Director of Public Prosecutions v Mataafa
[2019] VCC 1216
•6 August 2019
| IN THE COUNTY COURT OF VICTORIA | Suitable for Publication Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-02378
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAIPELE MATAAFA |
---
JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 August 2019 | |
CASE MAY BE CITED AS: | DPP v Mataafa | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1216 | |
REASONS FOR SENTENCE
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Burnett | OPP |
| For the Accused | Mr T. Wallwork | Milides Lawyers |
HER HONOUR:
1 Saipele Mataafa, you have pleaded guilty to one charge of armed robbery and one charge of common assault. The maximum penalty for armed robbery is 25 years' imprisonment and the maximum penalty for common assault is five years' imprisonment.
2 The circumstances which found your offending are set out in the prosecution opening dated 27 March 2019 and represent the agreed factual basis upon which you have pleaded.
3 On 31 July 2018 at about 1 am you and a co-offender were travelling along Shirley Street in Noble Park in a stolen Holden Commodore. Your co‑offender was driving and you were sitting in the front passenger seat. At some stage you pulled up next to a Toyota Camry which was parked on the corner of Budge Street. The driver, who is the victim in this matter, was sitting in his vehicle talking to friends on his iPhone. When the vehicles were adjacent to each other, driver's side window to driver's side window, your co-offender pulled out a black coloured handgun, put down his window, pointed the gun at the victim and said, 'Money, money, money. Give me money'.
4 You got out of the vehicle and ran to the victim's vehicle. You opened the driver's door and started punching the victim to the head and face while he was still seated in the driver's seat. You then took his mobile phone from his hand and pulled him out of the car. You continued to punch him to the face causing him to fall to the ground. When he was on the ground you were demanding money and his wallet. You then entered the victim's vehicle and searched through it before getting back into the stolen Holden Commodore.
5 The victim was shouting for help and one of his housemates came outside to investigate. They observed the victim on the road. The housemate came towards the vehicle in which you were a passenger and your co‑offender pointed a handgun at him. You both laughed and drove away taking the victim's mobile phone with you. The phone was valued at $1,300. The victim suffered pain to his head and face and a cut lip.
6 On Thursday 16 August 2018 you handed yourself in at Dandenong Police Station. You were interviewed and made admissions to both being present in the stolen vehicle at the relevant time and your role in the armed robbery.
7 There are now aspects of your record of interview upon which you do not seek to rely, you having accepted the prosecution summary which I have already outlined.
8 It is agreed that you assisted police by providing information in relation to the co‑offender's whereabouts. You were charged and remanded in relation to this matter on 16 August 2018. You have now spent 355 days in custody on remand in relation to this matter.
9 I note for completeness that your co‑accused's matter was recently listed for committal. Those proceedings were impacted by you not wishing to attend. As I have indicated to your counsel I do not regard this as aggravating. In any case charges against your co-accused were ultimately withdrawn by the prosecution.
10 As regards offence seriousness, armed robbery is, by its very nature, a serious offence. This is demonstrated by the maximum penalty imposed by Parliament. This is a serious example of such offending. It involved the use of a handgun, you were in company and the offending occurred on a public street at night against a victim who was vulnerable due to his circumstances including him being alone in a vehicle without ready access to assistance. That being said, your offending could not be regarded as sophisticated. It is relevant to note that you had recently been released on youth parole.
11 The charge of common assault is also a serious example of that offence. It was gratuitous violence against a man unknown to you in a public street at night. I note that no victim impact statement was tendered upon the plea.
12 You have admitted the contents of a criminal record which reveals a history of appearances dating back to April 2013 in the Children's Court. Your first appearance involved you pleading guilty to robbery, unlawful assault, recklessly causing injury and theft of a motor vehicle. You were placed on probation for a period of 12 months. You breached that order and you were, without conviction, released on a youth supervision order.
13 The following year in 2014 again at Dandenong Children's Court you were, without conviction, released on a youth supervision order for 12 months in relation to charges including affray and offences of dishonesty. You breached that order later that year and the order was confirmed.
14 On 17 October 2014 at the Dandenong Children's Court you were again released without conviction on a youth supervision order in relation to charges of perjury, recklessly causing injury and theft from a shop.
15 Your first appearance in the Magistrates' Court was on 11 March 2016 at Dandenong. You were convicted of contravening a family violence intervention order, aggravated burglary and theft. You were placed on a Community Corrections Order. You contravened that order and the matter was dealt with in November 2017. The original order was confirmed.
16
On 23 November 2017 at Dandenong Magistrates' Court you were convicted, amongst other matters, of recklessly causing injury, assaulting an emergency worker on duty, criminal damage, theft and other offences. You were convicted and sentenced to be detained in a youth training centre for a period of
12 months.
