Director of Public Prosecutions v Mafi
[2014] VCC 1122
•16 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-14-00729
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ULUAKI MAFI |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 16 July 2014 |
| CASE MAY BE CITED AS: | DPP v Mafi |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1122 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Armed robbery – crime committed as a child – co-accuseds – driving without a license – threat to inflict serious injury on two police officers – full admission
Legislation Cited: Crimes Act 1958 – Road Safety Act 1986 - Children, Youth and Families Act 2005 - Sentencing Act 1991
Cases Cited: The Queen v PJB [2007] VSCA 242
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H Devanny | |
| For the Offender | Ms F Todd |
HIS HONOUR:
1Yes, well Mr Mafi, you can remain seated while I explain the reasons for the sentence I am going to pronounce upon you. The importance of that is so that you understand the reasons and your family as well, but also so there is a record should any other persons be involved, or want to be involved.
2In this matter Mr Mafi pleaded guilty on 14 July 2014 to four charges in Indictment No.E10536005. Ms Todd appeared on behalf of Mr Mafi and Ms Parker appeared on behalf of the director and Ms Devanny now appears today.
3The first charge of armed robbery is an offence against s.75A(1) of the Crimes Act. It occurred on 15 September 2010. It was committed against the victim, a Mr Yasser, who was the attendant at the Apco Service Station being conducted on that particular night in Cranbourne. The offence took place at 139. The sum stolen was $2887.54 made up of $2276.65 of cigarettes and $610.89 in cash.
4Mr Mafi utilised a screwdriver, the full circumstances of each of these crimes being set out in Exhibit A of the prosecution opening, for which Ms Todd accepted as appropriately detailing the facts.
5What stands out in this case, and stands out remarkably, is this armed robbery being committed by a 13 year old boy, a 14 year old boy, and two 15 year old boys, Mr Mafi being one of the 15 year old boys. Despite his age, Mr Mafi, given his size, has the look of a large adult, and apparently you had that look at the age of 15.
6The manner in which Mr Yasser was treated entitled him to be terrified in the particular circumstances, although there is no victim impact statement that's been filed on his behalf. He was subject to, in the circumstances, not only the threat with the use of a screwdriver but further threats uttered by the others when they came in to the premises.
7I must say, I have had to deal with some amazing crimes in the 20 years I have been doing this job, but this is as concerning as any. I cannot comprehend how boys of this age can commit such a serious crime. I do not know what they were doing, what they were on, whether they were looking at some strange movie, but it is almost incomprehensible. We are, after all, talking about one of the most serious crimes in the Crimes Act, there is an abhorrence in the community for these types of offences, and the intent of Parliament is, when innocent persons going about their business are attacked in this way, at 1.39 am at night, that condign punishment should be meted out. In those circumstances a maximum penalty of 25 years has been prescribed.
8The second count on the indictment relates to circumstances prior to this time. This offence is not all that unique for persons of the ages that I have described. A 1987 Toyota was stolen from the house of the owner Kenneth Jansz. Attached to that was the fact that Mr Mafi was the person who drove the car. Mr Mafi has asked the Court to take in to account a summary charge of driving without a license, an offence under the Road Safety Act 1986 for which the maximum penalty which can be imposed is 25 penalty units. The offence of theft itself is an offence against s.74(1), that is Charge 2 on the indictment, for which again a severe penalty is imposed, a maximum penalty of ten years.
9Subsequent to these matters, and I am not fully cognisant of how the police came to be aware that Mr Mafi was involved, however through police work they attended at Mr Mafi's home two days later, only to be told that because of his uncontrollable conduct within the home he had been sent back to Fiji and would be away for some five years. Despite the seriousness of the matter no steps apparently were taken by the authorities to extradite him to Australia, no doubt because of his age.
10As I have earlier indicated, Exhibit 3 shows that the three co-accused were subsequently dealt with before the Children's Court. One of them was dealt with on 10 February 2011, which was the subsequent year. One was dealt with in the same year, on 16 December. One was dealt in the following year on 22 June.
