Director of Public Prosecutions v Nepia
[2021] VCC 1097
•26 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01858
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILLY NEPIA |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 June 2021 | |
DATE OF SENTENCE: | 26 July 2021 | |
CASE MAY BE CITED AS: | DPP v Nepia | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1097 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of armed robbery, one charge of aggravated burglary and one charge of theft, as well as one summary charge of failing to comply with a curfew under the Public Health and Wellbeing Act – offending in the context of confusion caused by recent HIV diagnosis and troubled commencement with medication regime – time in custody prior to release on bail very onerous due to mandatory isolation for first 14 days’ on remand and two hospital admissions whilst in custody – appropriate case for mercy – assessed as being a low risk of reoffending – application of Verdins principles.
Cases Cited:R v Verdins [2007] 16 VR 269
Sentence: Total effective sentence of 68 days’ imprisonment, with two Community Correction Orders (to run concurrently) for 3 years with conditions of supervision, assessment and treatment for drug, alcohol and mental health and to complete 50 hours of unpaid community work.
s.6AAA: 3 years’ imprisonment with a non-parole period of 18 months on Charges 1, 2 and 3.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Raimondo | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M Brogden | Ann Valos Criminal Law |
HER HONOUR:
1Billy Nepia, you have pleaded guilty to one charge of armed robbery which carries a maximum penalty of 25 years’ imprisonment, one charge of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment and one charge of theft which carries a maximum penalty of 10 years’ imprisonment. In addition, you have consented to a summary charge of failing to comply with a curfew direction pursuant to Stage 4 restrictions under the Public Health and Wellbeing Act being transferred for hearing to the County Court. You have pleaded guilty to that charge which carries a maximum penalty of 120 penalty units.
2The circumstances of your offending are summarised in the prosecution opening Exhibit “A”.
3The circumstances relating to Charge 1, armed robbery, were as follows. You had very recently come to reside in Room 227 at Rydges Hotel at 35-37 Fitzroy Street in St Kilda. At approximately 12.45am on 25 September 2020 you left the hotel and walked some 200 metres to the 7Eleven store at 75 Fitzroy Street, where Mr Ekbote was working alone and standing behind the front counter. You approached him and pulled out a box cutter and demanded that he open the cash register and give you money. He initially declined and you stated, “I will slit you. Give me the money.” Mr Ekbote then opened the register. You jumped onto the counter and removed several $10 and $20 notes and then demanded more money, as well as cigarettes. Mr Ekbote handed over approximately another $50 in $1 or $2 coins and a packet of cigarettes and you then left the store.
4The circumstances relating to Charge 2, aggravated burglary, are as follows. Shortly after leaving the 7Eleven store, you walked for some four or five minutes and came to a one bedroom apartment, Unit 8 at 21 Eildon Road, St Kilda. The rear door was unlocked and Mrs Henderson, the 54 year old female resident, was at home asleep in her bedroom at the front of the property. She did not discover your crime until she woke up in the morning. Apparently, you had spent some time in her lounge room before you left her unit.
5The circumstances of Charge 3, theft, are that, when you left the unit of your victim on Charge 2, Mrs Henderson, you stole her Apple laptop and wireless keyboard, as well as a sheepskin. When your victim awoke in the morning she noticed three $20 notes and two cigarette butts and a cigarette lighter on the floor of the living room and a pair of scissors and sunglasses on her couch.
6Your sister, Renee Henare, who lives in Craigieburn, was contacted by you later on the morning of 25 September, at about 10:30am. You asked her to pick you up from the Essendon Direct Factory Outlet. When she arrived there, you got into her car and began cutting your wrists with a box cutter. You disclosed to her that you had “held up” a 7Eleven and had broken into someone’s home, slept on their couch and then stolen some items. She took you back to her place where you had a bath and went to sleep. You told her you had stolen a laptop and keyboard. After consulting with other members of your family, she called Craigieburn police, as your family were worried that you might harm yourself. Police arrived that evening and arrested you. The following day, your sister assisted police, who had a search warrant, to find the clothes you had been wearing the previous day and, also, the property stolen from Mrs Henderson’s unit.
