Director of Public Prosecutions v Mataafa
[2014] VCC 1033
•14 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00574
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM MATAAFA |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 May 2014 | |
CASE MAY BE CITED AS: | DPP v. Mataafa | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1033 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Coombes | |
| For the Accused | Mr A. Waters |
HER HONOUR:
1 William Mataafa, you have pleaded guilty to one charge of armed robbery, Charge 1, and one charge of recklessly causing injury, Charge 2. The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for recklessly causing injury is five years' imprisonment.
2 The prosecution sought an order for disposal of certain items. The making of that order was not opposed.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. CCTV footage of parts of the incident was tendered as Exhibit B.
4 In brief, the circumstances were as follows. The offending occurred on the night of Thursday 14 March 2013. You were 19 years old at that time. You and two co-offenders drove in a stolen car to the Springvale RSL Club. You covered your face with a red balaclava and black T-shirt. You armed yourself with a rock that was placed inside a sock. Your co-accused, Jonathan Moran, was carrying a kitchen knife. His face was also covered. You knew that he had a knife. The third co-offender has not been identified.
5 The three of you went into the Springvale RSL Club at about 11 pm. The duty manager was behind the members' bar. Mr Moran went around behind him in the bar area and reached around the duty manager with the knife in his hand and demanded to be given the till. The duty manager was scared and decided to cooperate. He took Mr Moran into the strongroom. Mr Moran continued to hold the knife to the neck of the duty manager. In the office area, he gave the duty manager a cloth bag and told him to "put it in here". The duty manager passed a money tin containing approximately $350 to Mr Moran. Mr Moran grabbed the money tin, ran out and jumped over the counter to leave.
6 As Mr Moran was fleeing, a patron grabbed him and wrestled with him. You had been in the reception area holding the sock with the rock in your hand. You came to assist Mr Moran and tried to pull the patron off him. The patron's father-in-law intervened and punched you. You and Mr Moran broke free and ran towards the front door. The patron kept trying to stop you and was wrestling with you.
7 The third co-offender who was masked joined in the fighting. The patron's father-in-law hit this offender on the head with a wheelchair. During the course of the struggle, Mr Moran struck the patron on the head with the stolen cash tin, causing a cut to his head. That is the injury which is the subject matter of Charge 2.
8 At some point during the struggle, the T-shirt and red bandana covering your face were ripped off. You and the third unidentified co-offender ran away while Mr Moran was apprehended by the patrons. You and the third unidentified co-offender fled the scene in the stolen car in which you had arrived.
9 The money tin contained and the $350 approximately was recovered from the scene and returned to the RSL.
10 This matter proceeded by way of straight hand-up brief at the committal mention on 31 March 2014 with you indicating your plea of guilty. It was conceded by the prosecution that this was an early plea of guilty.
11 A Victim Impact Statement from the duty manager was tendered as Exhibit C. In his statement, the duty manager says that he felt insecure in his employment due to the stress which this incident caused. He says he has sought professional help from a counsellor in order to deal with the matter.
12 A number of exhibits were tendered on your behalf, including a report from Mr Michael Bilyk, psychologist, dated 30 June 2013, Exhibit 3, and a supplementary report from Mr Bilyk dated 15 July 2013, Exhibit 4. Also tendered were a Department of Human Services Pre-Sentence/Breach Report dated 9 November 2012, Exhibit 5, and a Department of Human Services Progress Report dated 9 May 2013, Exhibit 6.
13 In sentencing you, I have taken into account your personal circumstances which I have derived from what was said on your behalf by your counsel and the contents of the exhibits tendered. You were born in New Zealand and came to Australia as an infant. You are one of nine children. Your parents separated when you were about two years old. You told Mr Bilyk that you had experienced violence and sexual abuse at the hands of an undisclosed family member at about the age of six. You have not provided any details of this and Mr Bilyk says you have significant difficulty being able to talk about this.