11I point out that these were still boys aged 13, 14 and 15. They were all subject to the jurisdiction of the Children's Court and it is important to make the point that the Children, Youth and Families Act 2005 provides for a completely different regime of sentencing. That is because the Parliament has decreed that when one is sentencing children, even for serious offences, completely different considerations come in to being, the fundamental consideration being the hope of the community that rehabilitation can be effected.
12Consequently, the first of the co-accused, without a conviction, was released on a good behaviour bond, the second of the co-accused without a conviction was placed on probation, the third co-accused was also, without conviction, given a good behaviour bond.
13As I have already said, it was hoped by the family that Mr Mafi would be in Fiji for a period of five years. It was further hoped, by way of the regime that he was subject over there, to that he would effectively be rehabilitated. In fact he did return not in five years, but in December 2013 to Australia, and despite an appropriate warning being registered, apparently, with customs, he was not arrested upon re-entering the country. However he was subsequently arrested at Westall Railway Station in the following January, when, having been at a party and having had too much alcohol, he was approached by two police officers at the Westall Railway Station. They thought he was in a drugged condition. He subsequently said it was not drugs, but alcohol.
14Both Charges 3 and 4 on the indictment, having occurred on 9 January 14, are rolled up charges, the particulars of which are set out in Paragraph 17 - 21, but involved quite dramatic threats to each of these police officers. I point out, albeit police officers, they were female police officers, and apparently of significant difference in size to Mr Mafi and of such a difference that when these threats were made it was felt that reinforcements were required and they were called for. These charges are offences under s.21 of the Crimes Act, the maximum penalty for such is one of five years.
15In the record of interview that was subsequently conducted, Mr Mafi accepted that he was the main perpetrator, coming about more because of his size, and he was the person who entered the premises and made the threat, insofar as the armed robbery was concerned, with the screw driver. He made an appropriate comment in that record of interview, insofar as his role, at Question 99, when he was asked what was his reason for committing the armed robbery? He answered: "To be honest I don't know. I was young man. I was stupid. There was no excuse man. I was just a dickhead, that's all." Probably no truer words have been said.
16Insofar as the subsequent offences, he was also asked at Question 172, what was his reason for threatening to inflict serious injury upon these two officers and he answered this, "Because they came to me when I was - I just wanted to go home and they just came at the wrong time, I guess. That's what alcohol does to you." Clearly while the officers thought that Mr Mafi was drug influenced, he has suggested the real answer was it was alcohol, and we're told on the plea that in fact he had been to a relative's party and had drunk alcohol to excess.
17The issue as to what to do with Mr Mafi in these circumstances is one of much difficulty. I was particularly assisted insofar as the outline of sentencing submissions that was provided to the court by Ms Todd, I think I indicated that should be marked for identification, Exhibit 2, defence submissions. Exhibit 1 that was tendered on his behalf was a confirmation of the training that was while he was in Fiji.
18It was pointed out that the purpose of that training, and somewhat rugged training, as one understands it, was to try and change his behaviour. Indeed he completed a two year qualification as a fitter and turner at a premises which is known as the Montfort Boys Town, a trade and boarding school for what are known as difficult boys. It is said that he disassociated himself from his former peer group. Well I suppose that is obvious in the sense that he was now in Fiji. Since he has come back he has been getting some casual work and he continues to live with his mother and sister and his maternal grandparents, and they are here supporting him today. The qualification he in fact got in Fiji does not necessarily qualify him for a job as a fitter and turner here and he will need more study.
19The police attended the premises two days after the robbery, but missed him as he had been sent back to Fiji. It was put that I should not take an adverse of the family in that regard, and I do not. There is no evidence, or suggestion by the Crown that there was any deliberate avoidance of the law by the family.
