Director of Public Prosecutions v Molesi-Mati
[2012] VCC 2211
•21 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-12-01554
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE MOLESI-MATI |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 October 2012 |
| DATE OF SENTENCE: | 21 October 2012 |
| CASE MAY BE CITED AS: | DPP v Molesi-Mati |
| MEDIUM NEUTRAL CITATION: | [2012] VCC 2211 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Armed robbery – Offending committed in the context of being alcohol affected – Excelled academically - Co-offenders – Parity in sentencing
Cases Cited: R v Evans [2003] VSCA 223
Sentence:Community Corrections Order imposed for 2 years with mandatory and other conditions including Judicial Monitoring
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Ms H. Bate | Cameron Marshall & Associates |
HER HONOUR:
1 Tyrone George Molesi-Mati, you have pleaded guilty to one charge of armed robbery which carries a maximum term of 25 years’ imprisonment. Therefore, Parliament regards this as a most serious offence.
2 The circumstances of your offending were opened as follows:
3 By way of background I was told that you are 19 years old, having been born on 6 July 1993. At the time of the offence you were 18 years old.
4 The victim in this matter Jijo Mathai was working at the Seven Eleven store located at 1154 Centre Road, Clarinda as a customer service representative.
Offending
5 The matter was opened by reference to the Prosecution opening but this was qualified or supplemented to some extent by the CCTV footage of the incident in conjunction with the learned Prosecutors oral submissions.
6 At approximately 2.45 am on Tuesday, 29 November 2011 the victim was alone in the store and was stocking the shelves at the rear end of the store.
7 You entered the store in the company of Chris Fred, Brendan Bourke and a third male known as Jonny. All of you were armed with metal poles and sticks. You were covering your face with the hood from your top whilst others were wearing masks, balaclavas and gloves. You all started shouting and approached the victim.
8 Your co-offenders grabbed the victim by the shirt and neck and walked him over to the register area. They forced him to open the security door to the staff area of the counter. The victim entered the staff area and your three co-offenders followed him in.
9 At one stage in the CCTV footage, it appears that you also tried to get in but the security door had closed.[1] You are seen to move to the front of the counter, making demands for money and twice striking the counter with a metal pole.
[1] Record of Interview (Q94 –p46)
10 Once inside the staff area of the counter, Fred and the male you knew as Jonny threatened the victim and demanded he open the cash register. The victim opened the register and they took all the money. At the same time Bourke opened the cigarette cupboard, removed cigarettes and placed them inside his jacket. He then moved to a second cupboard and took more cigarettes. Before they left the staff area of the counter Jonny removed the entire lower tray of cigarettes from one of the cupboards.
11 The armed robbery lasted approximately two minutes and the offenders fled the store along Centre Road towards Clayton.
12 The victim was very shaken by what had happened.[2]
[2] Statement of Jijo Mathai (p12)
13 The armed robbery was captured on the CCTV footage within the store. [3] It depicts the offender entering the store, pursuing the victim, striking the counter with a metal pole and running from the store at the completion of the armed robbery.
[3] CCTV footage, Exhibit 1
14 You were arrested and interviewed at the Caulfield Police Station on 26 April 2012 where you made full admissions, stating that:[4]
[4] Record of Interview (pp.35-60)
· you had been drinking in the local park with co-offenders Brendan Bourke and Chris Fred prior to the armed robbery and could not remember much of the night (Q40-45, 53-67, 175);
· you drank about four to five bottles of beer (Q46);
· you told police that someone said “Do you want to do a job?” and you said “Yeah, all right, why not” (Q155);
· you said that you found the metal pole on the side of the road (Q89);
· you remembered running into the store with Bourke, Fred and Jonny and seeing the victim at the back (Q73-86, 94);
· your co-offenders rushed the victim to the front of the store and followed him into the staff area (Q94);
· the victim looked scared and was “putting his hands up a lot” (Q142);
· you wanted to go into the staff area of the counter but the safety door closed so you moved to the front of the counter (Q94-111);
· your co-offenders grabbed whatever they could and he was telling them “Get this, get that, open the door” (Q94, 112);
· you “smacked” the counter once or twice with a metal pole in the adrenaline rush and demanded the victim to open the door (Q114);
· you and the others ran down to the Centre and split the money from the armed robbery (Q120-122);
· you received $20.00 cash and a couple of packets of cigarettes that you smoked that night (Q121) and
· you bought more alcohol later that night (Q212).
