Director of Public Prosecutions v Manapori

[2019] VCC 1284

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

  Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR-19-00495
Indictment No. J12585039

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAELA MANAPORI

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2019
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	DPP v Manapori
MEDIUM NEUTRAL CITATION:	[2020] VCC 1284

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW
Catchwords:             Sentence – aggravated carjacking – armed robbery – prohibited person

possess firearm -  plea of guilty

Legislation Cited:     Crimes Act 1958 (Vic), ss 79A, 75A; Firearms Act 1996 (Vic), s 5(1)
Sentence:                 Total effective sentence of 5 years and 8 months’ imprisonment and a

non-parole period of 4 years

Section 6AAA declaration: 7 years and 3 months imprisonment and a
  non-parole period of 5 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Goetz	Solicitor for the Office of Public Prosecutions
For the Accused	Mr G Thomas	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Raela Manapori, you have pleaded guilty to one charge of aggravated carjacking (Charge 1) and one charge of armed robbery (Charge 2), for each of which the maximum penalty is a term of imprisonment of 25 years.  You also pleaded guilty to one charge of prohibited person in possession of firearm, for which the maximum penalty is a term of imprisonment of 10 years and also to a summary charge of possessing cartridge ammunition without a licence, for which the maximum penalty is 40 penalty units.  Tendered on the plea as exhibit 1, was the summary of prosecution opening. I annex a copy of that document to these sentencing reasons.

2In brief the circumstances of your offending were as follows. 

3In September 2018, you were a prohibited person within the meaning provided in s3 of the Firearms Act 1996, because you had been the respondent in a family violence intervention order in the five years preceding. On the 28^th September 2018 you made arrangements to sell cannabis to Kaden O'Grady. Mr O’Grady asked Krystal Orfali to drive him to a location in Sunshine West to complete the transaction.  Krystal Orfali drove Kaden O'Grady and two further passengers, Ethan O'Grady and Luke Thomas. The vehicle was her mother's red Holden 2007 Commodore, registration YDG775.  Shortly after they arrived at the location, you arrived in a dark Holden Commodore accompanied by two other males.  A small quantity of cannabis was exchanged for cash.  You then produced a knife causing Ethan O'Grady and Kaden O'Grady to retreat into the backseat of their vehicle. They told Krystal Orfali to drive. 

4Krystal Orfali tried to leave but was blocked by the dark Holden Commodore which was driven by one of your unknown co-offenders.  You then approached Krystal Orfali who was still seated in her mother's vehicle. You opened the driver's door and removed the keys from the ignition, whilst pointing a knife at her.  You then made threats and told all the occupants to get out of the car which they did.  You then entered the vehicle and drove away.  This is the basis of Charge 1, aggravated carjacking.  Your two unknown co-offenders also drove away in the dark Holden Commodore.  Your victims left the area on foot.  Ethan O'Grady then called 000 to report the incident.  Krystal Orfali and Ethan O'Grady later identified you from a photo board.

5The following day 29^th September at about 9:20pm you and an unidentified co-offender attended the IGA supermarket at Hatchlands Drive in Deer Park.  You had clothing covering your heads. Upon entering the store, one of you produced a firearm and pointed it directly towards the victim, Mr Thuotam, from a distance of approximately one metre, demanding that he open the safe.  He told you and your co-offender that he didn't have the keys.  He tried to escape, was chased, caught and was stopped, taken back to the register area and punched to the back of his head.  You then demanded that Mr Thuoutam give you cigarettes and cash. He opened the cigarette cupboard for you and you pulled out five or six trays of cigarettes.  You also stole two cash register trays from the cash register, holding a total of approximately $4,000.00 in cash.

6CCTV footage reveals that you and you co-offender then left, via the supermarket's rear roller door, before entering a vehicle similar in appearance to that belonging to Krystal Orfali’s mother.  On 2 October 2018, police executed a search warrant at 78 Avondale Avenue St Albans, where you were apparently residing in the garage.  Police searched the garage and seized the following items of relevance: homemade shotgun, this is Charge 3, prohibited person possess a firearm; seven shotgun cartridges and a box of Winchester 30-06 rifle rounds containing five complete rounds (this is Summary Charge 8); a red 2007 Holden Commodore, displaying false registration plates 1NX8NN (this is the vehicle the subject of Charge 1). Within the red Holden Commodore was found an imitation handgun; two Victorian registration plates, YDG775, which are the true registration plates for the vehicle that is subject of Charge 1 on the Indictment; three cash register trays; and two cigarette display trays, the subject matter of Charge 2.

