Director of Public Prosecutions v Kolio, Michael
[2013] VCC 88
•14 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02036, CR-12-02306 and CR-12-02305
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL KOLIO, IOSEFA FIU and PALE FIU |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2013 | |
DATE OF SENTENCE: | 14 February 2013 | |
CASE MAY BE CITED AS: | DPP v Kolio, Michael; Fiu, Iosefa & Fiu, Pale | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 88 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R B Hammill (Plea) Ms E Taylor (Sentence) | OPP |
| For the Accused | Mr M J Gleeson (Kolio) Mr A Swanwick (Fius) | Michael J Gleeson & Assoc. Alan Swanwick |
HIS HONOUR:
Introduction
1 Michael Kolio, Iosefa Fiu and Pale Fiu, you have pleaded guilty to six counts of armed robbery and four counts of destroying or damaging property.
2 Iosefa Fiu, you have also pleaded guilty to two counts of possession of a drug of dependence, and Pale Fiu, you have pleaded guilty to one count of possession of a drug of dependence.
3 In addition, you, Michael Kolio, have pleaded guilty to two counts of unlicensed driving and two counts of driving an unregistered vehicle.
4 You, Iosefa Fiu, have pleaded guilty to five counts of driving whilst disqualified, five counts of driving an unregistered vehicle, and one count of stating a false name and address.
5 You, Pale Fiu, have pleaded guilty to one count of unlicensed driving and one count of driving an unregistered vehicle.
6 You, Mr Kolio, are aged 23, having been born in May 1989. You, Mr Iosefa Fiu, are aged 22, having been born in November 1990. You, Mr Pale Fiu, are aged 20, having been born in April 1992.
7 The circumstances of the offences were set out in Exhibit A, the Crown Opening, which also included Exhibit B, a bundle of photographs. The maximum penalties for each of the offences, including the summary offences, are set out in Exhibit A, and I incorporate them by reference.
8 The circumstances of the offences, in brief detail, arise out of four separate incidents. The first three incidents occurred on 16 July 2012 and relate to armed robberies on the Westmeadows Tavern, the Brook on Sneydes Hotel in Point Cook, and the St Albans Sports Club. The offences on 16 July were perpetrated by the three of you plus an unknown fourth offender. The fourth incident was also at the Westmeadows Tavern and occurred on 2 August 2012. Only the three of you were involved in this incident. Each of the armed robberies took place at the gaming section of licensed premises and were the subject of a common modus operandi.
The offences in brief outline
9 I incorporate by reference the Crown Opening, which is the undisputed factual basis on which I sentence each of you. The offending may be briefly outlined as follows:
10 Around 10.30 on Sunday, 15 July a security officer on duty at the Westmeadows Tavern noticed something he considered suspicious; a lone male of Islander appearance later identified as you Pale Fiu, entered the venue, looked around and basically left. Two hours later the three of you, plus the fourth unknown male entered the premises. There was a locked door there; you forced your way into the premises using a metal pole to smash a glass panel, moved into the gaming room, threatened patrons and staff. The unknown fourth offender was armed with a metal pole. You Iosefa Fiu were armed with a machete.
11 Demands were made on the Tavern manager and you Iosefa Fiu at that time told staff that this was what you were going to do and swung the machete across the bar and smashed some glasses and bottles, frightening the patrons and staff. After the manager emptied the till the four of you then left through the front door in a silver Prado.
12 While staff and patrons were terrified during the commission of the crime, no one was physically injured and a total of $6045 was stolen.
13 Later that same day at approximately 8.10 pm a man entered the sport bar at the Brook on Sneydes Hotel located in Point Cook, raised suspicions of the staff and that person was later identified as you Iosefa Fiu. You made no attempt to use any of the machines and were seen to make a phone call. At that point the three co-accused came in and you fell to your feet and then left.
14 The three offenders entered the sports bar; you Mr Pale Fiu were wearing some of the same clothing and you had a black-coloured baseball bat.
Mr Kolio, you were also wearing some of the same clothing as you wore earlier and on this occasion you were armed with a black handgun.
15 Having entered the bar you told patrons and employees to lie on the floor. You then approached the cashier with a canvas bag demanding money; pointed the handgun at the counter staff and demanded they put money into the bag. You Mr Pale Fiu threatened to hit people with the baseball bat.
16 During the filling of the bag you Mr Pale Fiu walked around the bars threatening people and smashed some glass display units, and two computers. You then took the bag, left the hotel through the car park that you Mr Iosefa Fiu were waiting. No one was injured and a total of $2100 was stolen.
17 About an hour later the four of you entered the St Albans Sports Club in St Albans. You Mr Pale Fiu were wearing the same clothing, still armed with a black baseball bat. Mr Kolio you were wearing the same clothing and armed with a handgun. Mr Iosefa Fiu, you were in different clothing and you were armed with an axe. The fourth male was armed with a red baseball bat.
18 There were a large number of patrons in that venue and you used the axe to smash a glass partition in the smokers' area; some of the patrons were sprayed with shattered glass.
19 You Mr Kolio approached the cashier and pointed your handgun at both the female staff and patrons in a threatening way; placed the canvas bag in the cashier's desk; pointed a handgun at the cashier and demanded she fill the bag. While this was happening the two of you smashed four poker machines and a glass advertising screen. Demands were made that the staff hurry up. The security staff complied with the demand and at one stage you Mr Pale Fiu struck one of the staff twice with your baseball bat causing bruising.