15 On 30 May 2012 you made a statement to the police detailing the circumstances of the armed robbery and identifying Fred and Bourke. I understand that you had only met the third offender that night and so only knew him as ‘Johnny”.
Victim Impact Statement
16 A Victim Impact Statement was not made but it would not take any imagination to understand that the victim was very frightened by this thuggish and cowardly behaviour. In this regard, I note that in his police statement the victim said that he was very shaken by the ordeal.
Charge History
17 You were charged on 26 April 2012.
18 You pleaded guilty to the offence at the committal mention on 22 August 2012 and have not spent any time in custody in relation to this matter.
Co-offenders
19 Brendan Bourke entered a plea of guilty before the Children’s Court and is taking part in the Youth Conference process.
20 Christopher Fred was convicted and sentenced by the Children’s Court to a term of imprisonment of 12 months to be served in a Youth Justice Centre. The sentence was a consolidation with a number of similar charges.
Your Offending
21 Your offending is most serious and is deserving of just punishment in all of the circumstances. It must also be denounced. You attended the shop in numbers in the early hours of the morning. You used a pole that you held to strike on the counter, no doubt in a bid to intimidate the victim, as if the presence of the four of you with three behind the counter was not enough. Your behaviour was frightening and cowardly, aimed at a soft target who was doing no more than trying to earn a living. It is evident from the CCTV footage that you followed the others in and were the first to leave the store. You did not manhandle the victim as the others did, although, it is unclear as to what your intention was in trying to access the inside counter area at one stage. But I sentence you on the basis of what you actually did and do not speculate as to what your intention was at this particular time.
22 I was told by your Counsel that you came to commit the offence after commencing drinking in the morning of the previous day. You then went to a park to continue drinking and it was there that you met your co-offenders. Two of these were known to you whilst the third was not. I was concerned that your conduct may have been premeditated as you entered the store armed and some of your group were wearing balaclavas or masks. However, you used your jacket hood to shield your face and the weapon which you took into the store was something which you found on the edge of the road. Further, the Crown did not allege premeditation on your part; so, it appears that you decided to commit this offence in the context of being highly intoxicated and fairly spontaneously, agreeing to the suggestion to commit the offence.
23 You have one prior Court appearance. On 20 October 2010 at the Moorabbin Children’s Court you were released on an accountable undertaking to be of good behaviour for 5 months. You were able to honour that undertaking. I was told that you also committed these offences whilst affected by alcohol. This prior offending occurred on a Saturday night when you walked past a shop. According to your report to the assessing community corrections officer, this was also done in the company of others, who suggested you do this. You damaged the front of the shop and grabbed some items within. It seems that alcohol and cannabis abuse in combination with the company of your peers disposes you towards offending. You must develop the courage and maturity to resist these influences and I will be imposing a sentence which maximises your chances of doing so. After that, it is up to you as to whether you continue to predispose yourself to criminal offending or whether you decide to behave responsibly.
24 Your co-offender, Christopher Fred has numerous prior matters dating back to 2009 including for robbery and armed robbery, and other offences for violence. He has been afforded every indulgence that the Children’s Court might be able to offer as he has constantly breached the penalties imposed by further offending. The consolidation of matters which combined with the offence that he committed with you comprised 3 other charges of armed robbery as well as breaches of supervision orders which had been granted for previous offences which included robbery and offences of violence and dishonesty. I see that he was sentenced in respect of a further armed robbery and a charge of theft on 9 August 2012, and has committed further offences thereafter.