7You were arrested following execution of the search warrant on 2 October 2018.  Police were accompanied by dogs and during the search I am told that you were bitten by one of the dogs. when police located you.  You were taken to Sunshine Hospital for treatment and discharged on the same day.  You made a ‘no-comment’ record of interview at the Sunshine Police Station, as was of course your right.  You were then charged and remanded in custody. 

8The matter resolved at the committal on 13 March 2019 before any evidence was called. It was therefore an early plea.  Krystal Orfali provided a Victim Impact Statement on the plea, exhibit 2.  In that Victim Impact Statement she states,

'this crime has changed my life in multiple ways since it happened.  I haven't been able to find as much enjoyment or happiness in anything I do.  I started pushing everyone away as I felt I was going downhill mentally and emotionally and didn't want help from anyone, I just wanted to be left alone.  Since the crime I have had severe depression, anxiety, PTSD and an eating disorder and sleeping problems.'

9She speaks of her isolation, of her sense of distance from her family and friends and a constant sense of struggling with everyday life.  She failed her TAFE course being unable to concentrate in class.  Counselling has not worked for her and she has been on medication.  She has resorted to self-harm as a means of coping.

10Rana Thuotam, writes in his Victim Impact Statement (exhibit 4) that emotionally he's in shock, scared and thinks about his family and the financial impact of your crime against him.  At the time of writing his Victim Impact Statement on 25 June 2019 he wrote, 'I'm always scared and not able to work in the night time.'

11Abhinava Paruvella who was a worker at the IGA supermarket, has also written a Victim Impact Statement, exhibit 3.  He writes of being very frightened and emotionally disturbed after the robbery was done and he also writes of his mental depression.  He wanted to leave his job but could not, due to financial need. 

12Of course such statements must not be permitted to overwhelm the sentencing process, but no one can be in any doubt that your offending has had lasting and traumatic impact upon your victims.

13I now turn to your personal circumstances. 

14You were born on 28 June 1997 and were thus aged 21 years and three months at the time of this offending.  You are now 22 years of age.  You attended Sunshine Heights Primary School and then completed Years 7 and 8 at Sunshine West College.  You withdrew from Year 9 in March 2012, due to a combination of being a victim of repeated bullying, involvement in physical altercations, truancy and several suspensions.  You joined the workforce at age 18, installing temporary fencing for a company in Deer Park for about 12 months. You then gained employment at a factory in Derrimut for 18 months, however you have not worked since the age of 20.

15You have a fractured relationship with your family.  You were raised in Sunshine by your maternal grandparents from age three.  You have never known your father.  Your mother withdrew from your life when you were about 12 years of age.  You have three maternal sisters, aged 15, 18 and 20, and two maternal brothers, aged 11 and 13.  All of your siblings reside in Werribee with your mother and her de facto partner.  Your maternal grandfather was a stern disciplinarian using violence beyond lawful chastisement and you were a victim of bullying at school.

16This is your first appearance within the adult jurisdiction of a court and your first time incarcerated as an adult prisoner.  However, you have a history in the Children's Court and have received four separate sentences of youth detention for a range of serious offending, including armed robbery, arson, false imprisonment, theft of a motor vehicle, intentionally causing serious injury, burglary and affray.  I am told that your first period of offending commenced at the age of 14, when you began associating with other young offenders whilst homeless, couch surfing at the age of 14 and living on the streets.  I also note that you started using marijuana around this time

17In July of 2015, following your most recent sentence of youth detention, you were released on Youth Justice Supported Bail, residing with your maternal Aunt Chanel Manapori and her family in Deer Park.  Exhibit 6RM on the plea was a bundle of supervised bail reports from Youth Justice dated 28 September 2015, 23 November 2015 and 29 January 2016.  Those reports speak of you demonstrating positive behaviours and attitudes and gaining stability within the community.  I note that it is during this period that you gained and maintained employment in the roles I have outlined earlier and attended a mechanics course two days each week.

