Director of Public Prosecutions v Maalo
[2019] VCC 1660
•11 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-01463
CR-19-00577
CR-19-01018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAPLO MAALO |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2019 | |
DATE OF SENTENCE: | 11 October 2019 | |
CASE MAY BE CITED AS: | DPP v Maalo | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1660 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery, theft and others
Sentence: Three and a half years' imprisonment with a non-parole period of 28 months' imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. D'Arcy | |
| For the Accused | Mr R. Barton |
HIS HONOUR:
1 Baplo Maalo, you have pleaded guilty to one charge of armed robbery for which the maximum penalty is imprisonment for 25 years. You also pleaded guilty to one charge of theft for which the maximum penalty is imprisonment for ten years. Those charges were contained in Indictment H12321031.A which I will hereafter refer to as Indictment A.
2 You also pleaded guilty to a number of charges that were charged on a separate Indictment H12321031.D which I will hereafter refer to as Indictment D. Those charges were as follows. Theft of a motor vehicle, Charge 1, for which the maximum penalty is imprisonment for 10 years. Two charges of possession of a drug of dependence, Charges 2 and 3. In Charge 2 you possessed the drug known as GHB. It was a small vial amount for which the maximum penalty is imprisonment for five years. In Charge 3, it was a small amount of cannabis, not possess for trafficking, for which the maximum penalty is five penalty units. There were two charges of handling stolen goods, Charges 4 and 5, for which the maximum penalty is imprisonment for 15 years.
3 In addition you also pleaded guilty to three related summary charges and you agreed to me sentencing you on those summary charges, Charges 29, 30 and 44.
4 The circumstances of your offending are contained in a written summary of prosecution opening which was tendered in evidence and marked as Exhibit A on the plea. It was read in open court by the prosecutor Mr D'Arcy, and your counsel Mr Barton agreed that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. In those circumstances it is not necessary that I here repeat in detail a full description of your offending and will do so only in an abbreviated way. These sentencing remarks should however be read in conjunction with what is set out in the prosecution summary.
5 Dealing first with the offending charge in Indictment A. On 6 August 2016 you and others were at a house in Doveton. The victim had driven his Holden Commodore car to the house. You told the victim you wanted to speak with him and you both entered the bathroom where you told the victim the victim to sit down on the toilet seat. You then produced a small hammer and held it up as if you were going to strike the victim. You also produced a pair of plyers and some bolt cutters which you placed on the victim's nose and you threatened to cut him with those tools if he did not answer your questions. You demanded the victim take everything out of his pockets. The victim was scared by your actions. The victim produced his car keys, house keys and a wallet and his driver's licence. Charge 1, armed robbery.
6 After a short time you left the scene in the victim's car. Charge 2, theft of a motor vehicle.
7 The victim later identified you and police enquiries led to a warrant being executed at your home on 21 August 2016.
8 I admitted into evidence a Victim Impact Statement from the victim of the offences in Charges 1 and 2. He is a person of mild intellectual disability, having previously suffered an acquired brain injury. He believes you targeted him because of this. As a result of your use of weapons he is still scared to go out at night. He is fearful that this kind of occurrence may be repeated on him. In passing sentence I have taken the Victim Impact Statement into account.
9 The offending in the charges of armed robbery and the theft of the victim's car are serious examples of what is a serious offence. However I treat your offending as being opportunistic and unplanned and fairly unsophisticated. What makes it a serious example is that you used the tools as a weapon against the victim and thereby created what was undoubtedly for him a terrifying situation which has left him adversely affected. However the circumstances of the armed robbery place your offending towards the lower end for this kind of offending.
10 You stole the car keys as part of the armed robbery and you then stole the car. There must be concurrency in the sentences between these two charges and the sentence that I will shortly pass will reflect this.