25 He may be younger than you but he has certainly more experience when it comes to criminal behaviour. While I accept that he and Mr Bourke were sentenced in the Children’s Court regime, there is little that separates you in terms of age, and the need to do what can be done in each of your particular circumstances in a bid to achieve your rehabilitation; so while parity might not be applicable in a strict sense, it is still something to which I have regard in this case. In this respect, the learned Prosecutor referred me to the authority of R v Evans [2003] VSCA 223 which, in my view, supports this approach.
26 It does not appear to have been your idea to rob a store but you had no difficulty in agreeing to the idea when it was suggested. This is a great shame, especially as you have so many accolades from school for your leadership qualities. Apparently, your alcohol intake and perhaps your realisation earlier that day that you had just thrown your VCE away, have impacted on your poor decision-making in choosing to commit the offence. While it appears that others in your group had the means to disguise themselves, you were not so equipped, which tends to separate you out as less culpable than those who, it might be said, came to the park, prepared with a disguise in the event that they needed to use this.
27 You committed the offence in the context of having suffered anxiety at the prospect of doing your VCE English Exam and so you hid out in a shed at home and commenced to drink. You then realised that you had completely destroyed your chance of obtaining an Enter score for University, as English was the one compulsory subject required. The realisation caused you to continue drinking. You went to the local park to continue this activity, so as to avoid your mother discovering you. Apparently, you had not even told her that your exams were proceeding that week such was your anxiety at the prospect of doing them.
28 As well as pleading guilty at a very early stage, you made a most informative record of interview, and elected to make a statement to police in which you did your best to assist in the investigation, including identifying, as best you could, your co-offenders. It is accepted by the Crown that your co-operation was most beneficial, as it led to one of your co-offenders, who had made a ‘no comment’ ROI and who was to contest the matter on the basis of identity, to plead guilty. Therefore, your early plea of guilty has saved the witnesses, especially the victim, the time and trauma of giving evidence, and it has saved the community the trouble and expense of running contested proceedings; and you have facilitated justice further in this way, by making a statement which has led one of your co-offenders to plead guilty. Your early plea of guilty entitles you to a significant discount in the sentence that you would otherwise receive, but, over and above this, your co-operation is deserving of a very substantial discount in penalty – this is because you have facilitated justice in the way I have just explained and also, because, others who might find themselves in your position, might be encouraged to come forward and co-operate as you have.
29 In your case, I am satisfied that your early co-operation and plea of guilty as well as what you have articulated in a letter to the victim, manifest your genuine remorse for your wrongdoing. Although at the plea, I was concerned that your letter to the victim was of a self-serving nature, having read the letter, I accept that it is a genuine expression of remorse which shows insight into the way in which your offending may have impacted upon the victim. Such remorse bodes well for your prospects of rehabilitation.
30 I was told by your Counsel that since you were quite young, you have played rugby with school and with a local side. You played for a team on Saturdays where from the time you were in year 9, you became involved in the most regrettable post match tradition of drinking alcohol. In this year you also consumed some cannabis which led to two days suspension from school. On the other hand, you have excelled at school including year 9 which is evidenced by the numerous certificates tendered on your plea.
31 I will list these in the order that they appear in the folder you handed to the Court:
A. Westall Secondary College Certificate of Achievement for Outstanding Performance in Rugby 2007;
B. 100 per cent attendance award for Term 1, 2009;
C. 100 per cent attendance award for term 3 2009;
D. 2 Principals awards for student of the week in term 2 2006 when in year 7;
E. Year 11 Student award for specialist skills in digital photograph manipulation and for willingness to help others in Studio Arts;
F. Certificate of Credit Year 7 for the Australian mathematics competition run by Westpac bank and a certificate of participation for this in 2008;
G. In 2007 you received a Community Spirit and Leadership Award presented by the Honourable Simon Crean. The award was said to be in recognition of the outstanding contribution of students in local schools and you won this award for your school;
H. Year 9 student award for excellent performance in mathematics-the certificate says that it is also awarded for you being a good friend and showing sympathy to two other students who were in conflict and for being a positive role model;
I. Year 10 student award for very good achievement in mathematics;
J. December 2008 you obtained a certificate for completion of training in leadership skills for the Peer Support Program;
K. In 2010 you received a letter telling you that you had been selected to attend a second workshop with a view to being chosen as a ‘Reach’ leader;
L. A Victorian certificate of Education dated December 2011 setting out that you had completed Year 12 notwithstanding that you did not sit the final exams;
M. Certificate of Excellence in recognition of your involvement and achievement with the Westhall Peer Program 2009 and outstanding leadership qualities-this was awarded to you by the City of Kingston and your school;
N. 2009 Certificate in recognition of your outstanding performance and contribution to Under 18 Boys Touch State Schools Champion;