17 What is concerning about your history is your record of violence. You have committed numerous violence offences over a number of years. Numerous dispositions have been tried including in the Children's Court and by way of a Community Corrections Order in the adult jurisdiction. Most recently you were sentenced to be detained in a youth training centre. Unfortunately none of these dispositions have proved sufficient deterrence nor achieved rehabilitation, which is clearly required.
18
As regards your personal history, you were born in Melbourne on
9 January 1997. You are now aged 22. You were put up for adoption by your parents when you were four weeks old and you were adopted informally by a paternal uncle. You have numerous siblings including four biological sisters, four biological brothers, two adoptive sisters and four adoptive brothers. I was advised this morning that, in fact, many of these adoptive siblings are, in fact, your aunts and uncles but you regard them as brothers and sisters. It was not until you were approximately 12 or 13 years of age that you became aware that you were, in fact, adopted at such a young age. This is clearly a matter which has concerned you over a significant period of time and is referred to in the report of Mr Cummins which I shall turn to in due course.
19 In terms of your education you attended numerous primary schools before attending Dandenong High School completing Year 9 in 2011. You report having an aide at primary school and a tutor at home in secondary school. The following year you attended Chisholm TAFE in Dandenong and graduated with a Certificate I in General Education for Adults in 2012. You also obtained your White Card. Following that you obtained employment with R & C Asphalt as a manual labourer. From February to August 2014 you were employed at Reynolds Paving as a manual labourer. From February 2015 to August 2015 you were employed by Web Tech as a production line worker. From October 2015 to February 2016 you were employed by Narre Warren Pallets as a labourer. Your most recent employment was in March 2018 when you were employed by Atlite Skylights in Cheltenham where you worked installing skylights and on the production line.
20 You have had one significant relationship with your partner, Fiona Vong, who you met in December 2015. Tragically Ms Vong was pregnant with your first child when you both suffered a stillbirth at the end of March 2019. You were at that stage on remand but you were permitted a supervised release in order to attend your child's funeral.
21 Recent years in your life have been marred by tragedy. On 30 October 2017 your older brother committed suicide while you were remanded at Port Phillip Prison. On 17 January 2018 your nephew, indeed the son of your brother who committed suicide, also tragically took his own life. As I have already noted this was followed by the stillbirth of your first child in March of this year. These events have both undoubtedly and understandably had significant effect.
22 I note that your partner has attended court upon your plea and remains supportive of you. She is committed to your relationship despite you having previously assaulted her. I received letters from your partner, brother and your adoptive parents. They confirm aspects of your history and express clear and ongoing support of you. Your partner's letter predates the tragic loss of your child. I, of course, accept the effects of this tragedy are ongoing for both of you and that your partner would be assisted by your support.
23 Your parents say there were cognitive issues identified at school. They note that you were quiet at home and it was difficult for them to know what you were going through. They were aware of your marijuana use over a long period and concluded that this was related to your feelings as regards being put up for adoption. Your parents saw significant changes in you post the suicides to which I have referred. They thought you were depressed and at times suicidal yourself.
24 I note that your parents have both attended court upon your plea in support of you. Your parents say that you have been their sole carer for the last six years in addition to holding full time employment at the skylight company which allowed you to assist them financially. They note that they rely upon you for interpreting and emotional support.
25 Your brother identifies the time at which you became aware that you were adopted as the stage at which he noticed you changed. He says your feelings grew to become deep felt resentment and anger and that this led to you acting out. He saw a rapid downward spiral, in part fuelled by your relationship with a 34 year old woman when you were 16. Both your drug use and offending spiralled in this period. Your brother describes your current partner as your first positive relationship. It was your brother who assisted you to gain employment in skylighting at the company where he was employed. He says all who work with you were won over and that he saw a glimpse of the boy he knew. He confirms your role in your parents care and the trauma you have all endured following the death of your son.
26 Your former employer describes you as extremely reliable and says you were fuelled by the love of your parents and a desire to support them financially and emotionally.
27 I received a letter from your Church Parish Secretary. You have spoken to her about these matters and she said she sees deep remorse and clarity about where you went wrong. She expresses confidence as regards your future.
28 I also received letters from two of your partner's sisters, both of whom thought they saw a real change in you after your release from YJC. They both say you were making positive changes and excited at the prospect of being a father. They note that this was followed by your despair at not being able to mourn your son with Fiona and support her following the tragic events.
29 As regards your drug history, you had commenced using cannabis by the time you left school in Year 9. By 2013 you were using methylamphetamine and your cannabis use had become daily by the time you were 16. Alcohol became a problem in your later teenage years. You report having smoked a gram of ice and consumed 16 stubbies of beer at the time of this offending. On a more positive note, I note that subsequent to your remand you have returned two clean urine screens but obviously the real test will come upon you ultimately exiting into the community.