14 Your mother had followed your father to Australia to try to reconcile but that was unsuccessful. An uncle came to live with you and you formed a close bond with him. Your uncle died in about 2006. It appears that your behaviour became problematic after that time. You became involved with a negative peer group and you began misusing alcohol and cannabis.
15 You have admitted a prior criminal history which includes a number of Children's Court appearances for serious offending, including burglary, dishonesty and violence offences.
16 It appears from the Pre-Sentence/Breach Report tendered as Exhibit 5 that you had made reasonable progress on a probation order imposed on 21 September 2011. You completed a six-month stay at the Birribi Residential Withdrawal Facility in September 2012. During that stay, you achieved your year 10 pass. You have also engaged in music programs and drug treatment programs. The writers of that report recommended that you be placed on a new probation order for breaching offences.
17 You were placed on a new probation order in November 2012 but sadly your positive progress did not continue. You did not comply with the requirements of that order. It appears that you had again engaged in illicit drug use.
18 On 18 November 2013 you were sentenced to be detained in a youth justice centre for a period of three years on one charge of armed robbery. 217 days of that sentence was reckoned as already served by way of pre‑sentence detention. That pre‑sentence detention had been in adult custody.
19 The Summary of Prosecution Opening for that matter was tendered as Exhibit D. That offending occurred on 7 April 2013 which was about three weeks after the offence for which I am sentencing you. That armed robbery was committed on a service station. You were disguised and armed with a large steak knife. You were with two co-offenders.
20 Mr Bilyk, in his report dated 30 June 2013, suggested that you are at the moderate risk range of violent recidivism. He says:
"This result should be contrasted however with seemingly unresolved post-traumatic symptomology, including a range of associated and psychological sequelae, including problematic substance abuse."
21 In his supplementary report, Exhibit 6, Mr Bilyk says that at the time he assessed you, you were in adult custody. You denied that there had been any adverse incidents in prison but did say that you found yourself cooperating and aligning yourself with the expectations of older and more entrenched prisoners to avoid being targeted. Mr Bilyk's opinion was that you were not exceptionally vulnerable in adult custody but were prone to having undesirable influences impressed on you.
22 You have served 393 days of the sentence imposed on you in November 2013. Your counsel in sentencing submissions said that he had received advice that you would not be found suitable for Youth Justice Centre now and that you were not seeking such an assessment but rather a sentence of imprisonment in adult custody.
23 In sentencing submissions, your counsel particularly relied on your early plea of guilty and your young age. Your counsel submitted that you had reasonable prospects of rehabilitation given your past positive progress for a period of time. He emphasised the importance of rehabilitation as a sentencing consideration given your age.
24 Your counsel also addressed parity issues and suggested that your role in this offending was no greater than that of Mr Moran. He noted that Mr Moran had committed fewer prior offences compared to you but said that Mr Moran was armed with the knife which he held towards the person and made demands. He suggested that ultimately a sentence which was not dissimilar to Mr Moran's in terms of length would be appropriate.
25 Your counsel submitted that considerations of totality would lead to the conclusion that both the head sentence and non-parole period imposed ought to take into account the sentence that was imposed on you in November 2013. He submitted that an appropriate sentence would be one which would give effective total concurrency with the remaining portion of your current sentence and that in setting the non-parole period, I ought to take into account that you have already served a year in custody. Your counsel argued that there ought be some application of Verdins' principles in view of the contents of Mr Bilyk's reports.
26 The prosecutor suggested that the diagnosis of post‑traumatic stress disorder meant that Verdins' principles 5 and 6 could be applicable in this case. The prosecutor conceded that you had made an early plea of guilty which ought to be taken into account as an expression of remorse and that you were a young offender and, as such, rehabilitation is important.
27 The prosecutor submitted that this was a serious offence and that gaming venues were common targets. Accordingly, general deterrence was very important. It was also submitted that there were aggravating aspects, including the use of disguises, being in company and some pre-planning.
28 The prosecutor confirmed that your liability in respect of Charge 2 was on the basis that you were engaged in a joint criminal enterprise.