20 As you were leaving the scene you Mr Kolio were seen pointing a handgun at staff and yelling at them not to look up. A total of about $5000 was stolen and $30,000 damage to the venue was incurred.
21 About three weeks later on 2 August, the three of you again entered the Westmeadows Tavern at about 10.15 pm by smashing a glass panel. Having entered the gaming room you threatened the staff and patrons; told them to lie on the ground and the event was a similar modus operandi to your earlier entry there on 16 July.
22 You Mr Kolio were again armed with a black handgun and carrying the same bag. Mr Pale Fiu, you were armed with a black handled baseball bat and you Mr Iosefa Fiu were armed with an axe that you had used in the previous
St Albans' robbery.
23 You Mr Kolio again approached the cashier and pointed a handgun at her. While this was happening the two of you, Iosefa and Pale Fiu, used your weapons to smash four poker machines causing approximately $20,000 damage.
24 During the commission of this offence you Mr Iosefa Fiu took a wallet and a purse from two patrons who were lying on the floor. One of the patrons had $200 cash in that wallet and another one handed over her purse containing about $160 cash. Those events give rise to Charges 8 and 9.
25 Having got as much money as you could out of the venue, you then left in the four-wheel drive Land Rover Discovery.
26 After the first three incidents the police engaged in a surveillance operation against you and were able to view the three of you driving the two vehicles that had been used in the incidents prior to that, and also subsequent to the fourth incident. They then executed an arrest warrant on premises at Point Cook on 16 August 2012 where the three of you were then living.
27 You Mr Kolio, made a no comment record of interview but you Pale Fiu and you Mr Iosefa Fiu made extensive admissions as to your conduct in the four robberies the subject of these counts.
28 You Pale Fiu admitted you were involved in all four robberies. You had done reconnaissance on the two venues; described the weapons that were being used; admitted that you screamed at people; advised that your brother drove the silver Prado to this venue and indeed drove to all the venues. You said that you had thrown away the weapons. You also said that you had split the money evenly and used your share on food an alcohol. You described the firearm as a plastic gun but it looked real. You admitted that you did not think of the effects on the victims; wished you had not done it but now it was too late, and regretted it now and did not want to hurt anyone.
29 You Mr Iosefa Fiu stayed at the premises and when the police conducted a search of the premises they found steroids – illegal drugs, some of which you admitted to owning, and the balance of them you said were owned by your brother Pale. You again, made a full confessional style interview admitting you drove the car on each occasion; saying that you were using a machete and a vacuum cleaner pole as weapons, and did not want to hurt anyone. You realised that people were frightened; said you did it for the money because you needed to pay for things. You admitted you did reconnaissance on the second armed robbery; admitted that you smashed poker machines during some of the armed robberies; admitted you took the purse and wallet; admitted you had the axe and admitted that you knew that this day would come. You admitted also that the patrons would have been scared and said you had thrown away most of the clothes.
Subsequent events
30 Relevant to later events is that you, Mr Iosefa Fiu, had been disqualified from driving on 16 February 2012. On the same date you had been sentenced to four months’ imprisonment, suspended for 12 months. That gives rise to the charges of driving whilst disqualified against you. After the three events that occurred on 16 July 2012 the police established a surveillance operation and as I said, In the course of that operation the police observed each of you driving a motor vehicle. You, Mr Kolio, were observed on 25 and 26 July when you were not licensed and the vehicle was unregistered. You, Iosefa Fiu, were observed driving an unregistered vehicle on 25, 26 and 27 July and 6 and 8 August. On 6 August you were intercepted by a uniformed officer and gave a false name. That gives rise to the giving a false name summary charge. You, Mr Pale Fiu, were observed on 25 July, without a licence and driving an unregistered vehicle.
31 Subsequently, on 16 August 2012, the police executed a search warrant at the house that you, Iosefa and Pale Fiu, were living with your aunt and other extended family. You, Mr Kolio, were present when the arrest was effected and at that point the police found prohibited drugs, namely steroids. That gives rise to the two counts of possession of a prohibited drug against you,
Mr Iosefa Fiu, and the single count of possession against you, Pale Fiu.
Explanation for the offences
32 On the plea, the explanation for the offending was that you all needed money to pay for drug debts and for methylamphetamine (Ice) habits that each of you had. Support for this submission in relation to you Iosefa and Pale Fiu was provided by Mr Anthony Dieni, an experienced drug and alcohol counsellor from St Paul’s Drug Prevention program, who interviewed each of you at the Custody Centre soon after your arrest. He concluded that both of you were addicted to Ice, with you, Iosefa Fiu, saying you were using between half to one gram a day, and you, Pale Fiu, using approximately half a gram per day. He formed the view that at that stage each of you were withdrawing from addiction.
33 In relation to you, Mr Kolio, you were examined by Tim Watson-Munro, consultant forensic psychologist, on three occasions. He indicated that you advised him that you were significantly addicted to Ice, having had a prior history of polysubstance abuse. He indicated that you were self-medicating to address symptoms of depression as well as anxiety. In addition to that you were also engaged in excessive alcohol consumption. He assessed you as having a substance-abuse disorder under the DSM-IV guidelines, which was, at the time of his examination, in a state of remission.
