Director of Public Prosecutions v Julian
[2013] VCC 930
•9 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00182
| DPP |
| v |
| ARIKI JULIAN |
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JUDGE: | HIS HONOUR M.P. BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 May 2013 | |
CASE MAY BE CITED AS: | DPP v. Julian | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 930 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K.G Gilligan, with Ms J.B. Warren | |
| For the Accused | Ms O.A. Trumble |
HIS HONOUR:
1 Ariki Julian, you are to be sentenced for one charge of burglary, six charges of theft, six charges of armed robbery, one charge of attempted armed robbery and one charge of intentionally cause injury. You are also to be sentenced on the summary offences of driving whilst disqualified and possession of a long‑arm firearm without a licence.
2 The maximum sentences are 10 years' imprisonment for burglary, theft and intentionally cause injury; 25 years' imprisonment for armed robbery; 20 years' imprisonment for attempted armed robbery. On the summary offences, the maximum sentences are four months' imprisonment for driving whilst disqualified and two months' imprisonment for possession of a Category A, a long-arm, without a licence.
3 You pleaded guilty before me on 17 April. When interviewed by the police on 19 April 2012, you made admissions on some offences but exercised your right to silence on others. You entered pleas of guilty for these matters during committal proceedings in early February of this year. I bear in mind that negotiation led to other charges against you being withdrawn.
4 You receive the benefit of your pleas of guilty which were made at any early stage in the proceedings. This has facilitated the interests of justice. It has been estimated that a joint trial on these charges involving you and co‑offenders would have run for approximately eight weeks. Further, victims of your offences, particularly the armed robberies, have been spared the hardship of giving evidence.
5 At your plea hearing, on 17 and 18 April, Mr Gilligan for the Crown tendered a written Crown opening, a DVD film of a number of armed robberies and victim impact statements of Therese Marangon, Lyn Hibbert, Jacqueline Hamilton, Helen Ellis, Slobodan Petrovski, Peter Thatcher, Norman Shaw, Dale Kallis and Paul Hodgson. Mr Gilligan also produced to me short written submissions on sentence and another document, being an overview of high‑range armed robbery sentences in the Victorian Court of Appeal.
6 Ms Trumble, for you, tendered the psychological reports of Dr Dion Gee and Dr Robert Burke dated 5 April 2013 and 6 December 2012; a neuropsychological report of Dr Erin Cunningham dated 26 April 2012; certificates related to educational courses and rehabilitation programs in custody; chronologies of your personal history and pre-sentence detention on these and other proceedings and the letters of your mother and sister.
7 The circumstances of your offending and that of your co-offenders are comprehensively described in the Crown opening, which is tendered as Exhibit A. My own summary may therefore be shorter.
8 A police operation named Samson Taskforce ran between November 2011 and May 2012. It was directed at armed robberies committed in the north-western suburbs and targeting gaming venues such as sporting clubs and hotels. Investigation and surveillance included telephone intercepts, tracking device data, physical surveillance, an examination of call charge records and cell tower locations, and listening device surveillance.
9 Relevant to your proceedings, the operation has led to the arrest and charging of you and five co-offenders. Those co-offenders include your co-accused in these plea proceedings, Jessica Smith and two men named Mohammed Khoder. They are cousins. The elder Mohammed Khoder is now aged 30, him being born on 15 December 1982; the younger Mohammed Khoder is aged 25, having been born on 12 August 1987. The plea hearings of those co-offenders also ran on 17 to 19 April. Jessica Smith and the older man named Mohammed Khoder were sentenced by me on 26 April. It is not suggested that the principle of parity applies between their sentences and your own. I had intended sentencing the younger man named Mohammed Khoder this morning; that will now happen tomorrow morning, as I understand.