29 William Mataafa, you have engaged in serious offending. The maximum penalty for armed robbery reflects the seriousness with which parliament on behalf of the community takes this type of offending. Additionally, a person was injured when the three of you were trying to escape. I am satisfied that there was some planning in this matter. The three of you went disguised. You knew that Mr Moran had a knife and you armed yourself.
30 What the three of you did must have caused considerable fear to the people who were involved in the incident, especially the bar manager. You seriously impacted on the lives of patrons who had gone to the club to have a pleasant social evening. It is very important that other people be deterred from attempting to get money for drugs or anything else by committing armed robberies on such targets as this.
31 I have taken into account in mitigation a number of matters. You are entitled to a significant discount for your plea of guilty. You indicated your plea of guilty at the earliest opportunity and that plea has saved the expense, trauma and inconvenience of a trial. I also accept that that plea is an indication of your genuine remorse.
32 You are a young offender and your rehabilitation must be a very important sentencing consideration. I consider that your prospects of rehabilitation are moderate. You have committed serious offences before and have breached probation orders that were imposed in an attempt to assist you in engaging with drug and alcohol counselling and education. It appears from your history that you have the capacity to engage in rehabilitation and positive activities. It is to be hoped that with greater maturity, you will be able to make better decisions in the future and will be able to resume your efforts to engage in education and training and to stay away from illegal activities. It seems that your family will be able to give you support on your release if you do decide to try to make a better life for yourself.
33 While your rehabilitation must be a very important sentencing consideration, I am of the view that weight needs to be given to other sentencing considerations of punishment, general deterrence and specific deterrence. You are young to be in adult custody. I accept that you are likely to find imprisonment more difficult because of your psychological issues, although I note that you have appeared to cope reasonably well in the past in adult custody. In view of what Mr Bilyk says in his reports, I accept that it is likely that there is a significant risk that your post‑traumatic stress disorder symptoms would become exacerbated in adult custody. I consider that, in application of Verdins' principles 5 and 6, the sentence ought to be moderated but only to a limited degree.
34 I have taken into account that your role in this offending was less direct than that of Mr Moran but there were other considerations which applied to Mr Moran that do not apply to you. You are responsible for Mr Moran's actions as well as your own, given that you were engaged in a joint criminal enterprise.
35 I have considered the nature of the offending for which you received your current sentence and the length of imprisonment which I consider would be appropriate in the light of the sentence that you received for that offending. It is of significance that your offending for which you received your current sentence occurred very close in time to the offending for which I am sentencing you. The application of totality principles is reflected in the head sentence, degree of concurrency and in a significant reduction in the length of the non-parole period that I would have otherwise imposed.
36 In setting the non-parole period, I have also taken into account your age and prospects for rehabilitation. I consider that you could benefit from the supervision and support of the Parole Board if the Board considers you are suitable for release on parole.
37 Please stand, Mr Mataafa. On Charge 1 of armed robbery, you are convicted and sentenced to a term of imprisonment of two years and five months. On Charge 2, of recklessly causing injury, you are convicted and sentenced to four months' imprisonment. One month of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1. The total effective sentence is two years and six months' imprisonment. I fix 12 months as the period you are required to serve before you are eligible for release on parole.
38 But for your plea of guilty, I would have sentenced you to imprisonment for three years and six months with a non-parole period of two years and two months.
39 The sentence to be imposed today is to be served concurrently with any sentence currently being served by way of imprisonment or detention in a Youth Justice Centre.
40 I have made the disposal order that was sought for various items.
41 Thank you, Mr. Mataafa. Please take your seat.
42 HER HONOUR: Anything that needs repeating or that I have left out that I need to address?
43 MS COOMBES: No, Your Honour.
44 MR WATERS: No, Your Honour.
45 HER HONOUR: All right. Thank you very much for your assistance.
46 Mr Mataafa, I hope you give some thought to your future while you are in custody. You are quite clearly capable of having a good life and not spending all your life in gaol. It is really up to you to make those decisions though and to try and plan for your release, so I hope that is what you do decide to do. Thank you.
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