34 On the plea, Mr Swanwick, who appeared for both of you, Iosefa and Pale Fiu, indicated that the unknown fourth offender who had participated in the first three armed robberies was in fact your drug dealer, to whom you also owed money. He put on behalf of each of you, to reduce your moral culpability, that each of you were addicted to Ice and that this provided the explanation for your conduct in participating in the armed robberies. I do not accept that that does reduce the moral culpability of either of you. While drug addiction may go to explain your conduct, I do not accept on the material before me that it goes to reduce your moral culpability for the offending.
35 There is at least an argument that addiction to Ice and/or use of same at the time of offending may be an aggravating matter due to the drug’s effect on impulse control. I will not deal with each of you on that basis, but reject the proposition that drug addiction, or debts to a drug dealer, or the need for money, provide any basis for a reduction in moral culpability. Further, I do not accept the attempt by your counsel to compare and contrast your culpability with a non-addicted person who proceeds with robberies of this type for gain.
36 You each must accept full responsibility for your actions in what were planned events to obtain money. The fact that you were drug-addicted at the time is relevant to your prospects of rehabilitation. Your counsel, Mr Kolio, did not submit that addiction provided a reduction in moral culpability.
Offence Seriousness
37 Armed robbery is an inherently serious offence, as it is an offence of violence as well as against property. It carries a 25-year maximum gaol sentence, which indicates the seriousness put on it by the Legislature. Each of the individual armed robberies here were in themselves serious, and as a course of conduct also serious. The features that go to their seriousness were that they were undertaken in company, with the four of you involved in the incidents on 16 July 2012, and then only the three of you who are in the dock, in the incident on 2 August 2012. Next, each of you were disguised. One of you was wearing a balaclava, whilst the others wore makeshift clothing to conceal your features. The targets were the subject of some prior, rather amateurish surveillance. Given that you did not attempt to change clothing, the offending could almost be described as brazen.
38 Next, you were carrying serious weapons in terms of a pole, albeit a vacuum-cleaner pole, baseball bats, an imitation pistol, a machete and an axe. Each of those weapons would have frightened those who were the victims of your robberies. The female employee who had the pistol pointed at her by you, Mr Kolio, was not to know it was an imitation.
39 An additional aggravating feature of the offending was the wanton gratuitous property damage that occurred in the course of the incidents. This damage is the subject of individual counts, namely Charges 2, 4, 6 and 10. You are not to be double-punished for the armed robbery and the property damage. However, it does go to increase the seriousness of the armed robbery offences.
40 Although no victim impact statements have been filed, your counsel did not dispute that the events would have been traumatic for those involved. Indeed each of your counsel accepted the seriousness of the conduct. Being public venues, the targets here are difficult to protect against this type of conduct, and in each robbery members of the public were present. Both you Iosefa Fiu and Pale Fiu acknowledged in the record of interview the impact on the victims.
41 Considered individually and as a course of conduct, as I have indicated, these must be regarded as serious examples of an offence that is at the highest level of a non-capital offence within the criminal calendar. The offences of criminal damage associated with each of the events are also in themselves serious, and also, as I have indicated, indicate the serious nature of the armed robberies. Thus, breaking doors to achieve entry to the premises in relation to the first robbery. In that robbery glasses were smashed in the course of it. You, Pale Fiu, threatened to hit people with the baseball bat if the staff did not comply, and then proceeded to smash display units and computer consoles.
42 In the third robbery on that night, the gratuitous smashing of a glass partition also must have gone to increase the terror of the victims, and again smashing poker machines.
43 In the fourth armed robbery, a return to the Westmeadows Tavern, again there was the gratuitous smashing of four poker machines in the course of the event.
Prior convictions and personal circumstances: Michael Kolio
44 You, Michael Kolio, come before the Court with no prior convictions alleged against you.
45 Michael Kolio, you are of Samoan extraction. You arrived in Australia from New Zealand aged seven with your parents, and they remain living in Brisbane. Your mother attended on the first day of the plea. You spent the period between eight and 14 with your grandparents. You had issues with your father in the context of alcohol and violence, and thus you spent significant formative years without a proper role model.
46 You were educated at a number of schools in Brisbane, and at one stage spent a short time at a private school due to your skills at rugby, but this did not work out. Partway through Year 11 you dropped out of school and went to Canberra. You lived with an older brother. You have three older siblings, and are regarded as the black sheep of the family. In Canberra you worked for 18 months as a trades assistant, and when you were about 19 returned to Brisbane. At that point your grandfather died. He was very close to you. You then returned to Canberra and worked as a wood machinist, and when you were aged 21 went back to Brisbane for a couple of months, and at that point your grandmother died. You then returned to Canberra, where you worked for a period, and then went to Melbourne, and then back to Brisbane, where you had been working as a picker and a packer part-time. Your work history shows that until these events you have been able to obtain work and stay out of trouble.
47 Your drug-use history is that you commenced using cannabis at age 15. According to Mr Watson-Munro you did this in the context of longstanding symptoms of depression, anxiety, and low self-esteem, which could be traced back to your formative years. You were smoking cannabis at the age of 15 and that continued until you were 22. At age 17 you commenced with Ice, using a significant amount for about two years. As put by your counsel on the plea, you went to your church, and members rallied around you, and you were able to cease that addiction at that point.
