the risk of re-offending is real.  

Deportation

46You are not an Australian citizen.  Therefore, a sentence of 12 months or more will trigger the automatic visa cancellation provisions in the Migration Act.[1]  You would in those circumstances be at significant risk of deportation.  Of course, you have appeal rights against such a decision, and I cannot assume you will be deported.

[1] Migration Act 1958 (Cth).

47However, in accordance with the authorities Mr Blake submitted, and I accept that the risk of deportation has made and will make your time in custody more onerous.  Your mother in her reference indicated you were extremely worried about this, and you were worried about the impact of deportation on your family.  I have no doubt this is increasing the burden of your imprisonment.

48Moreover, you have now been here for most of the last 10 years and your family are settled here. They moved to Australia to reduce the potential that you or your siblings would become involved in gang culture in West Auckland.  If you are returned to New Zealand, you will be left without the support that you currently have in this country.  You will have lost the prospect of settling in this country which has been your home for the last 10 years. You have family back in New Zealand but your recent return there in 2022 was unsuccessful. You expected to remain in this country with your family.  This is an additional punitive consequence.

49However, it would be an error to artificially lower the sentence to avoid the consequences of the Migration Act.

50The risk of deportation is a significant mitigating matter in this case.

51Mr Blake submitted that the exception in s5(2H)(e) is enlivened by a combination of factors as follows:

(a)   you are a youthful person;

(b)   you have no prior convictions;

(c)   this is your first time in custody;

(d)   you have significant family support;

(e)   you are at risk of deportation;

(f)    that in his submission you have a low level of moral culpability for the offending;

(g)   your mental health contributed to the offending;

(h)   the difficult circumstances of your childhood, including exposure to violence in New Zealand;

(i)    demonstrated rehabilitation in custody;

(j)    genuine and profound remorse.

52He submitted that these factors in combination are exceptional and rare and substantial and compelling and therefore the mandatory provisions relating to category 2 offenders should not be applied.  He submitted that a sentence involving time served and a Community Correction Order was an appropriate sentence.  He also submitted in the alternative that if I am not persuaded of the exception a straight sentence of under 12 months is within the range.

53In determining whether there are substantial and compelling circumstances that are exceptional and rare, I must regard general deterrence and denunciation as having greater importance than any other sentencing purpose.  I must give less weight to the personal circumstances of the offender compared to other matters, such as the nature and gravity of the offence, and I must not have regard to the offender's previous good character, other than the absence of previous convictions or findings of guilt.  I must not have regard to an early guilty plea or the offender's prospects of rehabilitation.

54I am also required to have regard to Parliament's intention that, in sentencing for, a Category 2 offence that a custodial order, not including a combination sentence under s44 of the Sentencing Act should ordinarily be made.[2]  I must also have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such sentences.

[2] Sentencing Act 1991 (Vic).

55In the decision of in Fariah v The Queen [2021] VSCA 213[3] the Court of Appeal held that s5(2H)(e) does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare, rather that is an evaluative judgment for the judge to make once the relevant underlying facts have been established.

[3] Fariah v The Queen [2021] VSCA 213.

56The Court also said this about the test in s5(2H)(e):

‘We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e). Indeed, in our view, the applicant’s appalling childhood experiences, coupled with his youth and other and other factors relied upon, were sufficient in combination to engage s5(2H)e.’[4]

[4] Ibid [25].

57Of the factors Mr Blake submitted constitute substantial and compelling circumstances that are exceptional and rare, I would not characterise your level of moral culpability for this offending as low because in my opinion your mental state played only a limited role in your decision to offend in this serious way.  The reduction in moral culpability to reflect your mental state is therefore relatively modest and your moral culpability for the offending is otherwise significant.  Whilst I accept that you have completed courses in custody, and you are motivated to rehabilitate, it is apparent you from the psychological report that you have been involved in violent encounters in the prison and the assessment of your rehabilitative prospects by Mr McKinnon is cautious. Finally, I am satisfied you have a level of remorse, but I am not satisfied that the material establishes that your level of remorse is in any way out of the ordinary.

58This provision is severe.  In the case of Farmer[5] that was acknowledged, and the Court of Appeal said in that case there is no warrant to reduce the stringency of the test.

[5] Farmer v The Queen [2020] VSCA 140.

59Ultimately, having regard to the factors set out in the legislation, and considering the circumstances put forward on your behalf, I am not satisfied that the factors relied on in your case meet the statutory test as substantial and compelling circumstances or as exceptional and rare.

Sentencing principles

60For this offending community protection must be given substantial weight because as the prosecution submitted the offending was violent, committed against a stranger in a public place.

61Deterrence, both specific and general, are significant sentencing considerations owing to the nature of the offending but are of course moderated by your age and to an extent by your mental health.  Plainly just punishment is important in this case, and denunciation of this offending through my sentence also has a significant role to play in sentencing for this serious offence.

62In the end I have arrived at the following conclusion with respect to this sentence.  The sentence I impose for this offending is you are convicted and sentenced to 22 months' imprisonment, and I fix a minimum non-parole period of 11 months.  I allow 249 days pre-sentence detention to be deducted from the sentence that I have imposed.

63Pursuant to s6AAA I indicate but for your plea of guilty I would have imposed a sentence of 34 months with a minimum non-parole period of 18 months.  Those are the orders that I make in this case.  I will make the disposal orders.  No objection to those?

64MR BLAKE: No.

65HIS HONOUR:  Thank you.

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