20As has been pointed out, in the record of interview Mr Mafi made full admissions. As I said, there are particular difficulties involved when having to sentence a person who was a child at the time of offending, and really is only just an adult, having turned 19 last September.
21I was referred to the appropriate authorities, in particularly The Queen v PJB [2007] VSCA 242 and a quotation therefrom. There are of course difficult issues in the application of an appropriate sentence, and as I said, these are pretty bizarre circumstances and I refer again to the comments I have made insofar as the armed robbery is concerned.
22In the end, by way of a totality of those principles, and the difficult issue of sentencing a person for offences that occurred when he was a child as defined by the Act that I have referred to, the ultimate proposition put to the Court was that a Community Correction Order would be the appropriate determination. If I might say so, professionally, that proposal was agreed to by the Director, in the sense that a Community Correction Order was put to the Court as being within range.
23Ms Todd, however, given the youth of her client, his future capacity to obtain employment and the issues as to being subjected to a past that records a conviction for such a serious offence, proposed to the Court that I should not record a conviction, albeit granting a Community Correction Order. I do not think I have ever been in this position before, indeed it was my view that I could not do so, but having been assisted by counsel it is clear from s.37 of the Sentencing Act that it is possible to grant a Community Correction Order in circumstances with no conviction, albeit a finding of guilty being made.
24However, given the manner in which the Parliament has prescribed a Community Correction Order, as being an alternative to imprisonment, and given the legislation and the types of cases that this Court hears, it would be an unusual occurrence for a Community Correction Order to be granted without a conviction being recorded.
25The particular considerations that apply, are set out in s.8 of the Sentencing Act 1991, in particular 8(1)(c) refers to the impact that such a conviction, as I say in this case being such a serious crime, would have.
26In order to assist the Court I ordered a Community Corrections Assessment report and in that regard I want to thank Helen Van de Westchuissen for the report that she so timely prepared, dated 14 July 2014. Suffice to say it was deemed that Mr Mafi was appropriate for such a order, and recommendations were made as to assessment and treatment insofar as alcohol and drugs and the supervision condition, and it also seems to me there should be a condition insofar as assessment for offending and treatment in regard to offending.
27The consideration of the proposition put by Ms Todd was not without its intricacies, however having given the matter full consideration and being guided in particular by s.8(1)(c), and the fact of each of the co-offenders being dealt with in the Children's jurisdiction, and no conviction being recorded, I decided that it is one of those rare cases where I can pass a Community Correction Order, without involving a conviction.
28It would be my intent, especially given the attitude expressed by the Director, to pass such an order insofar as all offences are concerned, which can be done as an aggregate order under s.41 and the of the Order will be two years. Do you have to check any matters with your client, Ms Todd, or does he fully understand the requirements?
29MS TODD: The circumstances of the order that Your Honour proposes to make? We have had a discussion about what it means this morning Your Honour.
30HIS HONOUR: If you would stand, please, Mr Mafi. In regard to the four offences on the indictment and the summary offence, there will be findings of guilty recorded, but no convictions. Pursuant to s.41 of the Sentencing Act, I intend to impose upon you a Community Correction Order for all of those offences, and I do so after taking in to account in particular the considerations set out in s.8 of the Sentencing Act and the matters put to me by your counsel.
31Fundamental to such an order is that for the next two years you do not commit another offence that is punishable by imprisonment, do you understand that?
32OFFENDER: Yes sir.
33HIS HONOUR: Mr Mafi, if it has not become clear to you, I want you to understand this, if you come back in front of me again in that two years, there will not be any further chances, do you understand?
34OFFENDER: Yes Your Honour.
35HIS HONOUR: You have committed a very serious offence. You have then subsequently, when you have come back to Australia, committed two more offences. You are being dealt with because of the particular circumstances, and your age, extremely leniently, but if you betray the trust that has been given in the Court today then there will not be any further chances, do you understand? A recommendation was made in the Community Correction Order for unpaid community work, I do not see that as that important in this case.
