Director of Public Prosecutions v Moore
[2022] VCC 1345
•16 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01641
CR-21-01640
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTIAN MOORE AND ARMANI TUPAI |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2022 | |
DATE OF SENTENCE: | 16 August 2022 | |
CASE MAY BE CITED AS: | DPP v Moore & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1345 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery – Summary offences – Youthful offenders – Co-accused - s5(2H)(e) Sentencing Act – Substantial and compelling - Exceptional and rare - Psychological reports – Youth justice reports – Risk of deportation – Rehabilitation – Parity
Legislation Cited: Sentencing Act 1991 (Vic) - Migration Act 1958 (Cth) - Crimes Act 1958 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102 - Worboyes v The Queen [2021] VSCA 169 - R v Mills [1998] 4 VR 235 - Azzopardi v The Queen (2011) 35 VR 43
Sentence: Moore: 3-year Community Correction Order, $200 fine.
Tupai: 3-year Community Correction Order, $200 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett | Office of Public Prosecutions |
| For the Accused Moore For the Accused Tupai | Mr N. Goodfellow Mr W. Blake | Leanne Warren & Associates Melinda Walker |
HER HONOUR:
1Mr Moore and Mr Tupai you have each pleaded guilty on indictment to one charge of armed robbery, and that is contrary to s75A of the Crimes Act 1958.
2Mr Moore in your case you have also pleaded guilty on indictment to one charge of possession of cannabis. You have also agreed to two summary related offences being dealt with in this proceeding and those are, Charge 9 possession of a prohibited weapon, which was a taser and Charge 10, which was possess prohibited weapon, it was a double-edged knife.
3Mr Tupai in your case you have agreed to four summary related offences being dealt with in this proceeding in addition to the armed robbery and you have pleaded guilty to Charge 9, which is unlicensed driving, Charge 10, which is careless driving, Charge 11, commit an indictable offence on bail and Charge 13, which is contravene a conduct condition of bail.
Circumstances of offending
4The agreed factual basis of the offending is set out in the summary of prosecution opening dated 4 January 2022. This document was tendered on the plea and marked as Exhibit A. I am not going to go through that in chapter and verse, but I will just give a brief summary of the circumstances.
5Your offending occurred on 8 February 2021 and you were both 19 years old at the time. You are both now 20 and you are soon to turn 21.
6At approximately 7.45 pm on 8 February 2021 one of your co-offenders, Dominic Collier,[1] entered BWS liquor store in Airport West. Mr Tupai, you were with Mr Collier and you remained outside wearing a black balaclava. Mr Collier selected a bottle of Substation 41 Rum and a bottle of Old Virgin Whiskey, then ran outside of the store without paying. Mr Tupai you and Mr Collier proceeded to run toward the tram stop on Matthews Avenue and you were both photographed by a witness carrying bottles into the tram.
[1] A pseudonym.
7
At approximately 9.30 pm on the same day you arrived at McDonald's on Keilor Road in Essendon. You were in the company of Collier, Molly Betts,[2]
Jordan Innis,[3] and Mr Moore you were also present at this time. Betts was observed on CCTV to be in possession of a dark handbag.
[2] A pseudonym.
[3] A pseudonym.
8The victim had been communicating with Betts via social media in the days leading up to this incident. On the night, he received a message from her requesting that she be picked up 100 metres away from McDonald's. At around 9.35 pm, Betts was seen having a discussion with you, Mr Moore and you were seen to gesture with your hands in the direction of LT Thompson Reserve. Shortly after, Betts left and walked towards Keilor Road.
9You were both present with Collier and Innis at that time and all then moved towards McCracken Street in Essendon. At this time, Collier was riding a pink or red scooter that had originally been ridden by Betts.
10Betts got into the victim’s vehicle and requested that he drive her to Queen Street in Essendon to look for a handbag which she claimed to have lost. The handbag was last seen in your possession Mr Tupai, when you were leaving McDonald's. When they arrived at Queen Street, Betts left the car to find her handbag and the victim remained in the car.
11
Betts walked to the centre of the reserve area. She flashed her mobile phone torch to both of you, Collier and Innis were also waiting there. You and your
co-offenders then walked out from behind the bushes toward the victim's vehicle. Betts returned to the vehicle and requested the victim assist her to find her handbag.