10 Broadly described, the offending includes the theft of motor vehicles and firearms and armed robberies or attempted armed robberies at seven venues. One was robbed twice. Ariki Julian, your individual offending occurred between July 2011 and January 2012. At a time between July and late September, you burgled a rural property in Lake Bolac, stealing a number of firearms. It is not established that these firearms were used in subsequent armed robberies. You took possession of these guns without a licence to do so. That is one of the summary offences. Between July and November 2011 you were involved in six armed robberies and one attempt to commit that offence. As stated, they were committed on licensed and gambling venues. You were in the company of others; on five occasions with the younger man, Mohammed Khoder. Your role was that of gunman. You entered, usually by yourself, disguised and armed, threatened staff and took the money. The attempted armed robbery did not come off because you and an armed accomplice were confronted by a patron, a man of some advanced years as I saw the film, just within the entrance. You both ran away.
11 Amounts stolen in these robberies ranged between approximately $500 and $5000. You also stole five motor vehicles between August 2011 and January 2012. You stole the same vehicle twice in December and January. It was owned by a man named Kevin Wiseby. You assaulted and injured him on the first occasion of theft.
12 The summary offence of driving whilst disqualified is associated with a motor car theft committed in August 2011.
13 As I stated during the plea hearings, I draw no distinction between the roles of you and co-offenders in the armed robberies and attempted armed robbery. It was not argued that I should.
14 I have carefully read each of the tendered victim impact statements, particularly the staff and patrons of the venues robbed, who have suffered very considerable impact. They have suffered fear, anxiety, loss of confidence and a sense of security. There have been problems sleeping and with family relationships. Work and social life has been affected. Some take medication and receive ongoing psychiatric or psychological treatment for conditions such as post‑traumatic stress disorder. Staff at the Lalor Bowls Club were victims of two armed robberies committed upon them by you. One, Lyn Hibbert, was a primary victim of both. She was also the victim of a third robbery over the period, not attributed to you. The man who confronted the two men attempting to rob the Glenroy Bowls Club, Norman Shaw, carries the ongoing and vivid memory of having the firearm pointed at his chest.
15 As I have said, and unsurprisingly, the victim impact here has been very considerable and affects a number of people. My description of it has not been complete. I must and shall take it into account when sentencing you.
16 You are a 20-year-old of Maori and Samoan background. You were aged between 18 and 19 when you committed these offences. You were born in New Zealand and have two sisters and a stepbrother. You have suffered a dislocated and abusive childhood. Your father died when you were six months old. You were physically abused and exposed to a criminal culture by your stepfather. From very early teenage, you were away from home and in foster care. You began using drugs. Schooling was not successful and ended at age 12. At 15, you were sentenced to youth detention in New Zealand and instruct that there was further physical abuse suffered in that detention.
17 You came to Australia to live with an older sister and her family at 15 to 16 years. You then worked here and lived successfully for a time. However, by 2010, at 18, you had relapsed into drug use, particularly methylamphetamine, and declined into the circumstances of this offending. You had left your sister's home; however, she has remained supportive of you.
18 The period of your stability living with her when aged 16 to 18 years was no doubt assisted by the influence of her husband, it seems the singular positive male role model in your life so far.
19 Your criminal history reflects this brief and sad description of a still young life. There are a number of prior offences in New Zealand including offences of dishonesty, threat or violence and offences related to firearms. In Australia, there is a finding of guilt on a firearm offence in January 2011.
20 There is also the sentence of Judge Gamble of this court for offending committed prior to these matters before me, but for which you were sentenced in February 2013. On 11 February 2013 he sentenced you on two charges of indecent assault to a total effective sentence of 12 months with a minimum term of six months. He declared pre-sentence detention of 242 days. They are offences markedly dissimilar to these. However, I note that the Adult Parole Board has been unable to consider parole of you on Judge Gamble's sentence effectively because of your arrest and remand on these matters. The circumstances of your periods of custody leading to his sentence in February of this year are set out in Judge Gamble's sentencing reasons which I have read. That included a partially suspended sentence imposed by the Magistrates' Court for a number of offences seemingly committed during the period of this offending, the immediately served portion of which was served in about July to September 2012.