18You have been involved in two relationships following your release from Youth Detention. In early 2016 you commenced an 18-month relationship with Priscilla. A daughter was born in October 2016 when you were 19.  This relationship broke down in March 2017.  I am told it was at this point in your life that you commenced using methamphetamine and MDMA and ceased to work. 

19Nonetheless you started a new relationship with Cyntara in late 2017 with whom you had a further two children, sons born respectively in March 2018 and March 2019. This relationship ended in the weeks prior to you committing these offences. A current family violence intervention order remains in place, where the mother of your sons is the affected family member and you are the respondent.  I am told that you spent five months of your time on remand in 23-hour lockdown. I understand that members of your extended family remain supportive of you and visit you in custody as indeed has your former partner. 

20Tendered on the plea was a report from Ms Gina Cidoni, forensic psychologist, exhibit 7RM, dated 25 June 2019.  Her report detailed your personal history.  Previous intellectual testing indicated below average intellectual capacity with your full scale IQ being 82 and placing you in the 12th percentile. That means 88 percent of the population would do better than you.  Psychological testing administered by Ms Cidoni confirmed this assessment. Your cognitive and memory function is in the low average range.  She notes that there are signs of emerging borderline personality. 

21Ms Cidoni's opinion focused on your exposure to negative family circumstances in your childhood and adolescent years, which led you to live on the street, associating with other displaced youth where you also acted out feeling unwanted by your own family.  Consequently, you spent much of your adolescence in detention.  You told Ms Cidoni that you linked your juvenile offending to your grandparents’ separation and your belief that somehow you were the cause.  As to the index offending, you told Ms Cidoni that you had met the victims of Charge 1 through Facebook and that for some unknown reason you became upset and you decided on the spot to take the vehicle at knifepoint.  It is not quite clear how this explains the armed robbery that you committed the following day.  You also reported using ice and MDMA on a daily basis at the time of this offending.

22You accept your behaviour was very wrong and your remorse is genuine.  You have resigned yourself to serving a term of imprisonment.  You were encouraged to seek counselling support and participate in drug education and other therapeutic programs. 

23Your maternal Aunt Chanel Manapori gave evidence on your plea and spoke tellingly of the effect upon you of your mother coming in and out of your life at an impressionable age and of the efforts that she, your maternal aunt Chanel, and her partner had made to give you some guidance and support.  However you did not confide in her. She noticed that your sleep patterns were completely disturbed but was unaware of your abuse of methamphetamine.  She made it clear to the Court that when you were released she and her family would continue to support you, offering you work, a home and I have no doubt, their continued love. 

24On your behalf, Mr Thomas submitted that your plea of guilty should be viewed as having been entered at an early opportunity and that your plea brings with it the utilitarian benefit of saving the community the time and expense of a trial, but also saving your victims from the trauma of having to give evidence.  He submits that your plea of guilty indicates that you accept responsibility for your actions and that you are remorseful. 

25Mr Thomas accepted that you have relevant priors between the ages of 14 and 16, but submitted that the main reason for that early offending was your tortured relationship with your family, leading you to associate with a group of older peers.

26Mr Thomas urged upon the Court, the remarkable turnaround that you have managed in your life since leaving Youth Justice detention, remaining offence free for three years, starting a family and gaining employment. This offending was driven by your use of methamphetamine which had gradually increased over the preceding months and which you hid from your family.  As to this offending, Mr Thomas submitted that your immaturity played a large part.  You had no plan to hijack the car when you first went to the meet, but you completely lost your temper at a term of abuse you believed someone had directed at you. It is possible, in your methamphetamine influenced state that you misheard and misinterpreted what had been said. Your excessive use of ice certainly could not have assisted any reasoned judgment.

27The decision to take the vehicle thus was not premeditated, said Mr Thomas.  It was not stolen for the purposes of ongoing criminal activity, but you did take the vehicle back to where you were staying.