O. Under 18 Boys Touch Victorian All Schools Runner up;
P. Certificate of appreciation for your participation/contribution to the Arts Burst Festival 2009;
Q. 2009 Clayton RSL scholarship for general excellence in your studies and school/community involvement; and
R. 16 March 2011 a Staff Employment training certificate in respect of your completing a course in Logistics.
32 It is clear from the character references provided by your level 9 co-ordinator and the numerous awards that you have received, that you have been an exemplary student and a tremendous contributor to school life. I was told that you selected your year 9 co-ordinator to provide a reference as he was the person you have had most to do with during your schooling life. Your mother has also provided a reference. She speaks very highly of you and also expresses her dismay at the wrongfulness as to what you have done. She is a sole parent who has the care of you and your two younger brothers. Your youngest brother, Albert, suffers from has a most debilitating condition of Ohdoblepharaphamosis which means he suffers a number of disabilities, including an intellectual disability. He has a high degree of special needs. He attends a special school but when not at school he is in your mother’s full time care. For many years, you have been her main support, helping her with looking after your brother, Albert, who is highly dependent on others on a daily basis. When you had committed this offence, I was told that you confided in your 13 year old brother, Dorian, that you would soon be apprehended by police and that he should step into your shoes to help your mother. Your mother makes it very clear in her character reference that your help with Albert has been indispensable.
33 In sentencing you I must place considerable weight on general deterrence. That is, I must impose a sentence which sends a strong message to others in the community not to behave as you have.
34 In the course of the plea hearing I asked your Counsel whether you were still consuming alcohol. He took instructions from you. You said that you had not been drinking up until two weeks prior to the plea hearing. I was impressed by your truthfulness about this, Mr Molesi Mati. As you’d be aware though, alcohol is something which you need to address as it has clearly contributed to you making bad decisions on two occasions now. You have the makings of a fine young man but if you continue to abuse alcohol, you will end up in more and more trouble, and you are at great risk of going to gaol if you reoffend in the future. You will let yourself and your family down, as well as those who have educated you and supported you in the community.
35 I understand that you have work that you can go to, and I also understand that your mother needs your help with Albert. I also take into account that the pressure that have been placed upon you in the past as ‘the man of the house’ have been immense and that the future may be even more of a challenge as your mother’s eyesight deteriorates due to the diabetes which she suffers. Both your brothers need you to look up to. You had aspired to study at University, and you can and should still do so. There are other ways in which you can gain entry, as I understand the system and you should look into this, as you have the talent and the interest to pursue higher studies. This will improve your self-esteem and may well improve your job opportunities, notwithstanding that you have a criminal record. But it is also something that will help you to get beyond your present situation and avoid ever going back there.
36 I had you assessed for a CCO and Youth Justice Centre in circumstances where the Prosecution submitted that Youth Justice Centre was the appropriate disposition. You have been assessed as appropriate for both of these dispositions. Ordinarily, a person who has committed the offence that you have, must receive some form of immediate custodial sentence as nothing else will do to address all relevant sentencing considerations and the weight that must attach to these.
37 The present government brought in CCOs which have the capacity to be far more expansive and flexible than Community Based Orders which have been abolished. CCOs can be tailored to a broad range of offending and individual circumstances, and are no soft option. As the Attorney General said in the second reading speech, ‘At the highest end, the CCO may be an offender’s last chance to serve a sentence in the community before being subject to imprisonment.” If it wasn’t for your high level of co-operation with the police which has resulted in one of your co-offenders pleading guilty, I believe that I would have had no option but to have you detained at a Youth Justice Centre at the very least, such is the seriousness of your offending and the strong weight that should be attached to general deterrence. This would have to be the situation, notwithstanding the other mitigating matters in your case. However, in view of the allowance that I make in respect of this high level of co-operation, you come within the range of a community corrections order, and I reject the Crown’s submission that you do not.