21 The principle of totality must be appropriately applied to those circumstances.
22 The psychological and neuropsychological evidence discloses that you are a person of very significantly limited intellectual capacity. Psychometric testing by Dr Burke in December 2012 produced a full-scale IQ score of 58 which is in the bottom .3 per cent of similarly aged peers and on the basis of which you quite emphatically qualify for the description of intellectually disabled.
23 I agree with Dr Fitzgerald's submissions on your behalf that the principles stated in R v. Verdins and like cases apply to your sentence. Psychologist, Dr Cunningham, also diagnoses disorders of generalised anger and substance dependence.
24 Your offending before me is extremely serious and prolonged. It was, in its various parts, violent, terrifying and disturbingly antisocial. I have earlier stated the very considerable victim impacts. I repeat the comments made in my sentence of a co-offender, a man involved in one of the robberies:
"Armed robbery is a most serious crime. It attacks good order and the safety and wellbeing of people placed, usually through no choice, in its way."
25 I should add this. Mr Gilligan has understandably pointed out the adverse feature of your second armed robbery on 31 October 2011 upon the Lalor Bowls Club which followed, on the same night, the attempted robbery in Glenroy. You, with others, had robbed the Lalor venue on 13 July. Lyn Hibbert was the primary victims on both occasions.
26 It is clear that the circumstances of offending require emphasis upon the sentencing considerations of deterrence, both general and specific, denunciation, moral culpability and the need for proportionate punishment.
27 Ariki Julian, in considering the subjective and personal matters relevant to you, there are significant moderating factors. They include the following:
(1) Your plea of guilty
(2) Your personal history and circumstances.
(3) As stated, the Verdins principles apply. I have been referred in the plea hearings to the 2011 High Court decision of Muldrock v R. in this regard. As I stated in sentencing a co-offender, but it is applicable to you, the extent to which your intellectual incapacity should moderate considerations of moral culpability, denunciation, deterrence and punishment must depend on the circumstances of the case and the level of disability relevant to that. However, I find that you are intellectually disabled and that that is an ongoing state of disadvantage. It must be recognised that you have a lack of capacity to reason as others might, including about the wrongfulness of criminal conduct. I also find that your intellectual capacity will make imprisonment more difficult for you than others. Ultimately, I have decided that there should be a significant moderation of your sentence under relevant R v. Verdins principles.
(4) You are still a youthful offender. A very substantial period of imprisonment is necessary to meet the seriousness of your offending. Although it is difficult to be optimistic, however, I must and do consider rehabilitation as a real possibility. It will depend upon your efforts on parole to address drug use and the criminal lifestyle that is in your case attached to it.
(5) I should apply, as I have stated, the principle of totality. I intend to impose a sentence which reflects or is consistent with a just total sentence for your offending which led to Judge Gamble's sentence and the Magistrates' Court sentence to which I have already referred and which reflects that loss of opportunity for parole.
28 Your sentence of imprisonment must be substantial, although the combination of factors more favourable to you that I have stated in your case significantly moderate its length compared to what an objectively viewed assessment of the circumstances of offending would require. As I have said, it still remains a substantial sentence of imprisonment. I do not impose this sentence with any pleasure at all. You are young. You would still, if your offending was not as serious as it was, be eligible for detention in a youth justice centre.
29 Whether you suffer a life in the future of constant imprisonment and what flows from that will depend on your willingness and capacity to rehabilitate when released on parole.
30 Stand up, please. Ariki Julian, you are sentenced as follows: on Charge 1, burglary, 18 months' imprisonment; on Charge 2, theft, 18 months' imprisonment; on Charge 3, armed robbery, four years' imprisonment; on Charge 4, armed robbery, four years' imprisonment; on Charge 6, armed robbery, four years' imprisonment; on Charge 7, armed robbery, four years' imprisonment; on Charge 14, attempted armed robbery, three and a half years' imprisonment; on Charge 15, armed robbery, four and a half years' imprisonment (That is the second robbery committed at the Lalor Bowls Club.) On Charge 17, theft, six months' imprisonment; on Charge 18, armed robbery, four years' imprisonment; on Charge 19, theft, six months' imprisonment; on Charge 22, theft, six months' imprisonment; on Charge 23, intentionally causing injury, six months' imprisonment; on Charge 26, theft, nine months' imprisonment. That is the second theft, the victim of which was Kevin Wiseby.