7The summary charge relates to the fact that, at the relevant time, there was a curfew in place under Stage 4 restrictions relating to the COVID pandemic, which you had breached by leaving the hotel where you were residing at 12.45am.
8You are presently aged 37 years having been born on 6 April 1984. You are single and have no children. Your parents live in New Zealand. Your order sister, Mrs Henare, lives in Craigieburn and your younger brother lives in Frankston. You come before the Court with no prior criminal history.
9In a plea on your behalf, Mr Brogden told the Court that you were born in New Zealand but, in 2005, came to Australia, where you have lived ever since. It seems that you have a good work history but, in or about late July 2020, your life began to unravel with the shock of being told that you had been diagnosed as being HIV positive. Shortly prior to the offending you had been very unwell as an inpatient at Frankston Hospital. A discharge summary from the hospital dated 22 September 2020,[1] only three days prior to the offending, noted that you had been an inpatient for some two weeks as you had been admitted with pneumonia on the background of the newly diagnosed HIV infection. It records a history upon your admission that you had been feeling unwell for the past two or three weeks with a number of symptoms, including worsening shortness of breath on exertion, a productive cough, poor appetite, and headaches associated with photophobia. It noted that you had presented at the Emergency Department on 25 August with similar symptoms. It further noted that you had been suffering intermittent dizziness causing difficulty mobilising in the last three weeks and that it was thought this could be anxiety relating to the new HIV diagnosis.
[1]Exhibit “4”
10Mr Brogden stated that you had previously been living with your brother but, in July, after you had been diagnosed as HIV positive, your brother had stated that you could no longer live at his home, rendering you homeless. Apparently, after your discharge from Frankston Hospital, you contacted Housing Victoria and emergency accommodation was found for you at Rydges Hotel in Fitzroy Street for a period of two weeks. The discharge summary reveals that, upon leaving hospital, you had been given eight different medications which you were directed to take daily. Two of the medications were required to be taken twice daily, making a total of 10 tablets which you suddenly had to take each day. You instructed Mr Brogden that you were feeling so overwhelmed, anxious and alone that you overdosed on the medication and did not wake up for a couple of days. Mr Brogden stated that, when you did awake, you felt extremely unwell and felt you needed to go to hospital. It was in this context that you left Rydges Hotel, intending to go to the hospital. Indeed, a security guard on duty at the door of the hotel recalls you stating that you were leaving to go to hospital.[2]
[2]Statement of Mummal Arshad made to police on 9 October 2020, Depositions pages 35 to 36
11Your counsel stated that, upon leaving Rydges, you realised that you had no money and, in a state of confusion, you went to the 7Eleven store to try to get some money in order to go to hospital. After the armed robbery at the 7Eleven store you then wandered aimlessly around St Kilda for a short time until you entered a unit that somehow reminded you of a unit which had belonged to an aunt of yours. He stated that you curled up on the lounge inside the unit and went to sleep for a while and then left the unit with the stolen laptop, keyboard and sheepskin. You instructed Mr Brogden that you thought that you would need the laptop as you had no way of contacting anyone and maybe you could use it to contact your sister and also thought the sheepskin could protect you from the rain. You apparently asked someone to call an Uber for you and took it as far as Essendon and paid for it with the money you had stolen from the 7Eleven store. As previously mentioned, you managed to contact your sister who picked you up and took you to her home in Craigieburn.
12In a statement to police your sister, Ms Henare, described that when she arrived at the Direct Factory Outlet at Essendon at 11.30am on 25 September 2020. she saw you sitting down under an umbrella on a cream coloured sheepskin rug. She had not seen you since July 2020 and was very shocked because your appearance had deteriorated and you had lost a lot of weight. I have already referred to what she says occurred thereafter.