11 Turning to the offending charge in Indictment D and the related summary charges. These charges resulted from information gained by police when they executed a search warrant at your home on 17 August 2017. That is more than a year after the offending in Indictment A. Each of the offences charged occurred on that day, 17 August 2017. A warrant was executed whilst you were at home asleep in bed and you were arrested on that day. You were remanded in custody and you have been in custody since that day. There was some conjecture as to the amount of pre-sentence detention to be declared and giving you the benefit of any doubt you have been in custody for 763 days. The police searching your premises located another vehicle that had been loaned to you but which you had never returned assuming the rights of the lawful owner. Charge 1, theft of a motor vehicle.
12 In your bedroom police located a vial containing a small amount of the drug known as GHB. Charge 2, possession of a drug of dependence . And a small amount of cannabis, Charge 3, possession of a drug of dependence. Within the vehicle the subject of Charge 1 which was parked outside the front of your home, police located a number of items suspected of being the proceeds of crime, related summary Charge 29 and maximum penalty two years' imprisonment. And two identification cards, Charges 4 and 5.
13 At the time of this offending you were on bail for other offending having been bailed on 21 July 2017. Related summary Charge 30, commit an indictable offence whilst on bail, maximum penalty three months' imprisonment or 30 penalty units. You admitted to police that you had been driving and at the time you had been disqualified from driving. Related summary Charge drive whilst disqualified. This occurred in circumstances where you have a prior conviction for this offence so that the maximum penalty is 240 penalty units or two years' imprisonment.
14 In my judgment the offending charged in Indictment D and the offending in related summary charges is all low level offending for the offending of the kind charged. The charge of theft of a car in circumstances where you assumed ownership is a low level charge for offending of this kind. The charges of possession of drugs for self-use are also low level offending. Perhaps the most serious of the charges is the summary Charge 29, dealing with property reasonably suspected of being stolen.
15
There was a contested committal in relation to the charges on Indictment A. There followed two directions hearings and the charges were listed for trial in the reserve list and the charges in Indictment A then resolved into a plea. There followed a trial on other charges that had been charged in two other indictments, namely Indictments H12321031.B and H12321031.C. I heard argument and ruled on the admissibility of evidence in relation to those charges on
30 September and after some proposed some photo board evidence was ruled inadmissible by me, the prosecution announced it would discontinue with the charges in both of those indictments.
16 Although you have not pleaded guilty to all of the charges presently before me for sentencing at an early time, I nevertheless treat you as having pleaded guilty at an early time. By your pleas of guilty you have saved the time and cost of two trials. By your guilty pleas you have admitted responsibility for your offending and you have advanced the administration of justice. You have saved the victims from having to give evidence and be cross-examined. For these reasons you are entitled to a reduction in sentence. I also treat your pleas of guilty as evidence of remorse on your part for your offending. The reduction in sentence that I have afforded to you because of your pleas of guilty will be set out in the sentence that I will shortly deliver.
17
You are now aged 26 and you have admitted a limited criminal history. In June of 2013 you were dealt with in the Dandenong Magistrates' Court mostly for dishonesty offences, and you received a Community Correction Order with convictions for 12 months. On 25 August 2016 after the offending now charged in Indictment A but about 12 months before you were in fact charged, you were again before the Dandenong Magistrates' Court mostly for driving and dishonesty offences and an unlawful assault. You received a term of imprisonment of 60 days, then time served and a Community Corrections Order which you completed. I refer to this not because the matters dealt with on
25 August 2016 are prior convictions, but to set out the complete picture that now brings you before the court for sentencing.
18 I refer to other matters related to your background history. In 2012 you migrated from New Zealand to Australia. You are of Samoan heritage and a citizen of New Zealand. You had a special category visa extended to New Zealand citizens but that has now been revoked and you are classed as an unlawful non-citizen in Australia. Because of your prior convictions and sentences that I will pass, you will likely be deported on release and I accept this fact may have weighed heavily upon you whilst in custody making your time in prison harder than for most prisoners.
