Director of Public Prosecutions v Moeffaauo

[2016] VCC 1196

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00919

DIRECTOR OF PUBLIC PROSECUTIONS

v

NASHON MOEFFAAUO

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2016
CASE MAY BE CITED AS:	DPP v Moeffaauo
MEDIUM NEUTRAL CITATION:	[2016] VCC 1196

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Mr W. Barker

HIS HONOUR: 

1You, Nashon Moeffaauo, have pleaded guilty before me to one count of causing injury recklessly; and one count of armed robbery. 

2Your offending arises out of circumstances which were opened to me by
Mr Roper and the materials comprising that opening are Exhibit 1, and I propose to read from that exhibit.

3You were aged 22 at the time of the offences and residing in Cairnlea.  You are a New Zealand citizen, lawfully in Australia and the victim was a 26-year-old working as a console operator in Yarraville. 

4On 9 February at approximately 4.30 am, the victim was opening up the National Lube Service Station in Yarraville.  Shortly thereafter, he was cleaning and preparing the coffee machine when you entered the store and demanded money.  You were wearing distinctive clothing and you walked up to the victim, armed with a pair of scissors and grabbed him in a headlock, pressing the scissors against his neck, which caused a laceration to the right side of the neck as he struggled.  There are photographs tendered of the injury to his neck and I have viewed them and viewed the DVD, which was also tendered. 

5The victim fell to the ground.  You then punched him to the side of the head and he curled up to protect himself.  You then dragged him to the cash register behind the counter and demanded that he open the till, which he did.  You then emptied the till and demanded to know where there was more cash and the victim directed you to the cupboard under the counter, where a small cardboard box contained the weekend takings, which you then took.  The total being around $1,100.  You then walked from the store.

6The victim rang 000 and the ambulance arrived and treated his injuries and police obtained a statement and conducted various examinations then of the available evidence, before conducting an extensive media campaign.  As
a result of that media campaign, you - I understand that it was as a result of your family identifying you and in discussions with your father, it became clear that the family had decided and you had agreed that you should hand yourself in and you attended at the Sunshine Police Station with your father and did just that on 2 March.

7You, of course, were arrested at that time and placed in a room pending the arrival of detectives and in due course you made admissions to being the person depicted in that CCTV footage.  And you also said at the time that you were drug and alcohol affected such that you could not remember the incident taking place, nor could you remember the clothing you were wearing, nor where you had put the scissors that you had used during the incident.

8There is a victim impact statement tendered in this matter, which I have marked as an exhibit and which I have read again this morning and it is clear that the victim suffered in the way that he describes. Not only the physical injuries which he suffered, both with respect to the injury to his neck, but also as a result of the punch and he was also emotionally upset, as a result of the matters and finds difficulty stepping out into public, in the way that he explains in that document.  And, of course, finally, he also had difficulties financially as a consequence, given he was unable to work for approximately two months and that also affected his studies at university.

9As was pointed out by your counsel, there are a number of mitigating factors. You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  The community has, by your pleas, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  And I can tell you, the sentence
I intend to impose is far less that would have been imposed had you been found guilty after a trial. 

10Further, I take into account in your favour that you voluntarily attended the police station and confessed your guilt and made admissions to the police as they interviewed you. I accept that in your case you plea does indicate true remorse for your actions. Your remorse has been disclosed to, not only the police, but also to the other persons who provided the various documents which were tendered in support of you by your counsel and they constitute Exhibit B, the five testimonials. 

11I was also directed to authority with respect to the fact that a significant degree of leniency should be given to those who voluntarily disclose their guilt, so as to encourage offenders to come forward and disclose their offending.  See particularly Ormiston JA in the case of R v Lomax [1998] 1 VR 551, to that effect.

12Further, the observations of the New South Wales Court of Criminal Appeal in the case of Ellis in 1986, where the Chief Justice, Street CJ, with the other justices agreeing, observed that:

"When the conviction follows upon a plea of guilty, that itself is a result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision.  Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should be properly extended by the sentencing judge.  It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the facts of the offence having been committed and confession of guilt to that offence.  The leniency that follows a confession of guilt in the form of a plea of guilty is well recognised.  Part of a body of principles that cover sentencing, although less well recognised because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant degree - added elements of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement agent authorities, as well as guilt being established against the person concerned."

13You benefit, not only from your plea of guilty, but also from the voluntary disclosure of your guilt in the circumstances described.  Obviously given the fact that you are a New Zealand national and variously in South Australia and Queensland, the prospects of you being actually located and identified were, it seems to me, modest and it was only in the circumstances that you voluntarily made that disclosure that the matter came to the light in the manner it did.

14I have, of course, been told about your personal circumstances and they are helpfully set out in the submissions made on your behalf, and I think marked as an exhibit - A in fact. Your parents separated in 2011 and in the five testimonials I received, which I marked as Exhibit B, it is clear that your mother and your father both say that you suffered significantly after that separation. They both describe the significant effect that had on you when you were, of course, a younger man than you now are and vulnerable to marital breakups in the way that this occurred. 

15You also have four siblings and they are set out.  You were educated to Year 10, when you left to care for your grandfather and then entered the workforce.  You attended a college in Brisbane from pre-school until Year 10. 

16It is clear that you have got a very strong link with the church, both you and your family and you and your family are regular attenders at the local church and you, as I am informed, make donations every Sunday, as well as maintaining
a close relationship with the minister of that church and you have also confided in that minister about your current offending. 

