Director of Public Prosecutions v Jubilee

[2016] VCC 1515

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00085

DIRECTOR OF PUBLIC PROSECUTIONS

v

METUANGARO JUBILEE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2016
DATE OF SENTENCE:	4 October 2016
CASE MAY BE CITED AS:	DPP v Jubilee
MEDIUM NEUTRAL CITATION:	[2016] VCC 1515

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.A. Glynn
For the Offender	Ms G. Connelly

1HER HONOUR:  Metuangaro Joshua Jubilee, you have pleaded guilty to one charge of theft (Charge 1) and two charges of armed robbery (Charges 2 and 3).  You have also pleaded guilty to two summary charges which have been transferred to this court.  Summary Charge 11 is an offence of committing an indictable offence while on bail, and Summary Charge 12 is an offence of contravening a conduct condition of bail.

2The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for theft is 10 years' imprisonment. The maximum penalty for each of the summary charges is three months' imprisonment.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. This offending occurred on 28 and 29 July 2015.  On the evening of 28 July 2015 you were picked up in Dandenong by a co‑offender who was driving a stolen vehicle.  You describe that co‑offender, Mr Su'a, as a good friend of yours.  You admitted that you knew that the car was stolen when you got into it.  That is the basis of Charge 1 of theft of motor vehicle.

4You and Mr Su'a met up with another six co‑offenders who were in three other stolen cars.  As a group you decided to travel to the Mornington Peninsula to commit an armed robbery on a service station.  Mr Su'a was driving a vehicle in which you were a passenger.  On the drive there was a discussion between you and Mr Su'a about how you would choose which service station to rob.  When you got to Rosebud you pointed out a service station to Mr Su'a.  The four cars stopped in a nearby street.  At this stage it was about 3 am on 29 July 2015.

5You and two other younger co‑offenders and others remained near the cars while Mr Su'a and three other co‑offenders left in one of the cars to carry out the armed robbery.  Those four went to the 7‑Eleven.  Mr Su'a was armed with a handgun and another co‑offender was armed with an axe. The offenders menaced a customer and a store attendant.  They stole cash of $520 and cigarettes to a value of $8,979.66.  That offending is the basis of Charge 2 of armed robbery.

6The four offenders who had gone to that 7‑Eleven then returned to the group.  Mr Su'a told you what he had stolen and he told you that he had used a gun.  This was the first time you realised that Mr Su'a had a gun with him. The group then travelled along to Dromana.  When you got to Dromana you pointed out another 7‑Eleven store to Mr Su'a.  You again pulled over in a nearby street. 

7Again, the same four co‑offenders went to the 7‑Eleven.  Mr Su'a was again armed with a pistol and another co‑offender was again armed with an axe.  An attendant was menaced by those offenders with their weapons.  They stole cash to the value of $523 and cigarettes to the value of $9,385.99.  Those circumstances are the basis of Charge 3 of armed robbery.

8The group then re-formed and you all drove back to Dandenong where you went your separate ways.

9At the time of these offences you were on bail which was granted in relation to other offending on 21 July 2015.  You therefore committed the offence of committing an indictable offence whilst on bail, which is the subject matter of Summary Charge 11.  It was also a condition of your bail that you be at your place of residence between 9 pm and 6 am.  You breached that condition of your bail, which is also an offence.  That is the basis of Summary Charge 12.

10I note that the pistol used by Mr Su'a was an air pistol designed to imitate a semiautomatic pistol and it was not operational at the time of these offences.

11You were arrested on 30 July 2015.  You were interviewed.  You made substantial admissions as to your role in the offending.

12You were charged and a brief committal hearing was held on 29 January 2016.  As I understand it, the principal issue at the committal was to do with matters to do with your record of interview.  Ultimately, you pleaded guilty to the present indictment at a directions hearing on 23 June 2016.

13After your arrest on 30 July 2015 you were remanded in custody.  You were subsequently sentenced in relation to the offences on which you had been on bail and were sentenced to four months' imprisonment.  Ultimately, you successfully appealed that sentence and were sentenced to 50 days' imprisonment in relation to that offending, which was dishonesty offences.  That period of 50 days had been served.  In addition, you had spent 90 days in pre‑sentence detention.