13After you were arrested, you were remanded in custody. The police apparently did not interview you as they thought that you might be at risk of having COVID-19. You were then taken to the Metropolitan Assessment Prison where you remained in isolation because of that concern. By 10.58am on 29 September, prison records noted that you were complaining of not feeling well, drooling, having difficulty walking from the bed to the trapdoor in the cell door, had a pulse rate of 130 and needed to be brought to the medical clinic via a wheelchair. Observations were taken and showed that your blood pressure was 123/73, you had reduced oxygen saturation at 69 per cent, a blood sugar level of 6.5 and an elevated temperature of 38.3 degrees Celsius. You were so unwell that an ambulance was called and, with its lights and sirens operating, you were taken to St Vincent’s Emergency Department in Victoria Parade, Fitzroy. There you were noted to be suffering dyspnea (shortness of breath) and hypoxia (decreased levels of oxygen). You were diagnosed with sepsis and pneumonia and required the administration of high levels of oxygen. You were admitted as an inpatient to the Intensive Care Unit. You were prescribed a combination of three antibiotics and oral Prednisolone, as well as other medications relating to your HIV positive status. It seems that you were transferred back to the Melbourne Assessment Prison on 7 October 2020,[3] but you apparently spent another couple of weeks in hospital in the St Augustine’s Unit at Ravenhall before you returned to the main prison population. You spent a total of 68 days in custody before ultimately being granted bail on 2 December 2020.
[3]Exhibit “3”
14Tendered at the plea hearing was a report dated 7 May 2021 of a psychological assessment of you conducted by Ms Alison Mynard, clinical psychologist, on 26 April 2021.[4] Ms Mynard noted much of the history to which I have previously referred. Of particular note was the history that she took concerning your shock about having been diagnosed with HIV and the complicating side effects of sweating, irregular toilet habits, weight loss, anxiety, cramps and feeling panicky, having to endure multiple injections and to take a great deal of medication during your initial hospital admission, and during which you lost a lot of weight and had no appetite.
[4]Exhibit “1”
15You gave Ms Mynard a history of distress prior to your offending concerning your family reaction to the HIV positive diagnosis. At a family dinner, your sister had loudly drawn attention to your HIV status and told you off for reaching for a slice of bread because you might contaminate others. Your brother, with whom you had been living, had told you that, because he has young children, he was worried about them catching HIV from you, and hence asked you to move out. You told her that you felt “very shut down” and suffered mood fluctuations and struggled to get through the days, with frequent thoughts of suicide and actual acts of self-harm prior to the offending, which involved cutting yourself.
16Ms Mynard stated that, at times during her assessment, you were quite tearful and reported extremely severe depression, severe stress levels and severe anxiety. She detailed those symptoms in her report. They included a feeling of low mood, such that life seemed meaningless or worthless, overreacting to situations, being agitated and finding it hard to wind down and relax, and worrying to the extent that you found it hard to control your thoughts. You had breathing difficulties, felt panic, trembled, had a racing heart and felt fearful. At times you felt unsteady, experienced a feeling of choking, had trembling hands, and felt flushed, sweaty, nervous and afraid of the worst happening.
17Ms Mynard diagnosed you as suffering an Adjustment Disorder (mixed anxiety, depression and disturbance of conduct).
18The history which Ms Mynard took of the period leading up to your offending involved you being discharged from hospital with two plastic bags full of medication, going to the hotel and feeling overwhelmed and very panicked. You told her that you overdosed on the medication with a cheap bottle of wine, feeling suicidal and not caring if you ever woke up again. You awoke three days later in a panic, feeling disoriented and confused, very anxious, short of breath and hyperventilating. You then became frantic. You described having tried to call your sister and brother, but no one had answered, and then you left the hotel intending to get an ambulance, but conceded that you were probably very confused and not thinking logically. You believed that you had asked someone to call for an ambulance, but no one came, and you wondered if you should catch a bus or taxi, although you had no money and imagined having to “do a runner” from the bus.
19You recalled seeing a 7Eleven store open and asking for money, and then getting the box cutter knife out and moving closer to the attendant, whom you described as freaking out. After getting some money, you ran away, came across an apartment complex that looked like an auntie’s house, and went upstairs and fell asleep on the couch. You believed that you may have woken up at about 4.45am and left, having taken the laptop, keyboard and a sheepskin rug, because somehow you thought you could contact your sister on the laptop and perhaps the sheepskin could protect you from the rain. When you woke up you were distressed about what you had done and, ultimately, met up with your sister and told her of your crimes. You told Ms Mynard that you had considered committing suicide by running in front of a truck.