17You have been employed - gainfully employed and also very successfully employed as an arborist.  You worked with your father in the regard after you grandfather passed away, initially for two days a week and then you moved to Adelaide.  At the age of 17 you have worked full-time. 

18You were a full-time carer for you grandfather for approximately a year and then working for a company run by your cousin for approximately three years before you moved to Melbourne.You worked for your father's company as an arborist and garden work, although you had stopped that work prior to your offending. It is clear that you then began using drugs and your life spiralled out of control in a way that is sadly something which is seen in these courts often these days. People such as yourselves who are otherwise hard-working, committed to your particular religion and to your family, but once the drugs start being used, life spirals out of control and sadly ends up in the situation in which you find yourself. 

19Since the commission of this offence, you have not been using drugs at all.  You have recommenced work and have otherwise also restored yourself to your relationship, all of which, of course, all goes well for your future. 

20What I should also mention, of course, is that you have spent 41 days in custody before you were bailed with respect to this matter. 

21It is clear, both from the letters, the testimonials which I have referred to and also the letter from the drug and alcohol counsellor, that you have sought to use the time since your release from custody to effect your rehabilitation and you have been significantly successful in that regard, as I say, giving up drugs and returning to full-time employment, to a full-time relationship and also to the care of your family.

22It is clear also, that notwithstanding your parents have separated, they both retain a very keen interest in you and your welfare and both, as I say, attribute your current situation and predicament to the fact that they were not aware at the time of the significance that their broken relationship was having on you and your inability to cope with that and your attempts to try and bring them together.

23Of course, as a matter of some significance, whilst you do have a couple of modest prior convictions for driving related matters, they are certainly nothing of a like kind with respect to the matter that brings you here today, and significantly, you have been in no further trouble since this matter and I am satisfied, based on the materials available to me, that the chances of your rehabilitation are excellent and I expect to not see you in a criminal court again.

24As well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this.  I have the advantage of the authorities which Mr Barker has provided to me and the schedule attached to that.

25Specific deterrence I do not find to be of great significance, given your offending is explicable, in terms of your inability to cope with a difficult emotional situation in which you found yourself and then unemployment and also, of course, the significant catalyst of drugs.

26I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest in view of the matters that have been raised before me bearing in mind obviously that you have spent 41 days in custody, that
a lengthy community corrections order, will be appropriate to you in your circumstances.

27I propose, in the circumstances, to accept the recommendations of the author of Exhibit 5, the community corrections order assessment outcome report, and to adopt the conditions that are there recommended, being treatment and rehabilitation for drug assessment and also alcohol assessment, and there is also a supervision recommendation that you be supervised by the Sunshine Community Corrections Service.  I think they are entirely appropriate to your situation. 

28I do not, in the circumstances, propose to order a work component - community work component, because it seems to me you have a very strong work ethic and you have always worked very hard and in difficult circumstances and I have no reason to doubt that that will continue. 

29So, I propose to order, with respect to both matters, there be a four year community corrections order, with the recommended conditions and I make no order with respect to the 41 days of pre-sentence detention.

30Finally, I think, under s.6AAA, had you not pleaded guilty to this matter, then
I would have ordered a total effective sentence of three years' imprisonment, with a two year non-parole period. 

31All right, does that complete matters? 

32MR BARKER:  Your Honour didn't state whether or not that order was with conviction or without conviction.  I haven't made any submissions either way, but ‑ ‑ ‑

33HIS HONOUR:  With conviction.  Yes.  Thank you.  Yes, any other orders that you are after, Mr Roper? 

34MR ROPER:  There was a disposal order.

35HIS HONOUR:  Yes, I will - have I got the disposal order?  I will make that disposal order.  I think I have seen it somewhere.  That is with respect to the scissors or something, wasn't it?

36MR ROPER:  Yes. 

37MR BARKER:  It wasn't opposed, Your Honour. 

38HIS HONOUR:  I will make that order when - that can be produced to me and
I will sign that in due course. 

39MR ROPER:  I will get my instructor to email that, Your Honour.  It seems like the ‑ ‑ ‑

40HIS HONOUR:  All right.  It is all right.  If that can be provided.  All right,
Mr Moeffaauo, you can - Officer, he can step forward, I think. 

41MR ROPER:  I am sorry, Your Honour, there was just one other matter. 

42HIS HONOUR:  Yes.

43MR ROPER:  That the order for compensation be adjourned sine die. 

44HIS HONOUR:  Yes, and I will order the application for compensation to be adjourned sine die. 

45All right, Mr Moeffaauo, I mean what you need to understand, of course, is that in the end, what was important was not only the voluntary disclosure of your offending, so you can be grateful.  That was a very smart decision to make, but what is really most impressive is the fact that you have stopped taking drugs, you are back at work and you have gone back to your church and you have gone back to your relationship.  But the point is, for the next four years, you have got to make sure you do not do anything wrong, or any significant thing wrong.  You understand that, do you not? 

46OFFENDER:  Yes, Your Honour. 

47HIS HONOUR:  All right.  All right, well you have got some good people around you, so you make sure you help them in the way that you have helped and they have helped you and I have got absolutely no doubt that you will remain on the right path and be careful climbing those trees.  A big fellow like you should not be up too high in the trees.

48OFFENDER:  I was an arborist. 

49HIS HONOUR:  All right.  Make sure you have got plenty of ropes around you.  All right, we will adjourn.  

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