12When the victim left the vehicle, he was assaulted. Collier demanded he 'strip or be sliced up' at the time, and Collier had a machete with him. You both together with your co-offenders robbed the victim of a 2014 Hyundai i30, a vehicle registered 1DK 8UE, an Apple iPhone 11 Promax mobile phone, black and white Lacoste sandals, a lanyard containing keys to a 2014 Hyundai i30 care, registered 1DK 8UE and keys to another Hyundai i30 registration 1QN 4DG, and his wallet, which contained cards in his name. That is Charge 1, armed robbery.
13It is unclear on the evidence precisely what role each of you took, however by your plea you have accepted that you were there and that you were involved in the offending.
14All five of you then got into the victim's car. At 2.36 am a witness was driving his garbage truck south on Pascoe Vale Road. He made a right-hand turn onto the Western Ring Road and the Hyundai i30 sedan belonging to the victim, that was being driven by you Mr Tupai, has collided with the left side of his truck. Photographs taken at the collision scene depict you wearing the same clothes as observed on the CCTV from the evening before. At 3.54 am you, Mr Tupai sent a message to a contact in your phone identified as 'Wifey' and you indicated you were at Broady Shopping Centre.
Arrest and procedural history
15Mr Tupai, on 19 February 2021 at approximately 8 am police members attended your home and executed a search warrant. You were arrested in the presence of your parents. A search was conducted but no clothing was located. Your phone was seized and messages to your mother and a contact identified as 'Wifey' were located.
16During your interview you exercised your right to silence, except when questioned about the balaclava that had been located. You stated the balaclava belonged to a mate and that you had worn it before.
17Mr Moore on 24 February 2021 at approximately 8 am police members attended your home address in Broadmeadows and executed a search warrant. You were arrested in the presence of your father. A search was conducted, and clothing was seized along with a machete, double-edged knife, taser and a small quantity of cannabis. And that is Charge 2, possession of a drug of dependence and also those are the related summary offences Charges 9 and 10 to which you have pleaded guilty. Two mobile phones and clothing was also seized.
18Mr Moore your phone was downloaded and short videos from inside the stolen vehicle on the night of the incident were located. There were also photographs of three co-accused Mr Tupai, Collier and Innis taken on the day of the incident, all of you were wearing clothing that was worn during the incident.
19During your interview with police Mr Moore you exercised your right to silence.
Nature and gravity of offending
20The offence of armed robbery is serious, as evidenced by the 25 year maximum penalty. The armed robbery you both took part in was aggravated because you were with three other co-offenders, and this fact elevates your offending to a category 2 offence pursuant to the Sentencing Act 1991.[4] A category 2 offence must usually be punished by a sentence of imprisonment other than a sentence of imprisonment combined with a Community Correction Order.
[4] (Vic).
21
There are certain exceptions provided in the Sentencing Act pursuant to
s5(2H)(a)-(e). Each of your counsel rely on the exception contained in s5(2H)(e), in that they submit there are substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 of Part 3 of the Sentencing Act, that is, that justify me not imposing a sentence of imprisonment.
22
I accept that the planning of the armed robbery was limited, occurring on the night not long before the offending took place. You had both consumed a significant amount of alcohol. The victim in this matter was going to pick up one of the
co-offenders Betts. The victim was lured to a park by Betts who told him she had lost her handbag. He was then set upon by four males in your group.
23It has been conceded by your respective counsel that you were both present and involved in the offending and I accept that you played a lesser role in the offending than your co-accused Mr Collier. You were aware however, that Collier was armed with a machete. The victim was ambushed and assaulted. You were both present when Mr Collier made demands for the victim's property and when several items were stolen including his car, two phones, some sandals, car keys and his wallet. You were also present when he was assaulted and this occurred in dark and in public.
24
I have no doubt it would have been a very frightening experience for
the victim and not something he will easily forget.
25Mr Tupai you drove the stolen vehicle away from the scene. You had no licence at the time, and you drove carelessly in that you collided with a garbage truck. You committed these offences whilst you were on bail and whilst you were supposed to be home subject to a curfew. These facts give rise to the related summary offences to which you have pleaded guilty.
26Mr Moore, according to the Youth Justice pre-sentence report, at the time of the offending, you were disengaged from education and employment, you were distant from your family, experiencing overwhelm and consuming excessive amounts of alcohol daily in the company of antisocial peers. You had been informed by your mother in the weeks before the offending that she had been diagnosed with cancer and would require extensive treatment.