20You stated that you had never been to prison before and, whilst in custody, you were very ill and believe that you almost died. You told her of your hospital admissions whilst in custody and reported that you were highly fearful that other inmates might discover that you were HIV positive.
21Ms Mynard noted that you had some underlying early childhood beliefs about feeling abandoned by your mother or being regarded as “second best” by her. She considered that this was an underlying vulnerability predisposing you to amplified negative reactions when you received your HIV positive diagnosis and were rejected by family members. She stated that, often, when there has been such a predisposition, serious issues such as suicidal ideation and psychological maladjustment can arise, as had been the case for you.
22You gave a history to Ms Mynard that, from age 18, you had engaged in periodic binge drinking of alcohol. Also, from 2013 you had commenced methylamphetamine use and this escalated by 2020 to you using approximately every three or four days, but you stated that it had never become a daily habit. You had also used cannabis on an irregular basis to help you sleep.
23Ms Mynard recorded that, after being released from custody on 2 December 2020, you have been living with your sister in Craigieburn and have been linked with Northern Hospital, where you are seen regularly to monitor medication for your medical condition and undergo treatment and education about it. You have also undertaken weekly drug and alcohol counselling which you apparently enjoy and are motivated to continue. I here interpolate that there is no evidence to suggest that you were under the influence of illicit drugs at the time of offending. Indeed you adamantly denied this in a recent assessment by the Office of Corrections.[5]
[5]Exhibit “C” page 5
24Ms Mynard stated that you were likely aware of the wrongfulness of your actions, but your desperation and panic made you not care about your behaviour, which was out of character for you. She stated that, although it is difficult to know exactly the physical and mental symptoms that you were experiencing, your hospitalisation soon thereafter for a period of three weeks indicated that you were quite ill and needed medical attention. She expressed the belief that:
“at the time of the offending, (you were) confused, panicked and overwhelmed. (Your) judgement was highly impaired and (your) reasoning skills were compromised. This behaviour was extremely out of character for (you) and it was evident that (your) mind was not in a normal state.”
25Ms Mynard went on to say that: “(You) were unable to make calm and rational decisions at the time and (you) were out of control of your emotions, overwhelmed”. It was her opinion that your mental state directly contributed to your offending behaviour.
26Ms Mynard had noted that you acknowledged that you were not a very assertive person and struggled to stand up for yourself. She considered that you had experienced a very difficult time whilst remanded in custody because of your mental health concerns and medical conditions. She considered that you would find imprisonment more difficult than a person without these conditions, and that imprisonment would have an adverse effect on your mental health.
27Ms Mynard stated that your prospects of improving your mental health and reduction of anxiety would most likely occur with treatment. She expressed the view that, with proper support around you, stability in your treatment and stable housing, your likelihood of re-offending is slim. She noted that you had expressed remorse, shame and regret for your behaviour, but would benefit from psychological counselling for a range of issues.