19 You came to Australia for work. You are the youngest of seven siblings. You migrated from Samoa to New Zealand aged three and you were raised in New Zealand until age ten. You first came to Australia with your parents aged ten but your parents returned to New Zealand where you were made a citizen. You attended high school in New Zealand and completed Year 11 and thereafter trained in logistics and transport. You came to Australia because of an economic downturn in New Zealand and lived with your sister. Eventually all of your siblings came to Australia and all have permanent residency here. A number of your siblings and their children were in court to support you. It was obvious that you are a close knit family and that you enjoy good family support. Your family has been visiting you in custody.
20 You have had a good work history, first in factory work and warehousing but recently you had established your own landscape gardening business. You were married and you had a child in 2014 and your wife left you soon after and you have not seen your child whilst on remand although your former wife has visited you on remand. Whilst on remand you have used your time well completing a number of courses. I was told that soon after you and your wife separated your life spiralled into drug use. You were using methamphetamine and cannabis and all of your offending occurred in this context. You are still relatively young and you have a good family support. You have a limited criminal history which I accept has all occurred in a background of drug use. Absent use of drugs I think your prospects for rehabilitation are reasonable. Whether or not you can achieve rehabilitation depends on you staying away from drugs, and whether or not you do that is entirely up to you.
21 There was no issue in this case that I must sentence you to a term of imprisonment and fix a non-parole period. As I have indicated earlier, these are serious offences but in the circumstances towards the lower end. In passing sentence I must have regard to deterrence both general and specific and the sentence passed must denounce your offending. I must also have regard to your prospects for rehabilitation and the sentence passed must represent just punishment of you. I believe the sentence that I will now pass reflects these sentencing principles.
22 On Charge 1 in Indictment A, armed robbery, you are convicted and sentenced to a term of imprisonment of three years.
23 On Charge 2 in Indictment A, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of three months and any licence or permit that you hold to drive the motor vehicle is cancelled and you are disqualified from driving for a period of three months.
24 On Charge 1 in Indictment D, theft of a motor vehicle, you are convicted and sentenced to a term of imprisonment of three months and any licence or permit that you hold to drive a motor vehicle is cancelled and you are disqualified from driving for a period of three months.
25 On Charge 2 in Indictment D, possession of a drug of dependence GHB, you are convicted and discharged.
26 On Charge 3 in Indictment D, possession of a drug of dependence cannabis in a small quantity, you are convicted and discharged.
27 On Charge 4 in Indictment D, retention of stolen goods, you are convicted and sentenced to a term of imprisonment of three months.
28 On Charge 5 in Indictment D, retention of stolen goods, you are convicted and sentenced to a term of imprisonment of three months.
29 On summary Charge 29, you are convicted and sentenced to a term of imprisonment of six months.
30 On summary Charge 30, you are convicted and sentenced to a term of imprisonment of one month.
31 On summary Charge 44, you are convicted and sentenced to a term of imprisonment of one month.
32 I direct that one month of each of the sentences imposed on Charges 1, 4 and 5 in Indictment D, and three months of the sentence imposed in summary Charge 29, cumulate upon the sentence imposed on Charge 1 in Indictment A making a total effective sentence of three and a half years' imprisonment. And I direct that you serve the minimum term of 28 months' imprisonment before being eligible for release on parole.
33 I note that you have served 763 days pre-sentence detention. Accordingly pursuant to s.18(4) of the Act, I declare that the period of 763 days be reckoned as time already served under the sentences passed this day be noted accordingly in the records of the court and deducted administratively.
34 For the purposes of s.6AAA of the Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years' imprisonment and I would have fixed a non-parole period of four years.
35 I have been asked to sign forfeiture orders and disposal orders. They were not opposed and accordingly I will sign them.
HIS HONOUR: Are there any questions arising out of that Mr Barton?
MR BARTON: No Your Honour.
MR D'ARCY: Your Honour.
HIS HONOUR: Mr Maalo, the result of all that is that you will be eligible for parole after 28 months, do you understand?
OFFENDER: Yes Your Honour.
HIS HONOUR: And with time served that should be coming up fairly shortly I would have thought.
MR BARTON: About three months Your Honour.
HIS HONOUR: Yes. take Mr Maalo back into custody please.
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