27At this same time your father was experiencing ill health related to his liver and hip. As a result, you felt lost and scared and spent most of your time away from home. One week prior to the offending, a friend was stabbed to death. It is not surprising that you were overwhelmed by your life situation. You had no external supports at that time.
28On the actual day of the offences, you had consumed a significant amount of alcohol throughout the day both alone and in company with your co-offenders. You were aware of the plan to rob the victim and went along with the group.
29Mr Tupai you described your offending to the Corrections assessor as having occurred when you were on a drunk night out, when those you were with came up with an idea to set up the victim and take his car to get them home. The female of your group called the victim and when he arrived you all jumped him and took his car. You said that one of the boys had a machete and sliced the victim.
30After a short time, you decided to drive the car as you had a New Zealand learner's driver licence. The Youth Justice Court advice worker assessed that your offending was opportunistic and lacked sophistication. Your negative peer association, intoxication and lack of consequential thinking all contributed to your offending behaviour, in their view.
Personal circumstances
31In terms of personal circumstances, firstly you, Mr Moore.
32You are now 20 years old, and you are the youngest of three children. Your siblings being Jamie, an older brother, and Kayla, an older sister, with whom you maintain positive, albeit distant relationships. You were born and raised in Broadmeadows and at the time of your birth, your father was in prison, but when he was released, you were raised by both your mother and father. When you were four years old, they separated, owing to your father's intermittent periods spent in custody.
33After your father's departure from the family home, you remained with your mother for some time. You successfully completed your primary education at Westmeadows Primary School. During this time, you were formally diagnosed with ADHD, and commenced medicating with dexamphetamine. You stopped this medication when you were 12 years old, as it caused you to feel unwell.
34At 13 years old you left your mother's home and began residing with your father. Your teenage years appear to be volatile ones. Positively, you successfully completed Year 10, in part at Hume Central Secondary College, and thereafter at TAFE.
35Further, you spent brief periods of time working both at a bakery, and later in a labouring and fencing role. Notably, you played rugby at an elite level, although this imposed upon you an extensive physical toll, with you having suffered fractured hands, dislocated knees, concussions, broken arms, and a broken sternum. Since leaving formal education you have also completed a short course in carpentry, a course in traffic control, and have obtained your white card.
36You have been involved in two notable romantic relationships, both for approximately a year or more, though you are presently single. During your period of supervised bail, you separated from your long term partner Amelia. Amelia had been undergoing chemotherapy and you had both experienced a miscarriage earlier this year. The pressure of this matter and the uncertainty of the sentencing outcome contributed as a stressor in maintaining this relationship.
37Despite your relatively young age you have experienced significant difficulty and trauma. You report that you have witnessed some horrific things, namely the death of multiple friends since you turned 13. Only one week prior to the offending for which you are to be sentenced today as I have already mentioned, a friend of yours was stabbed to death. You have stated that these memories have always stayed with you.
38When you were only 15 you began consuming alcohol, and were by the time of your offending, typically drinking most days of the week. You were assessed by YSAS in March 2021 for drug and alcohol treatment but given your presentation at that time and your limited history of substance use, formal drug and alcohol treatment was not recommended. Your substance use has been monitored by Youth Justice in supervision sessions and it appears you have reduced your consumption of alcohol significantly and have had periods of complete abstinence. You have recognised that it is an unhealthy coping strategy and that it has negative impacts on your mood, decision making and ability to regulate.
39This brings me to a significant part of your life at present. Your mother, Melanie, is incredibly unwell. She suffers from cancer of the lips, throat and stomach, and has endured multiple highly invasive surgeries in the course of her treatment. The surgeries have been required to remove part of her tongue, lower jaw and lips. At present she ingests her food by way of a tube. To your very substantial credit, you have effectively stepped up, as the sole carer for your mum.
40Upon being bailed you began residing once more with your mother, and caring for her intensively, taking her to medical appointments and treatment as required, and helping her to eat. Your mother has detailed to this Court, in two unchallenged affidavits that there was no one else available to care for her.[5] For varying reasons she is unable to turn to your siblings, her own siblings, nor even her parents, who are themselves in mixed states of health, and with whom you have very positive relationships.
[5] Exhibits M4 and M5 on the Plea.
41Further to this your presence and assistance in your mother's life is integral to her mental and physical health. Your mother deposed that when you were remanded her health deteriorated and she lost in the order of 7 kilograms dropping to a dangerously low 43 kilos. The prospect of you being imprisoned causes her anxiety and depression which I accept negatively impacts on her health.