48 When you returned to Melbourne in about May last year you commenced working in the tree-lopping business that was conducted by Mr Iosefa Fiu, and at that point you commenced using Ice again. It was in this context that the three of you, as well as the fourth offender, perpetrated the armed robberies the subject of this proceeding.
Report of Mr Watson-Munro
49 You were seen on three occasions after you went into custody. He found that you, at the time of the offending, had psychological problems including depressive illness, an anxiety disorder, and a substance abuse disorder. Although he notes there was a body of research material that indicates that the use of Ice does have an impact on impulse control, he found that you were in a confusional state at the time of the offences. I do not accept that any addiction or psychological problems you may have had at the time would reduce your moral culpability.
50 Mr Watson-Munro’s report is of significance, however, in that he indicates that you have expressed remorse to him and have some insight into your offending. Further, you are now in a state of remission from your drug addiction, and have professed a desire for professional assistance to address the matter. He recommends that you both be seen by the prison psychiatrist, as well as be referred to a psychologist upon your release. I will direct that a copy of his report be provided to the authorities. He assessed you at the moment as having major depression in a severe range. He further indicates that if the treatment that he has recommended with a psychologist is undertaken following your release he believes progress will be made in terms of your prognosis.
51 I have taken into account a letter to the Court in which you express remorse and insight. I have also taken into account a letter from your family pastor in Brisbane, as well as the fact that you have undertaken a number of courses while on remand. Your history to date indicates that you are a reasonable candidate for rehabilitation. First, Mr Watson-Munro indicates that you have expressed remorse and insight into your offending, and wish to address the underlying causes. You clearly need psychological assistance due to the underlying depression arising out of mental issues associated with relationship difficulties with your father.
52 Further, your lack of prior convictions, and reasonable work record, is consistent with you having reasonable prospects. In sentencing you I have given some weight to the impact of a term of imprisonment on you, given that all your family are in Queensland so you will be isolated. In addition,
Mr Watson-Munro states that you are suffering from severe depression, and this must be taken into account.
Prior convictions: Iosefa Fiu
53 You, Iosefa Fiu, have committed these offences when you were under a suspended sentence that was imposed by the Melbourne Magistrates’ Court on 16 February 2012 for driving offences. That increases your moral culpability for these offences, even though the offences are dissimilar from the driving offence for which you received the suspended sentence. You were the driver on each occasion, yet a court had disqualified you from driving. Your offending in relation to driving whilst disqualified and driving an unregistered vehicle is extremely culpable, given your prior convictions for that offence and the suspended sentence.
54 You have numerous driving offence prior convictions. Your counsel took the Court through the balance of your offending, which commenced on 2 November 2007 when, around the age of 17, you were before the Shepparton Children’s Court on a charge of armed robbery, attempted armed robbery and two counts of unlawful assault. The record of the Court indicates that you were sentenced to a 12‑month youth attendance centre order, and ordered to participate in a youth justice project, as well as noting that you needed to be provided with grief counselling in the event of the death of your mother.
55 According to your counsel these offences occurred in Mildura where your younger brother Pale was then living, and who had allegedly been assaulted, and you assaulted one of the assailants, and took his phone, and had a plastic gun at the time.
56 You breached that order, and the matter was brought back before the Heidelberg Children’s Court on 30 January 2009 when an order was made that you be detained in a youth justice centre for a period of four months. That order was appealed to the County Court, and on 8 September 2009 a nine‑month youth attendance order was imposed.
57 The offences dealt with on that date also included additional offences that had originally been dealt with on 30 January 2009. They were robbery, recklessly causing serious injury, intentionally causing injury, reckless conduct endangering serious injury, two counts of theft from a shop, and theft, and dealing with the proceeds of crime, as well as recklessly causing injury and driving in a manner dangerous. On the plea these events were said to have arisen in the course of a fight at a hotel. On appeal, you were sentenced to a concurrent nine‑month youth attendance order on those counts as well.
58 Your next prior conviction was for robbery, and you were dealt with on 9 September 2009 at the Heidelberg Children’s Court, and a 12‑month youth attendance centre order was imposed, which would have operated concurrently with the nine‑month sentence imposed the previous day in this Court on the appeals. You were also dealt with for offences of recklessly causing injury, three counts of assault, and recklessly causing serious injury. These offences occurred when you punched a driver and took his car.
59 You were before the Werribee Children’s Court on 13 December 2009 on driving offences, including stating a false name, and possessing a controlled weapon without excuse. You were fined.
60 Your next appearance was on 28 April 2011 at the Broadmeadows Magistrates’ Court where you were sentenced to a one‑month sentence of imprisonment, suspended for 12 months, for two counts of driving whilst authorisation suspended, and fined for speeding.
61 Your final appearance was on 16 February 2012 at Melbourne Magistrates’ Court where the four-month suspended sentence for two counts of driving whilst suspended was imposed. You were also fined for dangerous driving and two counts of driving an unregistered vehicle.
62 Overall, your prior convictions are significant for a man of your age. Significantly, you have two prior convictions, albeit in the Children’s Court, for robbery, one for armed robbery, as well as convictions for other offences of violence and dishonesty. In addition to that, you have a number of traffic-related convictions.