28As for the armed robbery, Charge 2, Mr Thomas accepted that it was a serious example of the offending.  It was a planned and premeditated crime committed upon a vulnerable target with violence used, as well as threatened and generating fear in your victims. The firearm found at your premises was apparently given to you by a friend for safekeeping. I was told on instructions that it could not be discharged in its current state.

29Mr Thomas urged upon me your youth.  You were 21 years and three months old at the time of this offending and Mr Thomas submitted that the principles applicable to the young in terms of the importance of rehabilitation should have application in your case. Mr Thomas accepted, however, in accordance with principle, that the gravity of your offending moderated, although he contended it did not eliminate, the weight to be given to your youth and rehabilitation. 

30Mr Goetz in reply submitted that general and specific deterrence, denunciation, just punishment and protection of the community were all sentencing purposes relevant to this offending. 

31Mr Manapori, aggravated carjacking and armed robbery are both serious offences, as is perfectly clear by the maximum penalty of 25 years that Parliament have seen fit to impose. In relation to the aggravated carjacking, I am required by law to pass a non-parole period of three years for that offence unless a special reason exists as defined in statute.  Mr Thomas did not seek to persuade me of the existence of any such special reason. 

32You must have known that your actions would inspire fear in your victims.  Nonetheless you carried on. I accept your judgement may have been clouded by your methamphetamine use, but this does not and indeed can never mitigate your offending.   

33I accept that the offence was not premeditated, but once you had resolved to take the vehicle you did so without any thought for your victims or the impact of your crime upon them.  It may nonetheless, in my view, be seen as in the lower range of offending of that kind.  The armed robbery is however, a serious example of the offence.  You and your co-offender entered the IGA in company, armed and wearing disguises.  You intended to rob the premises.  Once inside, one of you produced a firearm and directed it at your victim.  When your victim Mr Thuotam tried to flee, he was caught and brought back and physically assaulted.  It was clearly a terrifying experience for him. 

34Small retail outlets such as local IGA's and bottle-O's are regarded as vulnerable targets, because there is no security and they become easy prey for those who resolve to rob them to make some easy money, no doubt to fund the purchase of more drugs.  You stole cash to the value of approximately $4,000.00. The courts will do everything they can to protect these vulnerable targets from assault of this kind and a clear message has to be sent to anyone contemplating such offending that if they are caught, they will be sternly punished. 

35Mr Manapori in sentencing you I must have regard to a range of different factors.  I must give effect to the principles of both general deterrence, that is, deter others from behaving as you did and of specific deterrence, to deter you from any repeat of such offending behaviour.  I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. 

36I must take into account the effect that your crimes have had upon your victims and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offences you have committed and to the statutory maximum penalties.  In short, I must try to balance your personal circumstances with the circumstances of your offending.  Clearly, principles of general and specific deterrence, just punishment, denunciation and protection of the public are primary sentencing considerations in this case.  I do accept that you express some remorse for your offending.  However, it is clear that any insight that you may have into your offending and your behaviour when you are drug-free, is lost when you are under the influence of drugs. 

37You are young and I have regard to the principles that are thereby engaged. I accept you had a childhood that was marked by abandonment and violence. I accept that you have not learnt appropriate responses to the challenges that life presents.  You may have been immature and unable to deal with relationship break ups, but you were certainly adult enough to father children.  It was your inability to deal with the break up with your partner, the mother of your first child and the consequent separation from your daughter that, it seems, led to you using drugs. This led to you rediscovering offending peers, which in turn led to the breakup of your second relationship and to more children being abandoned without a father.

38But you had a family.  You have an Aunt Chanel, who is prepared to do everything to help you.  It is quite clear to me that you turned your back, quite knowingly, upon the help and support that your family was prepared to offer and decided, instead, to knowingly and deliberately, use methamphetamine to confront your personal troubles. It was against the background of that daily and sustained methamphetamine use, that you committed the offences, for which you fall to be sentenced today.  Offending which will have a long term impact upon your victims. Mr Manapori, no matter how young you are, you made a choice to turn away from your aunt and the support she was prepared to give you. 