30
As regards your time in custody, you were remanded in relation to this matter in August 2018. From 22 September you were in the Chartwell Management Unit after being placed in solitary confinement on 19 November as a result of a violent incident in custody. You instructed your lawyers that you were in solitary confinement from 19 November 2018 to 25 March 2019 which meant limited contact with other prisoners and only two hours out of cells per day. On
27 March 2019 you were transferred to MRC and returned to mainstream. On 30 March you were permitted supervised release in order to attend your child's funeral.
31 You have completed a number of units of education primarily, it seems, with a view to increasing your job prospects. A bundle of certificates were exhibited upon your plea.
32 I have received a report dated 27 March 2019 from Mr Jeffrey Cummins, a forensic psychologist. At the time that Mr Cummins assessed you, you were still in solitary confinement. At paragraphs 14 and 15 of his report Mr Cummins refers to aspects of your history that you do not want referred to in open court but they are clearly matters that will require some work to ensure they are not underpinning ongoing offending.
33 Mr Cummins assessed your risk of committing further violent offences as moderate. He said it is imperative that you participate in a comprehensive anger management program. He says you are definitely at risk of developing an antisocial personality disorder. Mr Cummins said that you present as being of slightly below average intelligence and that your thought content was within the normal range. He said in addition that you present as being moderately depressed and mildly anxious. He noted the tragic events within your family and says they prompted you to feel more depressed and that you, at times, considered taking your own life. He said at the time of his interview you did not present as being acutely suicidal. You told Mr Cummins that you would be prepared to participate in residential drug rehabilitation which to date you have never undertaken. You also told him that you would participate in comprehensive anger management programs. You acknowledge that you require mental health treatment relevant to your history as disclosed to Mr Cummins.
34 I note that you told Mr Cummins you were significantly intoxicated at the time of the commission of these offences. He diagnosed you as having an alcohol use disorder of at least moderate severity. You also told Mr Cummins that you had used methylamphetamine and he opines that at the time of the offending you attracted a diagnosis of cannabis use disorder of at least moderate severity and most probably an amphetamine use disorder of at least mild severity.
35 Mr Cummins opines that realistically your offending is likely to be linked to your relative lack of resolution concerning feelings of anger. He said that you most probably developed a trauma related disorder in the form of an adjustment disorder with mixed disturbances and emotions and conduct in response to both matters you disclosed to him and being abandoned by your biological parents. Mr Cummins notes that he did not categorically make a diagnosis of adjustment disorder because you were quite vague at interview. Mr Cummins opines that it is very likely your mental health will deteriorate the longer the time you spend in custody particularly in circumstances where you are not receiving any ongoing mental health treatment.
36 By way of further report, I note that the Children's Court released a neuropsychological report prepared in 2013 for your sentencing in that court in relation to serious matters of violence. You were 15 years and 11 months at the date of that assessment and the report must be read in that light.
37 Ms Duncombe opines in that report that your verbal comprehension and reasoning were severely impaired and that your working memory and processing were, at the time, borderline but your non-verbal skills were assessed as low average to average. She did not identify deficits in adaptive behaviour. She opines that at that time you met the criteria for a conduct disorder. She says that you may, at that time, have had difficulty in appreciating the functional ramifications of your actions and difficulty in modifying your behaviour based upon the prospect of punishment. This report was, of course, prepared when you were a child and there are aspects of the report which really relate to you when you were an adolescent. It was for this reason that it was necessary to obtain a further report.
38 I have now received a report dated 11 July 2019 from Dr Amanda Nielson, a forensic neuropsychologist. You were assessed at the Melbourne Remand Centre on 6 June this year for this purpose. You told Dr Nielson that after leaving school you were often aimless, spending time on the streets and then getting into, what you described as, the ‘drug party scene’. You told her you had engaged in 'lots of fighting on the streets' which led to criminal acts. You reflected that during this time you began to realise that you had the capacity to hurt others. You said to Ms Nielson 'I got violent as a teenager'. You described to her engaging in largely antisocial behaviour with persons you described as your 'crew'.
39 You told Dr Nielson that you have had previous thoughts of suicide relatively frequently and that you have made some attempts, most recently in custody, when you placed a plastic bag over your head before other prisoners intervened.
40 During the course of the assessment you were described as demonstrating a variable ability to control your behaviour. Dr Nielson says that you at times became overwhelmed by large amounts of information. She says that your expression and comprehension were unremarkable and there was no evidence of any psychotic phenomena. She describes you as a vague historian.
