Director Of Public Prosecutions v Jacob Rapana
[2024] VCC 76
•2 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01560
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB RAPANA |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 January 2024 |
DATE OF SENTENCE: | 2 February 2024 |
CASE MAY BE CITED AS: | DPP v Rapana |
MEDIUM NEUTRAL CITATION: | [2024] VCC 76 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Armed robbery – Bugmy Principles
Legislation Cited: s 5 Sentencing Act 1991
Cases Cited: R v Renzella [1999] VSCA 85 - Worboyes v The Queen
[2021] VSCA 169 - Bugmy v The Queen [2013] HCA 37 –
R v Verdins [2007] VSCA 62 – El-Waly v The Queen [2012]
VSCA 184
Sentence: Convicted and sentenced to 7 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Kelly | Office of Public Prosecutions |
For the Accused | Mr D. Rofe | James Dowsley and Associates |
HER HONOUR:
1Jacob Rapana, you have pleaded guilty to one charge of armed robbery committed on 20 March 2023.
2You have also agreed to this court hearing and pleaded guilty to the summary offence of failing to appear on bail.
Circumstances of offending
3The summary of your offending is outlined in the prosecution opening of 20 December of last year.
4In brief, on Monday 20 March 23 at 1.50 pm, your victim Jarod Breedon had his headphones on and was walking across the footbridge to get across the Frankston freeway. He was wearing a $65 pair of Quicksilver sunglasses that had been gifted to him. You were walking in the opposite direction towards him and stopped and tried to talk to him. He stopped, took off his headphones, you asked him in a polite tone for some money. He told you he did not have any. You were holding a plank of wood described as approximately 40 to 50 centimetres long and quite thick. You were holding it over your shoulder as if you were carrying a baseball bat.
5After Mr Breedon told you he had no money, you started to become aggressive. You told him he had nice sunglasses and wanted to take them and if he did not give them to you, you would hit him over the head. You asked him rhetorically if he wanted to get hit over the head. He told you ‘no’. You then snatched the sunglasses from his face and walked off towards the Frankston Central Business District.
6Mr Breedon went home and told his brother what had happened. He then reported the matter to police.
7On 22 March 2023, you were located by police wearing the stolen Quicksilver sunglasses. You participated in a record of interview where you made some admissions though suggested the glasses you had stolen were in fact your own.
8Following your grant of bail, you failed to appear at the filing hearing on 28 March 2023.
Victim Impact
9Mr Breedon provided a victim impact statement. He states that your offending has left him with, 'More anxiety’ and has affected or compromised his sense of safety. He states, 'I've been stressing more about going out as I have been feeling both anger and fear from what happened.' He also indicates that the stress and anxiety has impacted his sleep and his coping abilities.
Gravity of offending
10Armed robbery is an inherently serious offence as indicated by the maximum sentence. Your actions were brazen and confronting. As already noted, your offending has had a profound impact on your victim who was a complete stranger to you.
11I accept your counsel's submission that the offending was unsophisticated in nature and of short duration. Further, in my assessment of the gravity of your offending, I note you didn't wear a facial disguise, no actual physical violence was committed and you acted alone.
12Also, aside from the degree of planning suggested by your possession of the plank of wood, I accept that there is otherwise no evidence of planning or pre-meditation.
13In your discussions with psychologist Gina Cidoni, you denied being intoxicated at the time of the offending, stating that you had stopped using methamphetamine in the 12 months prior to the incident. Your circumstances at the time were unstable and you were experiencing homelessness.
Plea of guilty
14Mr Rapana, you are entitled to a substantial discount in sentence for your plea of guilty. It is not an early plea and the matter resolved after a contested committal hearing. I accept your plea of guilty reflects an acceptance of responsibility on your part, a willingness to facilitate the course of justice and carries important utilitarian value. Also, as discussed at the plea hearing, I give some weight to the heightened benefit of the plea in accordance with the Worboyes principles.[1]
[1]Worboyes v The Queen [2021] VSCA 169
Personal circumstances
15Your personal history was canvassed by your counsel and referred to in the report of Ms Cidoni of 14 January 2024.
