Director of Public Prosecutions v Maratai

[2016] VCC 177

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01944

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANGIANAU MARATAI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2016
DATE OF SENTENCE:	29 February 2016
CASE MAY BE CITED AS:	DPP v Maratai
MEDIUM NEUTRAL CITATION:	[2016] VCC 177

REASONS FOR SENTENCE
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Subject:  Extortion
Catchwords:
Sentence:  2 year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis
For the Accused	Mr R. Thyssen

HIS HONOUR:

1Tangianau Maratai, you have pleaded guilty to one charge of extortion and one charge of possession of a drug of dependence.

2The maximum penalty upon conviction for the charge of extortion is 15 years' imprisonment.  The maximum penalty upon conviction for the offence of possession of a drug of dependence, where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, is 30 penalty units amounting to more than $3000 fine and/or one year imprisonment.

3You were found to have in your possession when arrested a small quantity of anabolic steroid.  The prosecution does not contend that you possessed this drug for the purposes of trafficking and so the maximum penalty for this offence is as I have set out above.

4The circumstances of your offending are contained in a prosecution summary which was admitted into evidence and marked as Exhibit A on the plea.  It is not necessary that I here set out again what is there set out, except in a very summarised way.  These sentencing remarks, however, should be read together with the prosecution summary.  The prosecution summary was read in open court by the prosecutor, Ms Piekusis, and your counsel, Mr Thyssen, agreed that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

5Your offending in relation to the charge of extortion occurred over a short period between 27 August 2013 and 4 September 2013.  At all times you were a member of the Comancheros Motorcycle Club.  The summary asserts that you are currently the president of the Hallam Chapter of that club.  However, I heard submissions, which I accept, that you have disassociated yourself with that club since your arrest for this offending.

6Bemir Saracevic is also a member of the Comancheros Motorcycle Club.  He also held office in the South Melbourne Chapter of that club.

7At the time of this offending Bemir Saracevic was engaged in blackmailing one Keith Tribe and was the principal involved in that offending.  Saracevic has pleaded guilty to a charge of blackmailing Keith Tribe between 27 August 2013 and 27 September 2013, a period that extended past your involvement.

8The offending that you have engaged in occurred in circumstances where you assisted Saracevic and others in demanding money with menaces from Keith Tribe.  Your involvement was to provide encouragement and support and you acted as a conduit through whom Keith Tribe made contact with Saracevic on a number of occasions.

9As I say, there were other persons involved in the offending against Keith Tribe.  They were each involved in some way with the Comancheros Motorcycle Club.

10Emir Jaha, who was convicted of a charge of blackmail on Keith Tribe after a separate trial before a jury.  I am yet to sentence him and he has also pleaded guilty to other offences.  His offending occurred over the same period that you offended.

11Mark Balsillie, who has pleaded guilty to a charge of extortion of Keith Tribe between the 7th day of September 2013 and the 27^th day of September 2013.  His offending occurred after your offending had ceased.  He played a more active part acting as a foot soldier for Mr Saracevic.

12Another offender was Gemino Aloia.  He pleaded guilty to a different offence, that of making a threat to inflict serious injury upon Keith Tribe on
24 September 2013.  That offence carries a much lower maximum penalty compared to the offence that you have committed.  Mr Aloia’s offending was confined to making one visit to the home of Mr Tribe when he was not present, with Mr Balsillie, to affix a bullet to the front door of the premises.  That was the implied threat of serious injury.  He was convicted and fined the sum of $5000.

13Although the prosecution summary does not directly assert that you attended at Tribe’s home at Templestowe on 27 August 2013, it is a strong inference that you did so and the charge to which you have pleaded guilty asserts that your involvement commenced on that date.  You are from the Cooks Islands and Mr Tribe described the men who came to his house as being of Islander appearance.

14On 27 August 2013 you accompanied Saracevic and Jaha and another person unknown to the home of Mr Tribe.  You arrived “out of the blue” and uninvited.  You and the others were wearing clothing identifying you as being from the Comancheros and, Saracevic told Mr Tribe that you were in fact from that motorcycle club.  Mr Saracevic did all of the talking and he, by implication, demanded Mr Tribe pay to him $852,439.34 as a debt allegedly owed by Tribe to others with whom he had been previously associated in business.