42
Since being on bail you have complied extensively with Youth Justice supervised bail and have accepted their support and guidance. You were referred to CVGT Australia Connect Program to assist you to obtain employment. Not only have you achieved this, having commenced with Lipa Paving Company in
December 2021, but you maintain this employment currently, usually working six days per week in what is a physically demanding job.
43Youth Justice also referred you to the Jesuit Social Services Youth Justice Community Support Service in September 2021. Since this time, you have worked with Ms Pia Tobias. Ms Tobias reports that you present as polite and engaging with a positive future outlook.[6] Further Ms Tobias notes that you have identified goals regarding employment and independence and have been active in trying to reach them. Since your release on bail, you have booked your leaner's permit test.
[6] Exhibit M3 on the Plea.
44And I understand that although you may not be able to continue with Ms Tobias into the future, that there are arrangements being made to transition you into other assistance, so that there will be ongoing case management for you.
45A report was prepared by Psychologist Gina Cidoni and tendered at your plea hearing and Ms Cidoni gave the following opinions:[7]
(a)One, your full-scale IQ fell within the average range.
(b)Two, you presented with symptoms consistent with ADHD and her assessment was that you met the diagnostic criteria for that condition according to the DSM-5. Further testing has since been conducted which did not result in such a diagnosis however, it confirmed that you still have symptoms and do require ongoing management and strategies in this regard, but you are not actually diagnosed with ADHD.
(c)Three, symptoms include being easily distracted, lacking focus, poor behavioural controls, hyperactivity, restlessness, emotional liability, disorganisation, time management concerns, forgetfulness, impulsivity, negative self-image, lack of motivation, anxiety, substance misuse, inattentiveness to instruction, inability to retain information and limitations in the ability to think rationally through the consequences of actions. ADHD is also associated with specific learning problems, problems in employment and instability in relationships.
(d)Four, because of the cognitive deficits, sufferers are predisposed towards poor impulse control, attention deficit and a desire for immediate gratification without the consideration of the consequences. There is a significant risk for antisocial outcomes, including criminal behaviour.
(e)Five, this diagnosis makes plain and contextualises your engagement in the offending.
(f)Six, alcohol consumption at the time would have played a role in causing disinhibition.
(g)Seven, because of your problems with self-regulation and impulsivity time in prison can potentially be more difficult for you than those without symptoms of ADHD.
[7] Exhibit M2 on the Plea.
46I accept the opinions of Ms Cidoni. I consider that limb 5 of Verdins is enlivened in that you are likely to find imprisonment more onerous because of your poor mental state.[8] Further, I regard the symptoms of ADHD are connected to your consumption of alcohol and that both underlie your offending behaviour on this night.
[8] R v Verdins & Ors [2007] VSCA 102.
Mr TUPAI
47You are now 20 years old. You are the first born of three children, having two brothers, Jayme and Rico. You were raised alongside them by both of your parents in New Zealand, until 2019, when as a family you immigrated to Australia. You found your schooling in New Zealand difficult, as you were unable to concentrate, you did not consider the subject matter to be useful, and you experienced bullying. You report that you were in several fights and played truant, and that you were suspended for a period in 2017 as a result of throwing a chair at a teacher.
48Up until the move to Australia you had enjoyed a positive relationship with your parents, particularly your mother. You left the family home at 16 years of age to cohabitate with your then girlfriend, who you remained with for some years. This relationship was not a positive one, and has been described as 'toxic', characterised by arguments, and a relationship in which you experienced physical abuse.
49Your family’s immigration occurred in the context of your father's work as a prison officer, and threats he experienced from local gangs. Upon arriving in Australia your relationship with your parents began to deteriorate. You found the transition to be a difficult one and you felt tricked into coming to Australia at age 17 after being told that you would only have to stay here for one month. Despite this, you successfully obtained a Year 12 education at Gladstone Park Secondary College, and thereafter commenced employment with a company that moved shipping containers. Regrettably this employment ceased in the wake of the COVID-19 pandemic.
50Part of your difficult transition to life in Australia resulted in your association with a peer group that was not a positive influence in your life. Over the last 12 months you have distanced yourself from these associates and have experienced no difficulty around drugs or drinking in that time, having last used cannabis and alcohol on New Year's Eve.