31 On the summary offences, driving whilst disqualified, three months' imprisonment; on possession of a firearm without a licence, six months' imprisonment.
32 I direct only partial cumulation in the following way. I direct that six months of the sentences on Charges 3, 4, 6, 17 and 18, four months of the sentences on Charges 1 and 14, three months of the sentence on Charge 26, two months of the sentences on Charges 17, 19, 22 and 23 and one month of the sentence on the summary offence of driving whilst disqualified and two months of the sentence of possession of a firearm without a licence be served cumulatively upon the four and a half year sentence imposed on Charge 15 and cumulative upon each other. That is a total effective sentence of eight years and nine months. I direct a minimum term before eligibility for parole of five years and nine months. I declare under s.18 82 days of pre‑sentence detention.
33 Sit down, please. I perhaps should have included, in a more complete way in my reasons, that totality across the range and within this multiple count Presentment requires a moderation of the individual sentences and cumulation. I have attempted to impose a total sentence the balances the seriousness of this offending with those personal matters of significance related to this person, including your youth.
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34 HIS HONOUR: What are the other matters?
35 MR GILLIGAN: Your Honour, just in relation to the sentence, Your Honour started off with six months' accumulation re 3, 4, 6, 17 and 18.
36 HIS HONOUR: No, I've got 7 and 18.
37 MR GILLIGAN: 7.
38 HIS HONOUR: They're the armed robberies.
39 MR GILLIGAN: Sorry.
40 HIS HONOUR: Does that help?
41 MR GILLIGAN: Yes, thank you.
42 HIS HONOUR: I may have said 17. 3, 4, 6, 7 and 18.
43 MR GILLIGAN: Yes, that was my query.
44 HIS HONOUR: Yes. Because of the need to rearrange the sentencing reasons, I didn't undergo my usual process of double-checking and checking again the arithmetic. I think it's right. I'm going to look at it again, and if there's been an error made arithmetically, I will remedy that tomorrow.
45 MR GILLIGAN: Yes, Your Honour. My learned friend will deal with these orders.
46 HIS HONOUR: Yes. What do we need to do?
47 MS TRUMBLE: Your Honour, there's three categories of orders for Julian. There's the retention order, so the 464ZFB.
48 HIS HONOUR: I will make that order. The reasons why it is inevitable to make it is for the major reasons, the gravity of these offences.
49 MS TRUMBLE: Yes, Your Honour.
50 HIS HONOUR: Also, forensic material of this type is also of prospective importance in investigating offending like this.
51 MS TRUMBLE: Yes, Your Honour.
52 HIS HONOUR: So I will make the order. There is no need to explain the circumstances of any taking of a sample because it's a retention order.
53 MS TRUMBLE: That's correct, Your Honour.
54 HIS HONOUR: Yes, all right.
55 MS TRUMBLE: The secondary category of order, Your Honour, is the disposal order which relates to a black-handled knife and a metal pole.
56 HIS HONOUR: Yes, I'll make that order. None of these orders are opposed, are they?
57 MS TRUMBLE: They're not, Your Honour. These ones can be handed up, Your Honour. The difficulty arises in relation to the third category which is ‑ ‑ ‑
58 HIS HONOUR: I'll sign the orders that are individual so you can have those and then you can tell me about the other one. What's the date?
59 MS TRUMBLE: The 9th, Your Honour.
60 HIS HONOUR: Yes, I have done that. I'll hand those back to you. What else have we got?
61 MS TRUMBLE: The third category, Your Honour, is the compensation orders. There's two orders which relate only to Julian so we can deal with those today, and then there are three orders where both Julian and Mohammed Khoder are the target of the orders, Your Honour. So perhaps what we can do is provide those to Your Honour's associate via email for signing. So the first two which can be signed today, Your Honour, the first one relates to the Sylvania Hotel in the amount of $4680 and the second relates to the Fawkner RSL in the amount of $649.50.