63 Further, you have been sentenced within the Children’s Court system to two youth attendance orders. Within the adult system your offending has been driving related, and you have been sentenced to two sentences of imprisonment that were suspended. Significantly, the sanctions imposed have escalated, indicating that you have not responded to earlier more lenient dispositions. For sentencing purposes in relation to the summary offences, you have four prior convictions for driving whilst disqualified, two for driving an unregistered vehicle, and one for stating a false name.
64 Overall, whilst you have an unedifying prior driving record, and some serious criminal convictions, the last appearance for an offence against a person was nearly three years before this offending. This indicates that, prior to these events, you were not descending into a life of crime, and this is relevant to your prospects of rehabilitation. I thus regard your prior convictions of limited relevance only to the principal offences here.
Prior Convictions: Pale Fiu
65 In relation to you, Pale Fiu, your appearances commence on 7 August 2007 at the Mildura Children’s Court where you were charged with theft from a motor vehicle. On 24 April 2009 at Sunshine Children’s Court you were charged with two counts of burglary, three of theft from a shop, five of attempt to commit an indictable offence, intentionally damaging property, and recklessly causing injury. These offences occurred at Mildura when you broke into a shop. You were placed on probation for five months for those offences, as well as for possessing a dangerous weapon in a public place.
66 At the Melbourne Children’s Court on 2 May 2011, on offences of driving whilst disqualified and failing to answer bail, you were fined. On the same day, on charges of unlicensed driving, careless driving, and theft of a motor vehicle, you were fined.
67 Pale Fiu, you have not appeared before an adult court before. Your prior record for non-driving offences occurred when you were aged between 15 and 17, and you have been dealt with leniently, and thus are of less significance in relation to the serious offences here. Your driving record is not good, and for sentencing purposes you have a prior conviction for unlicensed driving.
Personal Circumstances – Iosefa and Pale Fiu
68 The personal circumstances of each of you were set out on the plea. They feature a disrupted adolescence, lack of stability and parental attachment and supervision. You, Iosefa Fiu, are the oldest of six children, having been born in November 1990. You, Pale Fiu, were born in April 1992, so you are 18 months younger than your older brother, and nearly three years younger than Mr Kolio.
69 When you were aged five, Iosefa Fiu, your parents, who came from Auckland in New Zealand, arrived in Australia. They commenced living in Brisbane, then moved to Sydney, and ultimately to Victoria. Each of you report a good relationship with your mother.
70 You, Iosefa Fiu, indicate that your father would drink alcohol to excess, and was controlling and demanding, and you felt significant pressure to live up to his expectations in sport. You were also pressured to provide your younger brothers with a good example.
71 You, Pale Fiu, indicated that you also felt pressure to succeed in sport, and that your father was violent to you. It appears that your father has apologised to you, Pale, for his violent behaviour.
72 The family moved frequently. Each of you attended three different primary schools, and both of you attended Bayswater Secondary College. You, Iosefa Fiu, left secondary school during Year 11 due to your mother’s serious illness from which she subsequently passed away. You, Pale, completed Year 9 at Chaffey Secondary College and left during Year 10 when your mother became ill.
73 Iosefa Fiu, you gained employment with the Kingdom Group for a year, and then started working for your uncle in a tree-lopping business, and worked in that business for two or three years before commencing your own business in 2011, which continued for approximately two years.
74 You, Pale Fiu, also worked with the Kingdom Group on and off for two or three years, and then also worked fencing, and then commenced working with your brother in his business, commencing in 2011.
75 In terms of drug and alcohol history, you, Iosefa Fiu, told Dr Cunningham, psychologist, that you commenced using cannabis at the age of 17 following the death of your mother, and then after her death also started using methylamphetamine, and did that for some time before stopping use of the drug for a period. You then felt low and depressed, and relapsed, and were using significant amounts. You have never been the recipient of any drug rehabilitation.
76 Dr Cunningham assessed you as not having any psychotic illness but presenting with ongoing symptoms of loss related to the death of your mother. He assessed your intelligence and found it to be within the average range without any intellectual impairment.
77 An important matter in the plea was your role as the eldest son. It appears that after you left home and were working in Melbourne you continued to remit to your father in Shepparton about $500 every fortnight to assist him to raise your younger siblings. This ceased in about May 2012, which was shortly before the offending, and when you claim you were suffering from severe addiction.
78 In terms of your prospects of rehabilitation, Dr Cunningham recommends that you would benefit from drug and alcohol counselling and also grief and loss treatment. He notes that you now have a supportive father, as well as support from community members who were present on the plea. Further, you have engaged with your drug problems in the sense of being assessed by Mr Dieni. He views these matters as reducing your risk of re‑offending.
79 In terms of your overall rehabilitation, you clearly have a significant work ethic, in that you were able to establish and continue a business for a period of nearly two years, for which you are to be commended, and which would indicate that upon your release you have an ability to re-integrate into the workforce.
80 Overall, I would assess your prospects of rehabilitation as reasonable. You have failed to respond to Children’s Court sanctions, yet your non-driving related offending has not escalated, and you have not actually served a term of imprisonment, nor been previously treated for your drug problems that are at the seat of this offending. You have a supportive family and church, but only time will tell whether you can turn your life around.