15On this occasion your role was to make up the numbers so as to intimidate and put fear into Mr Tribe if he did not meet Saracevics' demand.  When
Mr Tribe asked Saracevic for a phone number on which to contact him he gave him your mobile number and it was by that means that you became conduit for further calls made by Mr Tribe in the days that followed.  The purpose of those calls was to communicate with Saracevic.

16I regard your role as important in the extortion of Mr Tribe which was subtle yet nevertheless achieved the purpose of instilling fear in him.  The subtlety was that the words used by Mr Saracevic of themselves were not threatening but the fact he was accompanied by three other men (including you) wearing Commancheros outfits, created an atmosphere of threat and intimidation.  But it must be said that your role was limited and differs from the principal role played by Mr Saracevic.

17You have pleaded guilty to the charges and, although the plea came only shortly before trial I accept that by your pleas you have saved the time and cost of your part in what would have been a joint trial.  For that you are entitled to a reduction in sentence. You were not legally represented until shortly before the trial was listed to commence.

18When you were arraigned you admitted a limited criminal history.  You were dealt with at the Dandenong Magistrates Court in October 2011 for recklessly causing injury.  No conviction was recorded and the charge was adjourned upon you being ordered to pay $500 into the court fund.  In December 2012 you were before the Frankston Magistrates Court charged with unlawful assault and again no conviction was recorded and you were ordered to donate $500 to the Royal Children’s Hospital within six months.  Each of these matters arose out of your work in security and crowd control.  As there were no convictions recorded against you I treat you as having no prior convictions for this kind of offending.

19I turn to your background.  You were born on 17 May 1976 in the Cook Islands.  You came to Australia on your own accord and your father was already in this country.  Your mother remains in the Cook Islands.  You have a sister in New Zealand who is married with children and a brother also in New Zealand.  You were educated in the Cook Islands to a level equivalent to Year 10 in Australia.  You have a good work history, having done labouring type work and part-time security work.  More recently you have been working as a concreter earning approximately $1000 per week.

20You are currently living in a de facto relationship with a woman who has one child from a previous relationship aged eight years and your partner is expecting your child and she is due to give birth in April next.  You have been together with her for two years.

21I was told by your counsel of some subsequent offending which also involved extortion.  You were charged for offending that occurred in January 2014 and the matter was dealt with in the Melbourne Magistrates Court in mid-2015.  You were gaoled for eight months and released on an 18 month community corrections order with 150 hours unpaid community work and supervision and treatment conditions including anger management which you have completed.  You have also completed 80 hours of the community work you were ordered to undertake.  The extortion involved demanding an “exit fee” from a Comanchero nominee who was seeking to leave the club.

22Your sentence was served in the Melbourne Remand Centre in difficult circumstances because there were a number of rival group members also in that prison.  You have been complying with your community corrections order and you have been complying with bail reporting conditions for these charges that require that you report to police three times a week.

23I received into evidence a number of references from various people including your employer.  All speak highly of you.  You are a hard worker doing labouring work as a concreter and you appear to be doing the best you can to provide for you and your partner.  I was told and accept that you have ceased all involvement with the Comancheros and the South Melbourne clubhouse, where you apparently attended, no longer exists.  I was told and accept that you have reconnected with a church which has a congregation composed mainly of people from the Cook Islands.  I accept that you appear to have changed your ways and your prospects for rehabilitation appear to be reasonably good.  I was told and accept that the eight months' imprisonment that you have served for subsequent offending has had a salutary effect upon you.  There is no evidence that you are adversely affected by either drugs or alcohol although you have used steroids in the past.

24I received into evidence a psychological report from Warren Simmons.  That report sets out a lot of your personal history which I have had full regard to.  Mr Simmons carried out tests to assess your intelligence level and he measured your verbal IQ at 56 and your non-verbal IQ at 50.  Your composite score was 51 which means that you fall within the lowest percentile of the intelligence measuring scale.  This is highly relevant in determining an appropriate sentence in your case.

25Offending of this kind is very serious.  It involves offenders in placing themselves above the law in threatening to get their own way by force.  
I accept that your role was limited and can be distinguished from the others, but, as I say, your role was important in assisting in sending a message to
Mr Tribe at the first introduction that he would come to harm if he did not meet the request made of him for money by Mr Saracevic.