39You have relevant prior convictions. Now whilst you are not to be punished again for matters that have already been dealt with by the courts, your prior convictions are in my view relevant to my assessment for the need for specific deterrence, protection of the community and of your prospects for rehabilitation.       

40Mr Manapori it is clear, that as long as you remain unable to deal with your emotions and whilst as long as you continue to resort to drugs whenever you find yourself emotionally challenged, your prospects for rehabilitation are poor and the community will need protection from you. 

41Mr Manapori, only you can make the hard choices necessary to begin to live your own life and separate from the baggage of the past.  In sentencing you I take into account your youth; that the offending in Charge 1 was not premeditated; your plea of guilty, which was entered at an early opportunity and which I recognise as having both a utilitarian benefit, but also as some indication of remorse; the prospect of your continued family support from your aunt and the extended family and the protective factors that such support may represent; your prospects of rehabilitation, which must be guarded; and that this is your first time in an adult prison environment.

42I have regard to the principle of totality. I am required by law to pass no longer sentence than is necessary in all of the circumstances.  Nonetheless, as your counsel accepted and as you are well aware, this was serious offending which can only met by a significant term of imprisonment.  I have moderated the orders for cumulation that I would otherwise have made.

43Would you stand up please, Mr Manapori? 

44On Charge 1, aggravated carjacking: you are sentenced to a term of imprisonment of four (4) years. Your licence is cancelled and you are disqualified from obtaining a new one for four (4) years. 

45On Charge 2, armed robbery: you are sentenced to a term of imprisonment of four (4) years and three (3) months. 

46On Charge 3, being a prohibited person in a possession of a firearm: you are sentenced to a term of imprisonment of nine (9) months. 

47On the Summary Charge of possession of cartridge ammunition: you are convicted and discharged. 

48I order that eighteen (18) months of the sentence on Charge 2 and two months of the sentence on Charge 3 run cumulative to each other and cumulative to the sentence on Charge 1. 

49This makes the total of sentence of five (5) years and eight (8) months’ imprisonment.  I fix a non-parole period of four (4) years.

50Pursuant to s18(4) Sentencing Act 1991 (Vic), I declare that you have served 311 days of the sentence I have passed upon you and direct that this be entered into the records of the Court.

51Pursuant to s6AAA Sentencing Act had you not pleaded guilty, you would have been sentenced to a total effect of sentence of seven (7) years and three (3) months, with a non-parole period of five (5) years and six (6) months.

52HIS HONOUR:  All right, now, Mr Thomas are there any custody management issues?

53MR THOMAS:  No Your Honour.

54HIS HONOUR:  Nothing that comes to light or nothing that you wish for me to note?

55MR GOETZ:  No Your Honour.

56HIS HONOUR:  No.  All right then. 

57MR GOETZ:  Some ancillary orders that I foreshadowed on the previous occasion.

58HIS HONOUR:  Yes.  I have the note.  Mr Goetz, I have reflected upon the matter.  In relation to the compensation, I am not going to make the order.

59MR GOETZ:  Understand, Your Honour.

60HIS HONOUR:  The forfeiture order that is sought is granted and I make the section 464ZF order.

61Now Mr Manapori, I've made an order pursuant to s 464ZF, which enables police to take a forensic sample from you, that means a buccal swab, almost inevitably, so just a little cue tip in the mouth, so it can be kept on a database.  I have to tell you that when that officer comes to take that sample,  the officer is entitled to use such force as is reasonably necessary in order to do so and it may be that the sample sought is more invasive and that they seek a blood sample, rather than a simple buccal swab.  All right Mr Manapori?

62Now Mr Manapori you are young.  Your family is here.  You have three children. And you are still but a child yourself.  I make no observation there, but I say your children are going to need you, otherwise in 20 years' time they're going to be standing in front of another Judge, having the same story told.  The same story:  my father wasn't there.  Now think on that and hopefully make a decision to turn your life around.  You are not responsible for your past, but you are responsible for your future.  All right Mr Manapori, here endeth the lecture.  All right, you can take him down thank you. 

63All right, I'll stand down. Thank you, gentlemen.

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