38 Whilst it is true that your co-offenders, Mr Fred and Mr Bourke were dealt with in a different regime, it cannot be right that in circumstances where Mr Fred is slightly younger than you, and has a hefty criminal history and was ordered to undergo 12 months’ YJC for this offence plus a number of others that he would fare as well as or better than you in respect of penalty. In my view, this would be the outcome if I were to accept the Crown’s submission on range which does not sufficiently take into account your significant co-operation; nor the other strong mitigatory matters in your case. Also, Mr Bourke who was slightly more involved than you in the armed robbery and who had made a ‘no comment’ record of interview and intended pleading not guilty until he became aware of your statement, received a very lenient sanction. Again, I emphasise that I am conscious of the fact that he was also dealt with in the Children’s Court and is younger than you. But, you are still a young man and someone whose prospects of rehabilitation ought be maximised. In all of the circumstances, I assess your prospects of rehabilitation as being quite good. They much depend on your success with abstaining from alcohol abuse and from peer pressure, in my view. I put you on notice that if you choose to abuse alcohol and commit an offence in this setting then your alcohol abuse may well be seen as an aggravating feature by any future sentencing judge. If this happens, you will be sentenced more harshly than would otherwise be the case.
39 While significant weight must be placed on general deterrence, I place only some weight on specific deterrence as you have a limited criminal history and you are of otherwise good character with much to aspire to and live up to. You also have good family support and have shown a preparedness to take responsibility for this offending at an early stage as well as feeling genuine remorse.
40 I am of the view that in all of the circumstances a CCO can cater for the weight that I must attach to all sentencing considerations but I can only impose such a disposition with your consent.
41 Stand up please, Mr Molesi-Mati.
42 First I make an order for the taking of a sample of saliva by buccal swab from your mouth. If you do not co-operate with this procedure the authorised officer may use reasonable force to ensure compliance. I make the order because of the seriousness of the offence, because it is not opposed and it is in the public interest to make the order.
43 On the charge of armed robbery you will be convicted and I propose to place you on a CCO for two years.
44 The mandatory terms that apply to all Community Correction Orders are:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
·You must report to, and receive visits from, the Secretary (or delegate);
·You must report to the Community Corrections Centre within two clear working days of the order starting;
·You must let a community corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
·You must obey all lawful instructions from and directions of the Secretary (or delegate).
45 The conditions that apply in addition to the mandatory terms listed are:
Unpaid Community Work
You must perform 300 hours of unpaid community work over a period of 2 Year(s) as directed by the Regional Manager.Supervision
You must be under the supervision of a Community Corrections Officer for a period of 2 Year(s).Treatment and Rehabilitation
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
You must undergo assessment and treatment (including testing) at a residential facility for withdrawal from or rehabilitation for alcohol or drug abuse or dependency as directed by the Regional Manager.
You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
Non-association
You must not contact or associate with Chris Fred, Brendan Bourke and ''Jonny'' (surname unknown) for a period of 2 Year(s).Judicial Monitoring
You must attend for review on 25th February 2013 at 09:30 AM at Melbourne County Court to be reviewed by me and I will probably require you to attend for further review at three month intervals after that..Residual Conditions:
You must report to Dandenong Community Correctional Services on Friday 26 October 2012 at 3.00pm.
46 Do you understand this? Do you maintain your consent to the order?
47 Do you consent to the terms and conditions of the order?
48 I should tell you that if you do not comply with all of the requirements of this CCO then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to gaol. I would regard a breach of the CCO as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
49 Therefore in relation the charge you are convicted and sentence to a CCO in the terms and conditions that I have just set out.
50 You can come out of the dock and I will ask your Counsel to assist you with the signing of the CCO.
51 If not for your plea of guilty and your extensive co-operation with police I would have sentenced you to 21/2 years YJC.