14In sentencing you I have taken into account your personal circumstances as they were outlined by your counsel. It appears that you had a number of difficulties during your childhood in New Zealand. You moved to Australia in 2013. At first that was successful and you engaged in work but ultimately you became unemployed and you then started associating with some of the people with whom you offended.

15You were diagnosed with epilepsy when you were a young child and have had some difficulties in recent times in controlling your epilepsy.  In part that has been due to your financial difficulties and problems with maintaining your medication.

16It appears that since this offending and your release from custody you have moved in with other family members who are very supportive of you.  The reference provided by them is a positive one.  The reference from the people who, as I understand it, you describe as your aunt and uncle says that you have settled down considerably since that time.

17There is also a reference from an employer who employed you apparently for three months and that is a positive reference.

18I understand you have, since September, returned to the seasonal packing job that you had previously been engaged in.  It appears that you enjoy doing that job and find that you are able to do it and you can earn some consistent money doing that.

19I have also noted that suffered from violence at the hands of your father when you were a boy but that you have, to a degree, re‑established a positive relationship with your father.

20In sentencing submissions, your counsel submitted that an appropriate sentence would be the time you have already served to be followed by a community correction order.  Your counsel relied on a number of factors in mitigation of sentence.  In particular, she relied on your limited role in the commission of the armed robberies, your admissions in the record of interview, your youth, your lack of prior criminal history, your prospects of rehabilitation, the onerousness of custody during the period you had spent on remand and on sentence, your remorse and parity issues.

21Your counsel also submitted that the total period of five months that you spent in prison ought to be taken into account in application of the principle of totality.

22The prosecutor, in sentencing submissions, submitted that given your youth and your role in this offending a sentence of imprisonment to be followed by a community correction order was within range.

23Metuangaro Jubilee, the offences to which you have pleaded guilty are serious offences.  The offence of armed robbery is a particularly serious office.  That is obvious from the maximum penalty of 25 years' imprisonment.  These armed robberies were committed at night‑time on soft targets.  There were a group of offenders.  The offenders were armed.  It is particularly troubling that at the time of the time second armed robbery you knew that your co‑offender had a gun. Armed robbery on soft targets such as convenience stores and service stations is prevalent offending.  Theft of matter vehicles is also prevalent offending and serious.

24You were on bail at the time and you ought to have been complying with your bail conditions, not engaging with a group of other young men in stolen cars engaged on an expedition to steal and rob. 

25General deterrence in such cases is an important sentencing consideration.  The message has to go out to other people in the community that they cannot engage in this type of offending without significant punishment. In your case the application of general deterrence must be moderated to a significant degree because of your youth and other mitigating factors.  Your youth has a very important part to play in this sentence.  It is of significance that the offending in which you were engaged on this occasion and on the occasion of the other offending all happened within a relatively short period of time.  The offending all occurred within a few months in 2015 at a time when you were 20 years old. Since that time you have been in gaol.  I accept that the conditions that you faced in gaol were difficult ones. You have, since then, settled down to a considerable degree, apparently.  You have moved in with other family members.  You have been working.  You have not got into further trouble since then. That suggests that you have excellent prospects of rehabilitation.  That conclusion is also supported by your immediate admissions to the police.  You made no attempt to hide your part and the prosecution against you in significant ways relies on the admissions that you made. For those reasons, it is my view that the application of general deterrence can be moderated to a very significant degree in this case.

26There is still some role to play for specific deterrence but, again, the application of that principle can be moderated because of your youth and your apparent current understanding that you should not engage in this kind of behaviour. I say it has some application because I think it is important that you gain an understanding that if you offend again you will be seriously punished.  It is to be hoped that this will deter you from any further offending such as this.

27

28It is my view that given the moderation of those principles an appropriate sentence in this case would be a sentence of imprisonment to the period that you have already served to be followed by a community correction order.  A community correction order would provide an opportunity for there to be effectively something hanging over your head and to encourage you to continue with your rehabilitation.

29I have taken into account that total period of five months that you served in terms of the application of the principle of totality.

30It is my view that an aggregate sentence would be appropriate. I note that the offences were committed while you were on bail and s.16(3)(c) of the Sentencing Act 1991 applies. Taking that into account, in view of the close relationship of the offending in time and circumstance and the application of the principles of proportionality and totality, I consider that an aggregate sentence is appropriate.