36Indeed I see it as more important that he is free to get employed himself and earn as much money as he can. So I will not impose that condition. What is important is that he get supervision and that he get treatment, if necessary, insofar as the effects of alcohol upon and insofar - and in regard to offending behaviour. So I will make both of those orders, all of those orders, part of the conditions.
37Insofar as the compensation order is concerned, it has been applied for. In the circumstances I am not going to make an order. It is discretionary. The fact is that the other three involved had no order made against them and the fact that this court does not make an order does not stop the proprietors taking civil action against all of the boys. So that is the circumstances in this case.
38Insofar as the summary matter, that is the stealing of the car, I think I am required under 89 to make a determination that Mr Mafi cannot apply for a license, and I will set that for a period of three months from today.
39MS TODD: Your Honour I apologise for interrupting, there have been some discussions between myself and Ms Devanny this morning. I just wanted to clarify that Your Honour has a discretion in that regard. I think it may have been put last time that there was a mandatory provision.
40HIS HONOUR: I think it is mandatory. I have discretion whether I suspend or cancel.
41MS TODD: Yes.
42HIS HONOUR: I thought I checked it at 89(1) of the Sentencing Act says I must, does it not? I thought I checked that with my - "If the person is found guilty of a serious motor vehicle offence the court must" ‑ ‑ ‑
43MS TODD: Serious motor vehicle offence, Your Honour, is defined at 87P.
44HIS HONOUR: Does that include theft of a car?
45MS TODD: It does not.
46HIS HONOUR: It doesn't?
47MS TODD: It doesn't Your Honour.
48HIS HONOUR: It only relates to culpable driving, things like that, does it?
49MS TODD: It looks like it. We've got manslaughter arising out of a driving - s.24.
50HIS HONOUR: So does that take us to 89(4), does it?
51MS TODD: It looks like Your Honour has discretion when there is a non-conviction.
52HIS HONOUR: Yes, well I do not think in the circumstances - he has not got a license anyway, so I think three months is not going to worry him too much, so I will make that order.
53MS TODD: As Your Honour pleases.
54HIS HONOUR: I make an order under 89(1) that he is unable to apply for a license for a period of three months. Madam Prosecutor is there anything else that I have to tend to?
55MS DEVANNY: Just the forensic sample order, Your Honour, I note from the previous occasion that it is not objected to by the defence, so formally hand up those orders.
56HIS HONOUR: Yes, look, on the basis that I am hopeful, very hopeful, that this is an aberration in his life and we will not have any further problems, I will not sign that order.
57MS DEVANNY: As Your Honour pleases.
58HIS HONOUR: So Mr Mafi, you have got two years to prove yourself, all right? I do not want to see you again because it will not please me to put you in gaol, because that is where you will go next time if you come in front of me. Yes. All right, while we update these orders on the system you can just remain there, Mr Mafi. We will have you sign the CCO in a few minutes.
59(Short adjournment.)
60HIS HONOUR: Yes, Ms Todd, if you could get your client to sign it and perhaps explain it to him, make sure that he understands. Most importantly the first attendance, I think it has to be within 48 hours, does it not?
61MS TODD: We have been through the order together and Mr Mafi has signed it.
62HIS HONOUR: Right, all right, yes, good.
63MS TODD: We are just making the appointment time for tomorrow very clear for him now.
64HIS HONOUR: Excellent. Mr Mafi make sure you write down the times when you have got to be there, because you can get in to trouble. If you breach these orders they can come back and that will be a breach of your order, all right? So make sure you get to make the appointments.
65OFFENDER: Yes Your Honour.
66HIS HONOUR: You will have a person supervising here, he will make it clear to you when you have got to see him. Which is the local office?
67MS TODD: It's the Frankston ‑ ‑ ‑
68HIS HONOUR: Frankston. All right, well if that is signed. All right, thank you Mr Mafi, no more trouble.
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