62 HIS HONOUR: They're compensation orders that relate to this man?
63 MS TRUMBLE: Yes, Your Honour.
64 HIS HONOUR: Those are the robberies that he committed with others but not with the other co-offender, the younger Mohammed Khoder.
65 MS TRUMBLE: That's correct, Your Honour.
66 HIS HONOUR: I'll sign those now. While that's being handed up, I omitted to deal with s.6AAA and I will do that at the end. I have considered the matter; I just didn't get that far in my orders. I will sign the compensation orders. I've done that. What's left?
67 MS TRUMBLE: Perhaps if I just detail the three orders, Your Honour, which will be separated off. The third order which will be the third compensation order is for the Coolaroo Hotel in the amount of $3471. The fourth order will be for the Thomastown TAB in the amount of $536.65. The fifth of the compensation orders will be for the Lalor Bowls Club in the amount of $5940.
68 HIS HONOUR: Are you returning tomorrow for the other sentence?
69 MS TRUMBLE: I won't be, Your Honour.
70 MR GILLIGAN: I am, Your Honour.
71 HIS HONOUR: All right. The best thing is to keep them and hand them up and if necessary, I'll amend them by hand according to what you ask me to do, Mr Gilligan. Does that suit?
72 MR GILLIGAN: Yes, Your Honour.
73 MS TRUMBLE: Yes, Your Honour.
74 MR GILLIGAN: Your Honour, just in relation to the mathematics, I got 52 months cumulative which works out at four years four months, and if you add that to four years six months, I get eight years 10 months, a month out - hang on, my learned friend got eight years nine months. I don't know where we're going wrong here but ‑ ‑ ‑
75 HIS HONOUR: I'll go through it again.
76 MR GILLIGAN: Could I just check my figures to see what Your Honour says.
77 HIS HONOUR: Yes.
78 MR GILLIGAN: Six months cumulative re Charges 3, 4, 6, 7 and 18, that makes 30 months. Four months for 1 and 14, which makes eight months. Three months for 26; two months for 17, 19, 22, 23, which makes eight. One month for the drive disqualified; two months for the firearm. I add that up to 52 months.
79 HIS HONOUR: Yes, 52 months.
80 MR GILLIGAN: Which comes to four years and four months and if you add that to the four and a half years on ‑ ‑ ‑
81 HIS HONOUR: Yes, that's eight years and 10 months.
82 MR GILLIGAN: Decimals and fractions ‑ ‑ ‑
83 HIS HONOUR: They gave you a calculator too early, Ms Trumble. I suppose it's a little cheeky of me to say that. I would set a minimum term of five years and 10 months in those circumstances. My aim was to have an eligible for parole period of three years. Does that work out right?
84 MR GILLIGAN: Yes.
85 HIS HONOUR: I had eight years and nine months with a minimum term of five years and nine months.
86 MR GILLIGAN: I follow that.
87 HIS HONOUR: It's now eight years and 10 months with a minimum term of five years and 10 months.
88 MR GILLIGAN: Thank you Your Honour.
89 HIS HONOUR: Thank you. I think it may be explicable by this that there was for a time some indecision about what I should cumulate on the more serious theft charge, the second. I've obviously changed it from two to three at some stage and not taken it into account. All right.
90 MR GILLIGAN: There's just the 6AAA ‑ ‑ ‑
91 HIS HONOUR: Yes. I would have imposed a total head sentence of 12 years with a minimum term of eight years had he not pleaded guilty.
92 MR GILLIGAN: If Your Honour pleases.
93 HIS HONOUR: What else is there?
94 MR GILLIGAN: Nothing, Your Honour.
95 HIS HONOUR: All right. Thank you for your assistance, all three of you, over the course of these plea proceedings. They have been complicated and difficult matters. The sentencing of this man was a very difficult exercise. He can be taken into custody.
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