16In brief, you are currently 29 years of age. You were born in New Zealand of Maori parents. They relocated to Australia and settled in Frankston shortly after your birth. Your mother was pregnant with you when she left your father. Your father lives in New Zealand and you have only had brief contact with him over the years. You have a brother and a sister.
17You experienced a difficult childhood with considerable instability. Your family struggled financially. When you were around six years of age, your mother re-partnered. While your step-father was a relatively stable influence, there was little supervision at home and also some physical discipline. I note the abuse you suffered at the age of 9 as referred to in paragraph 40 of Ms Cidoni's report. When you were 13 years of age, Child Protection became involved and placed you with a foster family in Narre Warren until you were 18.
18Your step-father passed away when you were around 23 and you have not seen your mother who now resides in Sydney for several years. After leaving foster care, you also ceased contact with your foster family.
19Over recent years, your accommodation has been unstable and you have lived transiently, at times couch-surfing, living rough or residing in boarding houses. As already noted, before your remand in July of last year you were homeless.
20Your education and work history are both relatively limited and have been disrupted. During your period in foster care, you attended Berry Street School for about four years and completed Year 8. You struggled academically and it seems were diagnosed with a learning disability. Your limited employment history includes part time work chipping bricks for a month, a week of roof tiling and casual farm work with a friend.
21As for your medical history and mental health, Ms Cidoni notes that you have suffered various head injuries in the past, while diagnosed with a learning disability in your primary school years, as an adult you have not reported any other diagnosis. You currently experience anxiety, and have a history of depression. Ms Cidoni concludes that you present with persistent depressive disorder with anxious distress.[2]
[2]Report of Psychologist Gina Cidoni, dated 14.01.2024, paragraph 84
22In respect of drugs and alcohol, from around the age of 12 you started to drink and in the lead-up to your arrest, you report drinking excessively. At the age of 14, you started to use cannabis and then tried MDMA, ecstasy and prescription drugs. At the age of 18 you started amphetamines and then moved on to methylamphetamines which you used heavily until approximately 12 months ago or more now.
23Ms Cidoni administered a range of tests. An assessment of your verbal comprehension, abstract thinking, placed you in the borderline range.[3] While you were not assessed as suffering from adult ADHD you did endorse a high level of hyperactive impulsive motor symptoms and to a lesser degree, some inattention.[4] Also, you presented with symptoms consistent with post-traumatic stress disorder, though you did not meet the full criteria for this condition. Ms Cidoni also considered that the challenges and difficulties in your formative years have ‘profoundly impacted your emotional and cognitive development' and 'set a trajectory for substance abuse.'[5]
[3]Ibid., paragraph 54
[4]Ibid., paragraph 69
[5]Ibid., paragraph 85
24The MHARS assessment dated 29 January 2024 refers to you being blind in your left eye and also queries whether you may have a traumatic head injury from assaults. You have expressed a desire to apply for an NDIS package if eligible.
25You have a relevant prior criminal history, Mr Rapana, for drug, violence and dishonesty offending and have been sentenced to previous terms of imprisonment. On 16 November 2021 you were sentenced by this court to a period of 12 months imprisonment on one charge of robbery. The records reflect that 784 days were declared as having already been served by way of pre-sentence detention.
26In sentencing you, I take into account your personal background. I also take into account the report of Ms Cidoni. While Verdins principles were not relied upon[6], I take into account your limitations and vulnerabilities as identified in the report. I accept your counsel's submission that the Bugmy principle in the broad sense applies in your case and, to an extent, is relevant to an assessment of your moral culpability and sentencing.[7] I note that this was not disputed by the prosecution.