81 Turning to you, Pale Fiu, a significant matter in relation to your prospects of rehabilitation is that you have written a letter evidencing remorse and insight into your offending. You have used your time on remand to undertake a number of courses. I have also considered a letter from the Shepparton branch president of the Mormon church, who knows you and the family and is of the belief that you have learnt a lesson from your current incarceration. He says you are an industrious young man with fine character underpinning. He said similar things in relation to you Iosefa Fiu and I have taken that into account.
82 In relation to you, Pale Fiu, like your older brother you have had a disrupted schooling, and left school during Year 10. You also present with ongoing symptoms of grief and loss related to the death of your mother, and have a similar psychometric assessment to your older brother, in that you are in the average range of intelligence, without any indication of intellectual impairment.
83 It appears that after your mother passed away you effectively ran away from home, and that is why you ended up in Mildura, whilst your father remained in Shepparton. It was when you were in Mildura, effectively on your own, that you first became engaged with the criminal justice system. It was then that you commenced to use methylamphetamine.
84 You have been assessed by Mr Dieni, and have the support of your father. You provided on the plea a clean drug-screen performed at the Melbourne Remand Centre, and you have also undertaken a number of courses whilst on remand. These matters bode well for you in terms of rehabilitation.
85 Overall, Mr Pale Fiu, I would regard your prospects of rehabilitation as good. Unlike your older brother, you have had a lesser engagement with the criminal justice system. At your age, despite the seriousness of the offending here, the interests of the community in your rehabilitation must be given considerable weight.
Issues of Parity
86 On the plea, neither counsel submitted that any one of the three of you ought to be seen as the ringleader of this offending. In terms of the conduct of the three of you in the course of the four separate incidents, there is little to distinguish each of you. You each played a role, and by your plea you have admitted acting in concert. One area of possible distinction is in relation to the fourth incident, where you, Iosefa Fiu, were the one who proceeded to rob two individuals of their wallet and purse while your co‑offenders were obtaining cash from the cashier.
87 In relation to this incident, I accept the submission of your counsel, Michael Kolio, that it is appropriate that that offending be addressed by a concurrent sentence with that on Charge 7, the armed robbery on the Westmeadows Tavern. You have pleaded guilty to those offences, and that must be on the basis that the conduct of the actual perpetrator was within the scope of the concert between the three of you or alternatively, by way of the doctrine of extended common purpose. I do not accept, therefore, that there ought be a lesser sentence on you in relation to the armed robberies on the two individuals, namely Charges 8 and 9. While I have given full credit for your pleas of guilty, I do not regard the pleas as any more significant in relation to these particular offences, as I regard the Crown case as strong and there is no evidence you did not share in the proceeds. You really had no forensic alternative.
88 In relation to you, Michael Kolio, and you, Iosefa Fiu, I regard it as appropriate to provide similar sentences in relation to the common charges on the indictment. This is not withstanding that I have taken into account the impact of imprisonment on you in terms of your current depression and separation from your family in Queensland Mr Kolio.
89 You, Michael Kolio, are about 18 months older than Iosefa Fiu, and Pale Fiu is 18 months younger than his older brother. In addition, Iosefa Fiu, you have more prior convictions than your younger brother, This is relevant to your culpability for the offending, and to parity between the two of you.
90 While I regard the prior record of you, Mr Iosefa Fiu, as of limited relevance, it is of sufficient weight to essentially balance the age difference between you and Mr Kolio, so that similar sentences on the common counts are called for, notwithstanding, as I have indicated, Mr Kolio has no prior convictions. Another matter that I have weighed on the issue of parity is the issue of remorse. In the case of you Iosefa Fiu, I find there is strong evidence of remorse. You made a full confessional statement upon your arrest, and have followed that up with drug assessment from Mr Dieni, an early plea of guilty, courses while on remand, and a letter to the court.
91 In your case Mr Kolio, you have made an early plea of guilty and written to the Court, undertaken courses, and have been assessed by Mr Watson-Munro, and also expressed remorse, but I regard the evidence on this point as not quite as strong as that in relation to Mr Iosefa Fiu.
92 Overall I have accepted the submission of both counsel as to longish periods during which you will all be eligible for parole. In your case, however,
Mr Iosefa Fiu, as you have not responded to sanctions previously, in order to meet all the purposes of sentencing, you will be required to serve a longer period before you will be eligible for parole, than Mr Kolio.
93 Given the younger age of you, Pale Fiu, being just over twenty at the time of the offending and not yet 21, I regard it as appropriate to provide for lesser sentences on the relevant offences, as it is a fair inference that you would be led by your two older fellow prisoners. Your age is also relevant to your prospects of rehabilitation, and in fixing a non-parole period.
Structure of Sentence
94 The offences on 16 July 2012 were a course of conduct, particularly the second and third incidents, which occurred only an hour or so apart. At the same time, the damage sustained in each of the four events varied from modest to significant. Within the principles of totality, I regard it as proper to order some modest cumulation on the charges on that day. I regard the fourth incident as the most serious incident as you targeted a location that you had raided previously and which you must be taken to have premeditated, and in addition there was the robbery perpetrated upon the two patrons.
Other matters in mitigation
95 The Crown accepted that each of you have pleaded guilty at the earliest opportunity. This has saved resources in terms of a committal and a trial. In relation to each of you I give you full credit for the plea of guilty. In relation to each of you, the plea is also evidence of remorse. There is also evidence of remorse as I said, in the letters each of you have written to the Court and in your actions on remand.