28I accept the argument of your counsel that there are a number of factors which, in combination, form a sufficient foundation for a reasonable inference that, at the time of offending, you were impaired in your ability to make calm and rational decisions, or to think clearly, such as to attract the operation of principles 1-4 in The Queen v Verdins.[6] These factors are:
(1)You had obviously been gravely unwell for a couple of weeks and had only just been discharged from Frankston Hospital on 22 September 2020 with a significant quantity of medication. In the context of you being very distressed by your HIV positive diagnosis and your family’s reaction to it, finding yourself homeless and baffled by the extensive regime of medication with which you left the hospital. Consistent with the submission that you were homeless in Victoria, the hospital records note an address in Seaview Downs, South Australia, and that you had “no Gp Details”. It is apparent that, when you left the hospital on 22 September 2020, you were not discharged into the supervisory care of any medical practitioner and the records note that there are no scheduled Outpatients appointments. It was only the day after you had been discharged that Dr Eugenie Pan added an addendum to your records that a GP should refer you to a community dietitian for follow up and that a referral was made to “PH ID (Infectious Diseases) Clinic in 3-4 weeks to contact pt (patient) prior to clinic and refer to appropriate ID clinic depending upon pt’s new home address (my emphasis)”[7]
I accept that you were totally alone and in a most invidious position in that you suffering from such anxiety that you became suicidal and overdosed on medication whilst at Rydges Hotel on 22/23 September 2020, and that you awoke from such overdose in a confused and panicked state. As I have already stated, the fact that you intended to leave Rydges Hotel for the purpose of going to hospital is supported by the statement of the security guard, Mr Arshad, who was on duty at the front of the hotel when you exited through the front doors.[8]
(2)Your behaviour in then subjecting Mr Ekbote to an armed robbery at the 7Eleven store was clearly very frightening for him and out of character for you. As commented by your counsel, Mr Ekbote’s statement is very short and unembroidered by detail, given the seriousness of a charge of armed robbery. However, he does note that you initially walked up to the counter and asked for money, and it was only when he said “no” that you produced the box cutter knife.[9] It must also have been very alarming for Mrs Henderson, who lived in the unit which was the subject of the aggravated burglary, to wake up later on the morning of 25 September, to find that someone had been in her home. However, I accept that your behaviour in having gone to sleep on her couch, and in leaving behind part of the proceeds of the armed robbery (three $20 notes), two cigarette butts and a pair of sunglasses, is bizarre and consistent with a confused mental state.[10]
(3)In the statement made by your sister to police, she indicated that you looked to be in a deteriorated state when she saw you at approximately 10.30am on 25 September 2020 and that, when you got in her car, you began slitting your wrists. She stated that you were bleeding a little bit and she formed the view that you had done this before as she could see some old injuries on your wrists.[11] This is consistent with a high degree of agitation and distress albeit that you were able to tell her that you had committed the crimes to which you have pleaded guilty.[12] I accept that she ultimately telephoned police after consulting with the rest of the family “because (she) was really worried about what (you) might do next especially hurting (yourself)”.[13]
(4)It seems to me that, quite apart from your mental state of anxiety and stress, it is likely that you had some physical symptoms associated with your illness at the time of offending. It was three days since you had been discharged from hospital and you had not complied with the instructions relating to the complex regime of medication prescribed for you. It is plain that, by the morning of 29 September 2020, you were gravely unwell and suffering sepsis and pneumonia, each of which conditions is likely to have taken some time to develop and may well have contributed to some mental confusion.
[6](2007) 16 VR 269
[7]Exhibit “4”
[8]Statement of Mummal Arshad, depositions page 35
[9]Statement of Balraj Ekbote, depositions page 22
[10]Statement of Elizabeth Henderson, depositions page 65-66
[11] Statement of Renee Henare, depositions pp 84-85, paragraphs 7-10.
[12]Statement of Renee Henare, depositions page 84-85
[13]Ibid, depositions page 86
29All of these matters in combination cause me to conclude that your capacity to reason in a calm and rational manner was most likely impaired at the time of committing these offences. The prosecutor, Mr Raimondo, notwithstanding paragraph 9 of his written submissions,[14] ultimately conceded that this was a conclusion open to the Court on the material put before it. I consider that the matters to which I have referred operate to reduce your moral culpability for this very serious offending and the extent of the emphasis that otherwise would be placed upon denunciation of your conduct and just punishment. I also consider that they moderate the weight to be given to both general and specific deterrence and should impact upon the kind of sentence to be imposed.
[14]Prosecution submissions on sentence dated 25 May 2021 “MFI-A”
30In addition, I have no hesitation in concluding, as the prosecution concedes, that your time in custody on remand prior to being given bail was very onerous indeed. Not only were you gravely physically unwell, but you suffered acute anxiety related to the fact that you had never before been in prison and were very anxious about that fact. This was not only because you were totally unfamiliar with the prison environment, but also because you were required to remain in isolation out of concern that you may have COVID-19. This must have been very frightening for you, in combination with the mental anxiety and distress which you were suffering, your concern about whether others at the prison would discover that you were HIV positive, and your seriously deteriorating state of physical ill-health. The fact that you spent approximately 3 weeks of the 68 days on remand as a hospital inpatient is, in itself, an indication of the onerous nature of that period.