[6]R v Verdins [2007] VSCA 62
[7]Bugmy v The Queen [2013] HCA 37
Pre-sentence detention
27On 7 July 2023, you were remanded in custody after a warrant was executed for your failure to appear in June of 2023, the committal case conference. You have remained in custody since this date.
28On 30 October 2023 you were sentenced to an aggregate term of four months imprisonment declared as pre-sentence detention on that matter. That sentence ceased on 7 November 2023. Applying the totality principle, I take this period into account. Between 7 November 2023 and today's date, you have accumulated 86 days in pre-sentence detention.
29As already noted, on 16 November 2021, you were sentenced to 12 months imprisonment and 784 days was formally reckoned. The parties agree that 419 days of this declaration was not referrable to the sentence actually imposed and constitutes what is colloquially referred to as Renzella time or, 'dead time.'
30In Renzella's case the court stated pre-sentence detention to which s18 does not apply is to be taken into account in the exercise of the court's discretion and should ordinarily be taken into account at the first opportunity.[8] The Renzella discretion has been applied on many occasions by the court. In El-Waly the court observed 'Where Renzella applies the Court may take account of the whole period which the offender in custody, or some lesser period.'[9] What emerges from the cases is that it is a matter for the individual judge in their discretion to decide what weight should be given.
[8]R v Renzella [1999] VSCA 85, paragraph 11
[9]El-Waly v The Queen [2012] VSCA 184, paragraph 110(e)
31Originally, or initially an issue in dispute between the parties was whether the Renzella time had already been taken into account. The prosecution relied on the general principle that such time should ordinarily be considered at the first opportunity.
32The prosecution pointed out that since being remanded, you had received two sentences of imprisonment, on 30 October 2023 at the Frankston Magistrates' Court you were sentenced on charges including affray and intentionally damaging property, to an aggregate term of four months imprisonment and monetary penalties.
33On 29 April 2022, you were sentenced for recklessly cause injury, commit offence on bail and other charges and were sentenced to an aggregate term of 180 days imprisonment with 68 days reckoned as pre-sentence detention.
34As ventilated at the hearing of this matter, there was nothing on the face of the record to indicate the previous period of time was taken into account in the imposition of either sentence. Your counsel relied upon email communication with the sentence calculation and warrant administration authority which confirmed that you had 419 days under the Renzella principle available to you.
35The basis for this was somewhat unclear. It may have meant that the Renzella time had not formally been noted or entered into the system. In any event, it was suggested to counsel that further inquiries be made and an opportunity to do so was provided.
36On 25 January 2024 an affidavit was filed by your solicitor Mr Domenic Care, relevant to both subsequent hearings. Mr Care deposes to having represented you at the April 2022 hearing. In summary, while he could not ‘categorically’ state that he did not mention the surplus period of imprisonment arising from your November 2021 sentence, he had no specific recollection of relying on any Renzella time or to the Magistrate referring to it.
37In respect of the later hearing in October, Counsel was briefed and her reporting memorandum did not mention Renzella. In a more recent conversation, Counsel could not recall specifically relying on Renzella and indicated that it was unlikely to have been raised if it was not mentioned in her memorandum.
38The prosecution also made further inquiries and confirmed that the court orders of those appearances do not reference any Renzella time and there 'Did not appear to be any relevant notations amongst the available Court and Victoria Police records.'
39The absence of any such record is consistent with the affidavit of Mr Care and today the prosecutor, Mr Kelly, accepts that the Renzella time is available to you.
40The Court's discretion to take pre-sentence detention into account is broad and based on a need to avoid injustice to an accused person. On the material before me, and as I indicated to counsel, I am satisfied that this period has not previously been taken into account. As such, I consider that I am obliged as a matter of justice to take it into account in the sentence I am to impose.
41While I have not employed a strict mathematical formula in doing so, I indicate that it has caused me to substantially reduce the sentence I would have otherwise imposed.
Other relevant factors
42Your Counsel submitted, further, that there is a prospect that you will be deported from Australia if convicted and sentenced to more than 12 months imprisonment. While you are a permanent resident in Australia and have resided here for some time, you are not an Australian citizen. I take this factor into account as contended for by your counsel Mr Rofe.