31I have taken into account in fixing the terms and conditions of the community correction order parity issues in relation to the other co‑offenders.  Two of the co‑offenders were sentenced in the County Court to periods of detention in a youth justice centre.  Both of those persons played a more serious and significant role in this offending than you did.  They were also sentenced in relation to other offending.  I have borne in mind that they were younger than you but particularly with Mr Su'a there was very little age difference.

32You are also entitled to a significant discount for your plea of guilty.  I accept that that is an expression of remorse.  Whilst there was a short committal, your plea of guilty has also had considerable utilitarian benefit in saving the cost and inconvenience of a trial.

33Mr Jubilee, could you stand up, please.

34I understand that Mr Temple-Camp explained to you some of the conditions and requirements of a community correction order, is that correct? 

35OFFENDER:  Yes, Your Honour.

36HER HONOUR:  And you signed a form saying that you had had some of those things explained to you and you agreed to the order being imposed, is that right? 

37OFFENDER:  Yes, Your Honour.

38HER HONOUR:  All right.  Now, I want to explain what the additional features are that Mr Temple-Camp didn't know about. 

39The order will last for 18 months, so it starts today and would go for 18 months.

40There are mandatory terms which apply to all community correction orders.  Those include matters such as complying with the directions that you are given, not leaving Victoria without notifying the authorities first, matters such as that.  Very importantly, the conditions also include a condition that you not commit any offence during the period of the order.  If you commit an offence you can be brought back to court before me and I can resentence you in relation to all of these matters as well as sentencing you for whatever the new offending is.  So it is very important that you understand that this requires you to be absolutely committed to obeying the law for the next 18 months.

41The order would also require you to do 200 hours of unpaid community work over the 18 months.

42There would also be a condition that you not contact a number of people – Zhane Su'a, Ayum Arow, Aidyn Brown, Max Foluena, Tiepo McKenzie, Junior Ulutui and Peter Ulutui.

43There would also be an additional requirement that you attend for review at 9.30 am before me on 8 February 2017.

44Mr Jubilee, do you need any time to discuss that further with Ms Connelly, those conditions?  Ms Connelly, would you like to just approach Mr Jubilee and see if he has any questions that he would like to ask? 

45MS CONNELLY:  Certainly, yes, Your Honour.

46HER HONOUR:  Thank you, Mr Jubilee.  Do you require more time? 

47OFFENDER:  No.

48HER HONOUR:  Do you consent to that order being made? 

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  So in respect of Charge 1 of theft, Charges 2 and 3 of armed robbery, Summary Charge 11 and Summary Charge 12, you are convicted and sentenced to 90 days' imprisonment.  That period of imprisonment is to be followed by a community correction order for a period of 18 months with the terms and conditions that I have described.

51In respect of Charge 1 of theft, your motor vehicle licences are cancelled.  You are disqualified from driving in the State of Victoria for a period of six months from today.  You must not drive while disqualified.  If you wish to obtain a driver's licence after that six months has expired, you must do so in a lawful fashion.

52I declare that you have served 90 days of this sentence by way of pre‑sentence detention to be deducted administratively.   That means you have already served the period of imprisonment that I have imposed.

53But for your plea of guilty, I would have sentenced you to a term of imprisonment of two years with a non‑parole period of 18 months.

54I will see you again in February.  I hope that when I see you there's been no further offending.  Hopefully by that time the other Magistrates' Court matters will all be sorted out.  I hope you will have been working.  I also hope you will have been able to save up enough money to do something about the medical matters.  That would be a good thing, I think, if you tackled that also.  Anyway, if it can't be but I will be interested to see what's going on in February when I see you then.  If everything is going fine then that will probably be the end of the matter.  Otherwise I might do another judicial monitoring but we will wait and see how things are going in February.

55Community correction orders are not easy to do because you have to be cooperative with the Community Corrections officers.  It can sometimes be a frustrating process.  Please just remember that it's better than the alternative which in your case would be gaol.  So you must do the work hours but if you are cooperative with the Corrections authorities it will go much easier and they will cooperate with you too.  And hopefully then you will be able to do the work hours and fit them in around your work and that will enable you to put something back into the community as well.

Thank you.

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