51Amidst the turmoil of your more recent years, you had never been diagnosed with any formal mental health disorder. Despite this, you recount having felt disappointed by life, feeling numb, feeling that you were useless, a disappointment, and a black sheep. Since you turned 14 you have attempted to take your life on nine separate occasions. Thankfully, despite this troubling history, you report that you have not engaged in self-harm outside of these incidents.
52Upon your consultation with Psychologist, Ms Sandra Cokorilo in January of this year, it was determined that you meet the criteria for social anxiety disorder, generalised anxiety disorder and major depressive disorder.[9] It was also noted that you exhibit symptoms consistent with both ADHD and bipolar disorder, and that these two issues should be both further investigated.
[9] Exhibit T2 on the Plea.
53It was Ms Cokorilo's view that your offending conduct could primarily be attributed to your increased susceptibility to peer influences arising from an interplay of your psychosocial immaturity and social anxiety disorder. Further, your acute intoxication with alcohol at the time of the offending, is thought to have further exacerbated your impulsivity and impaired your cognitions and judgement.
54
Further, Ms Cokorilo was of the opinion, that your biologically encoded psychosocial immaturity and associated vulnerability and social anxiety disorder is likely to have increased your susceptibility to peer influences. You indicated to
Ms Cokorilo at the time of the offending you were going with the flow.
55Furthermore, it was Ms Cokorilo's opinion that imprisonment would likely weigh more heavily on you than a person without your conditions. She noted that your symptoms would likely be exacerbated by the unpredictable, volatile and tense prison environment. In addition, your persistent suicidal ideation raises significant concerns, and she believes the heightened restrictive conditions of custody during COVID-19 could elevate the concerns relating the experience imprisonment would have. Deterioration of your mental health conditions in the absence of specific treatment is highly likely.
56I accept that given the opinions of Ms Cokorilo that both limbs 5 and 6 of Verdins are enlivened in your case. That is, you are likely to find imprisonment more onerous than someone without your mental health conditions and it is likely that these conditions will deteriorate if you are imprisoned. I also accept that there is a connection between your social anxiety disorder and your offending. There is a lesser connection between the general anxiety disorder and major depressive disorder and your offending, but those conditions both remain relevant.
57I consider there is also a connection between your mental health conditions and your alcohol consumption. When considered as a whole, I am satisfied that limb 1 of Verdins is enlivened such that your moral culpability should be reduced. Further, I am of the view that general deterrence should be somewhat moderated in your case.
58
As a result of the observations of Ms Cokorilo with respect to the possible diagnosis of ADHD and bipolar disorder, I obtained a Forensicare assessment.
Dr David Trainor confirmed that symptoms of ADHD were present but considered that further comprehensive testing would be required to achieve a firm diagnosis. Dr Trainor confirmed that you presented with symptoms consistent with a major depressive disorder and that you met the criteria for alcohol use disorder, in sustained remission. It was his view that there was no evidence of bipolar disorder or psychosis.
59In the 18 months since this incident, you have not re-offended. On the last occasion you were before the court I was told you have now gained employment. And I had noted down as a cleaner, but I think it is in property management. But in any event, you have obtained employment. And there was the possibility as well of a plumber's apprenticeship.
60You have reformed your drinking habits and there has been no other illicit substance abuse. A silver lining among the difficulties you have experienced and your troubled transition to Australia is your enduring relationship with your current partner, Olivia.
61
You have been in a relationship for some two years, and Olivia is currently pregnant and expecting your first child probably in a few weeks on
8 September 2022. In a letter she wrote to the court she describes that you have always done all you can to be there for her and your unborn baby. Not surprisingly she requires your support at this time.
Deportation
62
Mr Tupai, you are not an Australian citizen, and your special category class Ty subclass 444 visa is at risk of cancellation. You are therefore at risk of deportation. This would particularly so be you to receive a term of imprisonment of
12 months or more as this would trigger the mandatory cancellation provision of the Migration Act 1958 (Cth).
63I accept that this has caused you a great deal of distress and anxiety as all of your immediate and extended family are largely based in Australia. You have only minimal family contacts in New Zealand, and should you be deported you would have no family or any significant support network. Further, your partner and unborn baby are in Australia, and you would find it devastating to be forcibly separated from them and unable to take up your role as a supportive father. It would devastate you.
Plea of guilty
64I accept that each of you have pleaded guilty and that your pleas of guilty were entered at a relatively early stage.
