Director of Public Prosecutions v Muagututia

[2013] VCC 1199

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00767

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETI MUAGUTUTIA

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2013
DATE OF SENTENCE:	23 August 2013
CASE MAY BE CITED AS:	DPP v. Muagututia
MEDIUM NEUTRAL CITATION:	[2013] VCC 1199

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N. Schmitz	Office of Public Prosecutions
For the Accused	Ms Z. Broughton	Balmer & Associates

HIS HONOUR:

1 Eti Muagututia, you have pleaded guilty to one charge of armed robbery contrary to s.75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment. You have also pleaded guilty to one charge of recklessly causing serious injury contrary to s.17 of the Crimes Act 1958 and the maximum penalty for that offence is 15 years' imprisonment.

2       You pleaded guilty at the committal mention and I have taken your early plea into account in your favour, in mitigation of penalty. 

3       You have admitted one prior court appearance on 30 July 2008 in the County Court at Melbourne where you were convicted of one charge of affray, two charges of recklessly causing serious injury and one charge of intentionally causing injury and sentenced to be imprisoned for 20 months, wholly suspended for two years, and a further six months' imprisonment to be served by way of an intensive correction order.  Your offending on that occasion was described by the sentencing judge as vicious, unprovoked and cowardly. 

4       A prosecution opening was read to the court and your offending in this case may be summarised as follows.

5       On 29 November 2012 at 3.30 am you were contacted by a friend, Hayden Csincsi, who told you he was in company with a friend of his, Mark Perry, who had just won $907 playing poker machines at the Lynbrook Hotel in Hampton Park.  Csincsi told you where he would park his car to enable you to carry out an armed robbery on Perry.

6       At approximately 4 am you approached Perry who was seated in Csincsi’s car in Cranbourne.  You were armed with a knife.  You forced him from his car and punched him in the face and demanded money from him.  Perry managed to escape but left his wallet and phone in the car and you took both of them.  You and Csincsi shared the money and thereafter purchased a quantity of methylamphetamine.  Csincsi was arrested on 23 December 2012 and denied acting in concert with you in the armed robbery.  You were arrested on 10 January 2013 and made full admissions to investigating police.

7       Following the completion of the record of interview you made two detailed witness statements to police, setting out the circumstances of your offending and the role played by Csincsi.  You will be called by the prosecution in Csincsi’s committal proceedings on 6 September 2013 and you gave evidence before me, undertaking to do so and acknowledging that you understand that you may be re-sentenced if you fail to give evidence as I will significantly moderate the sentence I impose by reason of your cooperation with investigation police and the Office of Public Prosecutions.

8       I also accept that you will serve a sentence that I impose upon you in protection, for this reason, and I have also taken the hardship that will follow from that in account in mitigation of sentence.  The evidence that you will give in the case of Csincsi will be important in the prosecution of him and as I have said I will significantly moderate your sentence for this reason. 

9       Nevertheless your offending was opportunistic and cowardly and the sentence that I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done.  I do, however, accept that you are remorseful for your offending.

10      I have not received a Victim Impact Statement from Mark Perry but it is clear that the offences would have had a traumatic affect upon him.  He suffered a four centimetre laceration to his leg and a broken jaw as a result of your attack upon him.

11      I now turn to your personal circumstances.  You were born in New Zealand on 28 May 1986 and are now aged 27.  You have recently married and your wife is expecting a child in February 2014.  Your parents are Samoan and you have recently learnt that you are adopted.  Your childhood and developmental years were spent in either New Zealand or Samoa.  Your mother is addicted to gambling and your father was abusive of you.  You left school at the age of 17 to assist in the support of your family and it is clear that your development has been disrupted as a result of the family difficulties you have experienced. 

12      I have received in evidence a report of Mr Ian Joblin, a consulting and forensic psychologist, detailing your background and psychological profile.  I accept that you have the capacity to rehabilitate yourself, that you are intellectually capable, but that you also require ongoing treatment and counselling for a polysubstance abuse disorder from which you suffer.

13      You have the support of the Mormon church in Dandenong and also the support of your wife and her family.  I accept that in all your circumstances your prospects of rehabilitation may be described as good.

14      In the result, the sentence of the court is as follows.   

15      On the charge of armed robbery you are convicted and sentenced to be imprisoned for one year and nine months.

16      On the charge of recklessly causing serious injury you are convicted and sentenced to be imprisoned for twelve months. 

17      I order that six months of the sentence on the charge of recklessly causing serious injury be served cumulatively on the sentence in respect of the charge of armed robbery. 

18      This makes for a total effective term of imprisonment of two years and three months. 

19      I order that you serve ten months before becoming eligible for parole.

20      I declare that you have served ten days by way of pre-sentence detention, not including today.

21      In a complex case involving cooperation with investigative authorities such as this, it is difficult to precisely calculate the s.6AAA statement but doing the best that I can, but for your plea of guilty I would have sentenced you to a term of imprisonment of three years and three months and imposed a non-parole period of 18 months. 

22      I have made the ancillary orders sought on behalf of the prosecution.

23      MS SCHMITZ:  As Your Honour pleases.

24      HIS HONOUR:  Thank you.  You can be seated.  We'll adjourn sine die.

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