Summary and driving offences
96 The driving offences I regard monetary penalties as appropriate for the two of you Fiu brothers. The driving offences to which each of you have pleaded guilty must also be considered.
97 In relation to the driving offences, you, Mr Iosefa Fiu, must be sentenced to terms of imprisonment for the driving whilst disqualified, given your prior driving record.
98 As the driving offences can be seen as a course of conduct, and having regard to considerations of totality I propose to impose an aggregate sentence of imprisonment on you in relation to those offences Mr Iosefa Fiu and monetary penalties for the other two offenders.
Purposes of Sentencing
99 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and re-integrated into society.
100 Weighing these competing considerations in the case of this spate of criminality is difficult. General deterrence, denunciation, specific deterrence and protection of the community loom large. Your conduct on those four occasions is to be utterly condemned. Gaming venues are entitled to the protection of the law from those who would seek to target their cash reserves. Innocent patrons and employees are entitled to go about their daily lives without having weapon wielding bandits holding them up and inflicting mindless damage on the facilities. Those who perpetrate these types of offences, whether to feed drug addiction or otherwise, must expect heavy sentences to express the community outrage and to deter others.
101 At the same time, you, Mr Kolio, and you, Mr Iosefa Fiu, are relatively young men who have never been to prison before. Mr Pale Fiu, you remain under 21 and have not been before an adult court before.
102 Clearly it is in the community interest that any sentence of imprisonment does not crush each of you and result in your institutionalisation. Rehabilitation must be accorded weight, notwithstanding the seriousness of the offending here, and I have sought to achieve this.
103 Overall, while the offending is serious, viewed individually or as a course of conduct, your ages and lack of significantly relevant antecedents are such that, as submitted on the plea, it is in the community interest that in the sentencing synthesis, your relative youth must be accorded significant weight in a way that it would had you not been in your mid to late 20s or with significant similar prior convictions.
104 Given that drug addiction was at the base of the offending, it is clearly also in the community interest that you have the opportunity to address your drug use, and upon release have appropriate support to re-integrate into the community, and resume the generally productive lives that you had previously led.
Sentencing Range
105 The Crown submitted a sentencing range of a head sentence of seven to nine years and a non-parole period of five to seven years for you, Mr Kolio; nine to 11 years with a non-parole period of seven to nine years for you, Mr Iosefa Fiu; and seven to nine years with a non-parole period of five to seven years for you, Pale Fiu.
106
I regard the proffered range as too high and failing to give sufficient regard to current sentencing practices, to issues of totality, and also to reflect that each of you, Michael Kolio and Iosefa Fiu, are relatively young men, with you
Mr Kolio, having no criminal history and you, Mr Iosefa Fiu, without at this stage an entrenched criminal history. Similarly, Mr Pale Fiu, you are not yet 21 and so considerations of your rehabilitation must as I have said, remain salient despite the seriousness of the offending.
Other Orders
107 The Crown has sought a number of other ancillary orders namely compensation, disposal, forfeiture and forensic sample orders. The seriousness of the offending is such that I regard it as appropriate to order forensic sample orders and I must advise you that the authorities have the right to use reasonable force to obtain a buccal swab from each of you.
SENTENCE TABLE
| Charge | Offence | Maximum penalty | Michael Kolio Sentence & (Cumulation) | Iosefa Fiu Sentence & (Cumulation) | Pale Fiu Sentence & (Cumulation) |
| 1 | Armed Robbery | 25 years | 3 yrs 6 mths (9 mths) | 3 yrs 6 mths (9 mths) | 2 yrs 9 mths (5 mths) |
| 2 | Destroy/Damage Property | 10 years | 2 mths | 2 mths | 1 mths |
| 3 | Armed Robbery | 25 years | 3 yrs 6 mths (6 mths) | 3 yrs 6 mths (6 mths) | 2 yrs 9 mths (4 mths) |
| 4 | Destroy/Damage Property | 10 years | 6 mths (1 mths) | 6 mths (1 mths) | 4 mths |
| 5 | Armed Robbery | 25 years | 3 yrs 6 mths (6 mths) | 3 yrs 6 mths (6 mths) | 2 yrs 9 mths (4 mths) |
| 6 | Destroy/Damage Property | 10 years | 9 mths | 9 mths | 6 mths |
| 7 BASE | Armed Robbery | 25 years | 4 yrs | 4 yrs | 3 yrs 3 mths |
| 8 | Armed Robbery | 25 years | 3 yrs | 3 yrs | 2 yrs 3 mths |
| 9 | Armed Robbery | 25 years | 3 yrs | 3 yrs | 2 yrs 3 mths |
| 10 | Destroy/Damage Property | 10 years | 12 mths (2 mths) | 12 mths (2 mths) | 9 mths (1 mth) |
| 11 | Possess Drug of Dependence | 1 year | N/A | $150 | N/A |
| 12 | Possess Drug of Dependence | 1 year | N/A | $150 | N/A |
| 13 | Possess Drug of Dependence | 1 year | N/A | N/A | $100 |
| TOTAL FINES (incl. Summary Charges) | |||||