65
There is a significant utilitarian benefit in your pleas of guilty. The victim did not have to give evidence at trial and relive what would have been a traumatic experience. You have also spared the court from what would have been a
time-consuming trial. In this sense you have both facilitated the course of justice.
66I accept that for each of you, your plea of guilty is also demonstrative of remorse and reveals acceptance of responsibility for your offending behaviour. You have both expressed remorse and victim empathy to the people who have assisted you and who have assessed you during these proceedings. I am satisfied that each of you have profound and genuine remorse.
67In addition, I note what the Court of Appeal said in the case of Worboyes v The Queen [2021] VSCA 169 at paragraph 39, and that is:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'
68In these circumstances, I propose to allow each of you a significant discount for your plea of guilty.
Youth
69At the time of the offending as I have said, you were both 19 years old. You are both now 20. Accordingly, you both fit within the definition of a young offender within the meaning of s3 of the Sentencing Act 1991 (Vic). The principles that apply to sentencing of young offenders therefore apply in each of your cases. These principles include:
(a) the youth of an offender should be a primary consideration for a sentencing court where the matter properly arises;[10]
(b) young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c) courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) incarceration can impair rather than enhance a young offender's prospects of rehabilitation.[11]
[10] R v Mills [1998] 4 VR 235.
[11] Azzopardi v The Queen (2011) 35 VR 43, 34.
Onerous conditions in custody due to covid
70I take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience.
71A recent document from the Department of Justice and Community Safety entitled 'Statement of Conditions – Protective quarantine, transfer quarantine, suspected case quarantine and confirmed case isolation', confirms that the effects of the pandemic for prisons remain serious, ongoing and fluid. This is particularly so in light of community outbreaks of COVID-19. I accept that the conditions in quarantine as described in that document would be particularly onerous for each of you with your mental health issues and Mr Moore, the concern that you would have for your mother in that instance. And Mr Tupai the concern you would have for your partner, were that to occur.
Section 5(2H)(e) factors
72So, I turn now to the s5(2H)(e) factors.[12] I can indicate to each of you that pursuant to s5(2H)(e) I find that there are a combination of substantial and compelling factors in each case that are exceptional and rare, the cumulative impact of which would justify departure from s5(2H). What that means is, that I am not going to send either of you to gaol.
[12] Sentencing Act 1991 (Vic), s5(2H)(e).
73I have given this very careful and considerable thought and I intend to detail the factors I have relied upon in each case. Some of these factors may be considered among those more commonly encountered by the courts. In each of your cases, it is the combination of factors and the addition of circumstances unique to each of you that has ultimately persuaded me to take this course.
Mr MOORE
74Mr Moore, the factors I have relied on in your case are:
· your sole and crucial role in your mother's care. It is my view that this is exceptional. Notwithstanding that you work and spend some time with your father I accept your mother's evidence that you are her sole carer and that you perform tasks, upon which, she is totally reliant for her survival;
· further and in addition to this I accept that if you were to be incarcerated your mother's physical and mental health would significantly deteriorate;
· your demonstrated rehabilitation as outlined in the Youth Justice pre-sentence and supervised bail progress reports. I consider this to be powerful evidence that can be distinguished from the mere prospects of rehabilitation that I am prohibited from considering as part of special reasons. So, what I have taken into account is not that you have prospects for rehabilitation, but that you have actually demonstrated that you have rehabilitated;
· I have taken into account the harsh conditions in custody as a result of the COVID-19 pandemic;
· your valuable plea of guilty entered during a time when the court is crippled by the backlog of cases caused by COVID-19 pandemic. I cannot take into account an early plea, but I can take into account a plea in those circumstances;
· your youth;
· your genuine and profound remorse;
· your lack of prior convictions; and
· I also consider that your role in the offending, as detailed in the agreed factual basis of the offending in the prosecution opening was limited such that I consider your moral culpability to be lower than that of Mr Collier who wielded the machete and made the demands.
75So, it is a combination of these factors that I have taken into account and in my view they satisfy the test that I am required to discharge to avoid sending you to gaol.