Prospects of rehabilitation
43Your prospects are rehabilitation, Mr Rapana, are somewhat difficult to assess and must be approached cautiously. As already noted you have a relevant prior criminal history and you appear to have only a very limited support network. Also, as noted by Ms Cidoni, your insight and judgment seem, 'low.'[10] On her risk assessment you were assessed as representing a moderate to high risk. She states that: 'Effective risk reduction requires a comprehensive approach including stable housing, ongoing substance abuse treatment and psychotherapy.'[11]
[10]Report of Psychologist Gina Cidoni, paragraph 49
[11]Ibid., paragraphs 79, 86
44I accept your counsel's submission that you are 'Not without hope.'
45I take into account that you are motivated on release to find housing and a job in the construction industry. While you present with some limitations, there are no concrete impediments to you working towards achieving these goals. I note that in prison you have worked in the laundry and you are compliant with prescribed medications.
Sentencing principles
46The basic purpose for which a court may impose sentence are punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community.
47I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have also had regard to the current sentencing practices for armed robbery. The cases have assisted me but as has been said many times before, comparable cases are not precedents, do not fix boundaries and in the context of sentencing, no two cases are alike.
48I have also taken into account the maximum penalties and the principles of parsimony, proportionality and totality as already canvassed.
49I had you assessed for a community corrections order. You were assessed as unsuitable. Apparently, you were unable to provide the assessor with an address of where you would be residing on release and told them you had no transitional support in place.
50When discussing the offending, you also sought to justify your actions and it is for these reasons combined, that you were assessed as unsuitable.
51Mr Rapana, in some respects, this is a difficult sentencing exercise. The court is required to weigh up a range of considerations that I have already outlined. I do consider that a term of immediate imprisonment is the only just and appropriate sentence in your case.
52As already stated, I propose to significantly reduce your sentence to reflect and take into account the lengthy period of Renzella time. The period I will impose also takes into account the principles I have referred to including deterrence, denunciation and rehabilitation and as I discussed with your counsel this morning, it is hoped that you will receive some assistance before your release from custody to assist you with your transition back into the community.
Sentence
53Taking all matters into account, synthesising and taking into account all matters in your case Mr Rapana:
54On Charge 1, which is armed robbery, you are convicted and you are sentenced to a term of seven months imprisonment.
55On Charge 2, which is the summary offence, you are convicted and sentenced to a period of seven days' imprisonment.
56Charge 1 is the head sentence. Charge 2, the seven days, is to be served concurrently.
57Pursuant to s18 I declare that 86 days of your sentence has been served by way of pre-sentence detention.
58Now, I am not able to formally reckon the Renzella time of 419 days but I will have entered into the record that it has been taken into account pursuant to the Renzella principles and as I think I have made plain, it has caused me to substantially reduce the sentence I would have otherwise imposed.
59A s6AAA exercise is extremely difficult in this case, but I can indicate in very broad terms that had you not pleaded guilty, I would have imposed a sentence of some 14 months imprisonment, an immediate term. The purpose really in stating this is to benefit you Mr Rapana so that you can quite clearly see that you have saved yourself prison time, substantial prison time, by entering a plea of guilty and dealing with the matter as you have.
60HER HONOUR: All right. Counsel is there anything further. I can't recall if there are any other ancillary orders?
61MR KELLY: There is no other ancillary orders Your Honour, and nothing from my side of the Bar table.
62HER HONOUR: Anything further?
63MR ROFE: Nothing, Your Honour.
64HER HONOUR: All right. Would you like a moment with your client just to ensure that he understands the sentence.
65MR ROFE: Yes, thank you, Your Honour.
66HER HONOUR: All right, thank you. Counsel, thanks very much for the additional inquiries and your assistance. We will adjourn.
67MR ROFE: If it please the court.
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