26In sentencing for crimes such as this, the sentence must pay due recognition to the application of general deterrence.  The sentence must also record the courts and the community's denunciation of your offending.  Your counsel submitted that I should impose a community corrections order.  He submitted that your role was limited and, having regard to your low intelligence level, there should be less emphasis on general deterrence because your moral culpability in this offending should be reduced.

27Whilst the prosecution submitted that this offending and your involvement in it warranted the imposition of a term of imprisonment, the prosecutor conceded that having regard to your limited intelligence, your moral culpability in this offending was probably reduced enlivening principles expressed in a Court of Appeal decision known as Verdins.  She submitted in those circumstances a community corrections order was probably within the appropriate range of sentences that I should impose.  In my view that is a concession well made.

28I have concluded that you are a person a very low intelligence who is easily led and you followed each command made of you by Saracevic without question and without a full appreciation or proper understanding of all of the circumstances or of the consequences.  I note that when you were before me unrepresented you had a great deal of difficulty hearing me and understanding what was going on in the courtroom and this has strengthened my opinion of you as a person who is a follower and easily lead.  For these reasons the orders that I will make will include a non-association condition.

29For these reasons I have decided to accede to the submissions made by your counsel.  In my opinion, in your case the sentence imposed must reduce the reliance on general deterrence and give greater weight to your rehabilitation.

30On the charge of extortion, you are convicted and I make a community corrections order for a period of two years commencing on this date.  This community corrections order will overlap with the existing community corrections order that you are presently undergoing to some degree. 

31There will be conditions as follows:

·    200 hours unpaid community work;

·    treatment and rehabilitation for drugs specifically steroids;

·    treatment and rehabilitation programs to reduce reoffending;

·    supervision;

·    you are not to associate with any members of the Comancheros Motorcycle Club (including past members) and you are not to knowingly associate with any member of any other outlaw motorcycle club or gang.

32On the charge of possession of a drug of dependence, you are convicted and fined the sum of $500.

33For the purposes of S. 6AAA of the Sentencing Act, I state that had it not been for your plea of guilty to the charge of extortion, I would have imposed a term of imprisonment of 18 months.

34There were some forfeiture and disposal orders which were not opposed which I will make.

35MS PIEKUSIS:  Thank you, Your Honour.

36HIS HONOUR:  Any questions arising out of that?

37MR THYSSEN:  No, Your Honour.

38MS PIEKUSIS:  No, Your Honour.  Although I would ask that if Your Honour revises Your Honour's sentencing remarks that Keith Tribe is actually Keith Tribe.

39HIS HONOUR:  Yes, I kept saying Keith Tribe, is it Keith Tribe, is it?

40MS PIEKUSIS:  Keith Tribe, Your Honour.

41HIS HONOUR:  I apologise for that.  I will revise that.

42MS PIEKUSIS:  Thank you.

43HIS HONOUR:  Is it Keith Tribe?  Where did I get the Phillip from?

44MS PIEKUSIS:  Keith John.  I think Your Honour's tipstaff might be on Your Honour's mind.

45HIS HONOUR:  I do not know where I got that from.

46MR THYSSEN:  Can I seek a stay of two months on the fine, Your Honour?

47HIS HONOUR:  Yes.  There will be a stay of two months in relation to the payment of the fine.

48Mr Maratai, do you understand the sentence?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  I have imposed a further community corrections order, so you will be subject to a community corrections order at least for another two years, do you understand?

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR:  You will have to attend, I think it is at Dandenong, is it, at Corrections in Dandenong within 48 hours.  Do you understand that?

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  You must no reoffend, that is you must not commit any offence punishable by a term of imprisonment for the next two years.  If you do so, you will have breached the terms of the order and you will be brought back and dealt with by me, do you understand that?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  That includes complying with all the conditions of the order.  Do you understand that?

57OFFENDER:  Yes.

58HIS HONOUR:  Very well.  Perhaps leave the dock, if you would, and come up and take a position behind Mr Thyssen there.

59Very well, I have signed that order.

60(Forfeiture order signed and acknowledged.)

61(Disposal order signed and acknowledged.)

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