Mr TUPAI
76Mr Tupai, in your situation, I have taken into account:
· firstly, the very real risk that you will be vulnerable in custody because of your father's employment within the system. I consider this to be incredibly significant;
· I take into account your mental health conditions of social anxiety disorder, generalised anxiety disorder, major depressive disorder and their impact upon you and their connection to the offending;
· the risk of deportation;
· the harsh conditions in custody as a result of COVID-19 pandemic;
· your valuable plea of guilty entered during a time when the court is crippled by the backlog of cases caused by the COVID-19 pandemic;
· your youth;
· your genuine and profound remorse;
· your lack of prior convictions;
· in addition, I take into account your lack of subsequent offending. You have not offended since, and it has been 18 months;
· I also consider that your role in the offending, as detailed in the agreed factual basis of the offending in the prosecution opening, was limited such that I consider your moral culpability to be lower than that of Mr Collier who wielded the machete and made the demands.
77So, it's a combination of these factors that I have relied upon, to find special reasons in your case.
78Having found that special reasons apply I must also consider the relevant sentencing principles that must be applied in each of your cases. For offences of armed robbery a substantial custodial sentence will usually be required to satisfy the need for general deterrence, specific deterrence, community protection and just punishment.
79But for all of the reasons I have listed above in relation to s5(2H)(e) I consider circumstances do exist that justify the imposition of a penalty other than imprisonment in each of your cases.
80I also consider that each of you have good prospects for rehabilitation, if not excellent prospects for rehabilitation, and particularly Mr Moore, in what you have demonstrated.
81You both pleaded guilty early and there should also be a degree of parity with the penalty imposed on Mr Collier, which was a Community Correction Order. I just pause there, I should say that there were some obvious differences with Mr Collier’s situation, the main one being his undertaking to give evidence. However, I still believe that there is a place for parity in this situation.
82I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in each of your cases.
Disposition
83I had you both assessed for Youth Justice and for a Community Correction Order and you were assessed as suitable for both. But as I said, I am going to order that you each serve a Community Correction Order.
84So, if you would both stand.
85Mr Moore in relation to the charge of armed robbery only and Mr Tupai in relation to the charge of armed robbery and the offences of commit an indictable offence on bail and contravene a condition of bail, you are both convicted and you are placed on a Community Correction Order for a period of three years. The conditions of each corrections order include:
(a) 250 hours of unpaid community work over the three-year period;
(b) assessment and treatment for mental health, and that is for both of you;
(c) assessment and treatment for alcohol abuse. That is only you, Mr Tupai. And it may be that that's just an assessment and some education and then that is done with;
(d) you will be both be subject to supervision; and
(e) you will both be subject to judicial monitoring. So, I want to see you again and I want to see how you are going. The first date for judicial monitoring will be 14 October, 2022. Mr Moore your time will be 9.30 am and Mr Tupai you will be on at 10 am.
86I am going to offset 100 hours of community work against the treatment. So, what that means is if you do 100 hours of counselling, that will be taken away from the community work I have ordered. So rather than doing 250 hours, you could reduce it down to 150 hours, if you do the treatment. I have done that because I want it to be a motivation to you to engage in treatment. And that is probably more directed at you Mr Tupai, as opposed to you Mr Moore, because you have already engaged as I have said.
87
In addition to the conditions that I have imposed, there are standard conditions that you must comply with. The first and foremost is that you are not to commit any offences punishable by imprisonment with the next three years. You need to report within two working days after your release to the nearest Corrections office.
Mr Moore it is Coolaroo Corrections for you and Mr Tupai it is Broadmeadows Corrections for you.
88You are required to advise your supervising Corrections officer of any change of address of where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer. You cannot leave the State of Victoria without their prior permission.
89Mr Moore and Mr Tupai, if you reoffend you will breach the order. If you do not comply with the conditions you will breach the order. If you breach the order you will come back to me and it may be, depending what has happened, that I have to re-sentence you for the charges. So, armed robbery for you Mr Moore, armed robbery and the bail offences for you Mr Tupai. So, I really do not want that to happen, and I am sure you do not either.
90I can only place you on a Corrections Order if you agree. So, firstly Mr Moore, do you understand what is involved in a Corrections Order?
91OFFENDER MOORE: Yes, Your Honour.
92HER HONOUR: And do you consent?
93OFFENDER MOORE: Yes.
94HER HONOUR: All right. Mr Tupai, do you understand what is involved in a Corrections Order?
95OFFENDER TUPAI: Yes, Your Honour.
96HER HONOUR: And do you consent?
97OFFENDER TUPAI: Yes.
98HER HONOUR: All right. I think that these orders will be difficult for each of you, they are significant orders, and they are meant to be. You have escaped imprisonment and I have made them harsh because of that. But I really hope that you can apply yourselves, and I really want both of you to succeed.