| $400 | $700 | $250 | |||
| AGGREGATE SENTENCE ON SUMMARY CHARGE TOTAL EFFECTIVE SENTENCE | 6 mths (2 mths) | ||||
| 6 yrs | 6 yrs 2 mths | 4 yrs 5 mths | |||
| NON-PAROLE PERIOD | 3 yrs 4 mths | 3 yrs 8 mths | 2 yrs 5 mths | ||
| PRE-SENTENCE DETENTION | 182 days | 182d | 182d | ||
| S.6AAA DECLARATION * revised | 8 yrs 6 mths 5 yrs 8mths* | 8 yrs 10 mths 5 yrs 10 mths* | 6 yrs 4 mths 4 yrs 3 mths* | ||
SUMMARY CHARGE SENTENCE TABLE
MICHAEL KOLIO
| Summary Charge | Offence | Date of Offence | Aggregate Sentence |
| 39 | Unlicensed Driving | 25/7/2012 | $200 |
| 40 | Use Unregistered Motor Vehicle | 25/7/2012 | $200 |
| 41 | Unlicensed Driving | 26/7/2012 | See 39 |
| 42 | Use Unregistered Motor Vehicle | 26/7/2012 | See 40 |
IOSEFA FIU
| Summary Charge | Offence | Date of Offence | Aggregate Sentence & (Cumulation) |
| 39 | Drive Whilst Disqualified | 25/7/2012 | 6 mths (2 mths) |
| 40 | Use Unregistered Motor Vehicle | 25/7/2012 | $400 |
| 41 | Drive Whilst Disqualified | 26/7/2012 | See 39 |
| 42 | Use Unregistered Motor Vehicle | 26/7/2012 | See 40 |
| 44 | Use Unregistered Motor Vehicle | 27/7/2012 | See 39 |
| 45 | Drive Whilst Disqualified | 27/7/2012 | See 39 |
| 46 | Use Unregistered Motor Vehicle | 6/8/2012 | See 40 |
| 47 | Fail To State Name/Address | 6/8/2012 | See 40 |
| 48 | Drive Whilst Disqualified | 6/8/2012 | See 39 |
| 50 | Drive Whilst Disqualified | 8/8/2012 | See 39 |
| 51 | Use Unregistered Motor Vehicle | 8/8/2012 | See 40 |
PALE FIU
| Summary Charge | Offence | Date of Offence | Aggregate Sentence |
| 39 | Unlicensed Driving | 25/7/2012 | $150 |
| 40 | Use Unregistered Motor Vehicle | 25/7/2012 | See 39 |
108 The cumulation orders are as follows: In relation to you Michael Kolio, the base sentence is Charge 7 and I will order that nine months of the sentence on Charge 1 be served cumulatively on the base sentence, six months of the sentence on Charge 3, one month of the sentence on Charge 4, six months of the sentence on Charge 5 and two months of the sentence on Charge 8, be served cumulatively on the base sentence and on each other making a total effective sentence of six years’ imprisonment.
109 I direct that you serve a non-parol period of three years and four months and the total fine that is imposed on you is $400 and I give you a month to pay that fine.
110 Mr Iosefa Fiu, the base sentence is four years on Charge 7 and I order that nine months of the sentence on Charge 1, six months of the sentence on Charge 3, six months of the sentence on Charge 5 and two months of the sentence on Charge 8 and two months of the 6 months aggregate sentence of the driving whilst disqualified, be served cumulatively on these sentences, making a total effective sentence of six years and two months’ imprisonment.
111 I direct that you serve a minimum term of three years and eight months before being eligible for parole and the total fine that I impose on you is $700, and I give you a month to pay that fine.
112 In relation to you Pale Fiu, the base sentence is Charge 7, three years and three months’ imprisonment. I direct that five months of the sentence on Charge 1, four months of the sentence on Charge 3, four months of the sentence on Charge 5 and one month of the sentence on Charge 8, be served cumulatively on the base sentence, making a total effective sentence of four years and five months’ imprisonment.
113 I direct that you serve two years and five months before being eligible for parole. The total fine imposed on you is $250 and I give you a month to pay that fine.
114 I declare that each of you has served 182 days’ pre-sentence detention.
115
I declare that had you not pleaded guilty, Mr Kolio, I would have imposed a total effective sentence of eight years and six months’ imprisonment with a non-parole period of 5 years and 8 months. In relation to you,
Mr Iosefa Fiu, had you not pleaded guilty I would have imposed a total effective sentence of eight years and ten months’ imprisonment with a non-parole period of 5 years and 10 months. In relation to you, Pale Fiu, had you not pleaded guilty I would have imposed a total effective sentence of six years and four months’ imprisonment with a non-parole period of 4 years and 3 months.
116 Madam Prosecutor have you got any further orders to hand up?
117 MS TAYLOR: I do not Your Honour.
118 HIS HONOUR: I will make the orders.
119 I make a compensation order that each of you pay $200 to Ms Racenes who is the victim in Count 8 and I order that you pay $160 to Carol Gee who was the victim in Count 9. I order that the Land Rover be forfeited or seized by the police as well as cash that was seized by the police when they attended at your premises on the search warrant.
120 I order that all the property that the police seized, mobile phones, clothing, be disposed of. I take this opportunity to convey to the police my commendation for their comprehensive investigation of this matter. I make a 464ZF sample against each of you as I have indicated, having regard to the seriousness of the offending here.
121 I thank counsel for their assistance on the plea, and those people who have attended the plea and sentence.
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