41 In addition to interviewing you Dr Nielson spoke to your partner, Ms Vong, who gave an account of the tragic circumstances as regards your son and also described matters relevant to your functioning including as to memory, impulsivity and what was ultimately described as the labile nature of your mood.
42 Dr Nielson assessed you as having an IQ in the low average range and opines that you presented with abilities largely in the low average range with specific deficits in verbal memory and executive function. She describes your executive function as extremely poor and says that your executive deficits and the information from your partner as regards daily functioning indicates that a diagnosis of ADHD should be considered. She says that in your case ADHD appears to manifest predominantly in impulsivity. She expressed some surprise that the 2013 assessment rejected ADHD as a diagnosis.
43 Dr Nielson states that, in her opinion, you would be a good candidate for psychological therapy with goals including emotional regulation work, anger management and grief counselling. She says forensic psychological support could address the role your cognitive behavioural difficulties play in your offending, including how your difficulties with decision making and problem solving lead to offending behaviour. Dr Nielson says you also require ongoing substance abuse support. Dr Nielson opines that a period of imprisonment is unlikely to lead you to being subjected to a substantially or materially greater burden compared to other prisoners. She says, in fact, you many benefit from the increased structure inherent within a prison setting. She says your ADHD is unlikely to render you more vulnerable in a prison setting.
44 Dr Nielson further opines that your ability to stop, consider your actions and their consequences and evaluate prior to making a decision is impaired by your poor impulse control and therefore your ability to make calm and rational choices would be considered impaired. She says you are significantly disinhibited due to your ADHD. She says it is more likely than not that the disinhibiting effects of your condition and the impact of this on your decision making and problem solving played a significant and causal role in your offending behaviour.
45 While in custody I note that you have returned two clean urine screens and completed numerous modules of education. You have also engaged with Forensicare and in 11 social work sessions. The relevance of this is that it seems that you are making efforts to assist your own rehabilitation. That being said, as regards your prospects, in my view, they can be assessed as no more than guarded given your history and the matters which have underpinned your offending. Nevertheless you are still a youthful offender and the community must maintain a real interest in your rehabilitation as that is the community's best protection into the future. The efforts you have made in custody as regards education are perhaps cause for some optimism that you are finally ready to address your offending behaviour but the reality is that you will need substantial assistance to make what I think will be a challenging transition back into the community.
46 As well as matters personal to you I have had regard to other sentencing considerations. General deterrence must be given significant weight in matters such as this. This type of offending has very real consequences for both the victims and the community at large. We all have a right to live and work in our community without being subjected to this kind of violent offending. The message must be clear that condign punishment will result in appropriate circumstances.
47 In your case specific deterrence must also be given weight in light of your history. Your sentence must manifest the community's denunciation of your conduct and impose just punishment.
48 I take into account your plea of guilty which you entered at the earliest opportunity. You have saved the community the time and expense of a trial. You have saved the victim from giving evidence in relation to this matter. You were cooperative with the police in assisting them to locate your co-offender. You made some admissions in the record of interview to which I have already referred and, as noted, pleaded at the earliest opportunity.
49 In my view your plea of guilty has not only the usual utilitarian benefits but is, in your case, capable of being used as some evidence of remorse. I note that you have continued to express such remorse to both Mr Cummins and others post your offending. You have been able to verbalise some empathy for the victim.
50 Importantly, you are still a youthful offender. You were 21 at the date of this offending. You are now 22. As I have said, the community has and must maintain a very real interest in your ultimate rehabilitation.
51 I accept that the weight of custody will bear upon you given your understandable concerns for your partner and parents. I note that the diagnosis of ADHD has been made for the first time and it seems that you are now willing to engage in treatment. This too bodes well in terms of the future for both you and the community.
52 It is conceded by your counsel that the material before the court does not enliven the Verdins principles but, at least to some extent, your recent diagnosis assists in explaining your impulsivity and at least means that there is something to address and work with.
53 In relation to this matter your counsel quite properly concedes that the only disposition open is a term of imprisonment. The Crown, of course, concur.
54 You are convicted and sentenced as follows.
55 Charge 1, armed robbery, four years' imprisonment.
56 Charge 2, common assault, 12 months' imprisonment.
57 I direct that six months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1. That is a total effective sentence of four years and six months.
58 I direct that you serve three years before becoming eligible for parole.
59 I direct that 355 days be reckoned as served.
60 I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to a total effective sentence of six years and six months with a non-parole period of four years and six months.
61 I make the compensation order in the sum $1,300 in the terms of the draft.
62 HER HONOUR: Thank you very much. Remove the prisoner please. I thank counsel for their assistance. 2.15 for trial.
- - -
0
0
0