99All right, so in relation to the charge of possession of cannabis Mr Moore, it is a small amount, it was for your own use and in the circumstances, I am going to dismiss that charge without conviction. In relation to the two summary related offences of possession of prohibited weapons, the taser and the double-edged knife, I am going to impose a $200 fine with conviction. All right, so you will be able to make some arrangements to pay that off.
100Mr Tupai, in relation to the offence of careless driving, and the offence of unlicenced driving, I will impose a fine of $200 with conviction.
101Both of those fines are an aggregate. So it is not $200 on each, it is one fine of $200, it is an aggregate fine for each set of offences.
102Pursuant to s6AAA of the Sentencing Act if not for your plea of guilty I would have sentenced you to a total effective sentence of eight months' imprisonment, as well as a Community Correction Order in the same terms and conditions as I have imposed today.
103Now Ms Burnett I need to ask, there were some summary matters I understand that were transferred, that need to be withdrawn, is that correct?
104MS BURNETT: Sorry, Your Honour, I just missed the first half of that?
105HER HONOUR: There was some summary related offences that were transferred that were not proceeded with, that need to be withdrawn. Is that correct?
106MS BURNETT: Can I just confirm that, Your Honour?
107
HER HONOUR: Sure. And I understand there probably is a disposal or forfeiture order, and I'm not sure if I've received those, I probably have. But there would
be - - -
108MS BURNETT: I'll also confirm that Your Honour.
109HER HONOUR: All right. I expect that you'll want to get rid of the taser, the double-edged knife and the cannabis?
110MS BURNETT: Yes, I'll just check that Your Honour.
111HER HONOUR: All right. I'm not sure if you're still there Ms Burnett, we don't have those orders on file. I'm prepared to make them if you want to file them or get them over at some point. I imagine Mr Moore, you don't want your cannabis, your knife and your taser back?
112OFFENDER MOORE: No.
113HER HONOUR: All right, so what I might do Ms Burnett is - do you need me to stand down or will you be able to get those instructions fairly promptly?
114
MS BURNETT: I should be able to get those instructions fairly promptly
Your Honour.
115
HER HONOUR: All right, while you're doing that I'll just hand down the
Community Corrections Orders and both Mr Blake and Ms Stanley, you're welcome to approach your clients and explain them.
116HER HONOUR: I'll get you a copy once I sign it.
117MS STANLEY: Thank you, Your Honour.
118MR BLAKE: If any forfeiture orders are against Mr Tupai, I don't think that they will be opposed Your Honour.
119HER HONOUR: Yes, I don't think there are any, I don't think - there was - - -
120MR BLAKE: Just in relation to any items recovered.
121HER HONOUR: His mobile phone was seized. Has there been any discussion about whether to get that back, or has he got that back?
122MR BLAKE: I haven't received a forfeiture order, but unless it's in - - -
123HER HONOUR: No, here we go, we'll see what she says, yes.
124MS BURNETT: Sorry, Your Honour.
125HER HONOUR: That's all right.
126MS BURNETT: Sorry, Your Honour the link just dropped out. Your Honour in terms of the summary offences, in relation to Mr Moore, the unlawful assault and the assault in company need to be withdrawn.
127HER HONOUR: Yes. They'll be withdrawn and struck out.
128MS BURNETT: Thank you, Your Honour. And in relation to Mr Tupai, there's two unlawful assaults and one misconduct charge that need to be withdrawn.
129HER HONOUR: Those will be withdrawn as well, struck out. Thank you.
130MS BURNETT: Your Honour, I'm still checking the orders, can they be provided to Your Honour's associate if required.
131HER HONOUR: Sure, they can. The other thing, it just occurred to me that there were some items that were seized I'm not sure - you can't hear? Can you hear me now?
132MS BURNETT: Can hear again, thank you, Your Honour.
133HER HONOUR: All right. There were also some items such as, I think, phone and clothes and those type of things, but if you want to investigate that a bit more. If you need any orders to be made, just discuss it with the parties and if they're by consent they can easily be done, in chambers.
134MS BURNETT: Certainly, Your Honour, I'll do that.
135HER HONOUR: All right. So thank you everyone for attending and thank you for your patience. And I really hope that you do well Mr Moore and Mr Tupai, so we'll see how you're going when you come back in October, give it your best. All right. We'll adjourn.
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