31I accept that both your physical and mental health are factors which would cause you to find a term of imprisonment more burdensome than others who do not have your conditions. I accept Ms Mynard’s opinion that your mental health may well deteriorate in custody, particularly given your unassertive nature, your lack of ability to stand up for yourself, your underlying anxiety and depression, and your lack of familiarity with the prison environment. Accordingly, limbs 5 and 6 of Verdins’ case have application in sentencing you.
32Mr Nepia, you should be in no doubt as to the gravity of your offending. Unhappily it is all too common for armed robberies to be committed upon “soft targets” like your victim, Mr Ekbote (Charge 1), who was working alone at night in a convenience store, simply doing his best to earn a living. As has been correctly submitted by the prosecutor, Mr Raimondo, such people are extremely vulnerable and the Court of Appeal has made it plain that a stern sentence is usually warranted for this very serious crime. The seriousness of the offence of armed robbery is illustrated by the fact that a maximum penalty of 25 years’ imprisonment has been assigned to it by the Parliament of Victoria.
33The impact upon Mr Ekbote is very graphically illustrated by his Victim Impact Statement made on 23 March 2021 (Exhibit “B”). Prior to your offending, he was working full-time and had planned to undertake some study in order to improve his vocational prospects. He had described in his statement to police that your offending made him scared and shaken, and he thought that you were going to cut him with the knife. In his Victim Impact Statement, he describes the aftermath of your offending. He does not feel safe, suffers stress and depression, and does not sleep well. He now finds that he is only able to work two or three days a week, and this has impacted adversely upon him financially as he struggles to pay bills. He finds it hard to imagine how he will ever be able to afford to pay the cost of courses which he had planned to study. He no longer goes to the gym, which he used to do regularly, and cannot afford to spend money on a social life as he used to do. He feels generally fearful and frustrated. All of these consequences are foreseeable consequences of the armed robbery which you committed.
34Similarly, Charge 2, the charge of aggravated burglary, that is trespassing into someone’s home intending to steal when a person is present in that home, is a serious offence, also with a maximum penalty of 25 years’ imprisonment. A person’s home is supposed to be a place where they feel secure and will not have their privacy invaded. Although there is no Victim Impact Statement from Henderson, whose unit you invaded, it would be frightening and unsettling for any woman who was alone and asleep in her own unit at night, to awake the next morning to find obvious signs that someone had been in her living room. Such a violation of the sanctity of someone’s home can leave victims feeling very vulnerable in a space where they should feel comfortable and safe. In addition to the awful realisation that an intruder had apparently made himself at home on her couch, it must have been distressing for Mrs Henderson to find that she was missing her laptop and keyboard and sheepskin. It is fortunate that she soon tracked their whereabouts by using her phone to trace her laptop to the residence of your sister in Craigieburn by using the “Find my iPhone” application on her mobile phone. It must have been a relief to her to have her property returned, particularly the laptop which is a device upon which so many people rely to store important information and to communicate with others.
35Generally speaking, in sentencing for the serious and prevalent offences of armed robbery and aggravated burglary, a court must strongly denounce the offending conduct and place emphasis upon general deterrence and just punishment. The principle of general deterrence requires a court to send a message to the community by way of the sentence imposed on you, to let those in the community who are minded to commit armed robberies and aggravated burglaries, that it will not be worth their while as they will meet with appropriate punishment. Having said that, I note that both of these offences lack sophistication or preplanning as well as many of the aggravating features that often accompany such offending, like the presence of disguises, the gratuitous infliction of physical injuries or damage, or the protraction of the ordeals of victims for lengthy periods. This was bizarre offending which was at odds with your good character and occurred over a relatively short period of time due to your impaired judgement following your overdose on medication associated with depression, anxiety and despair following your physical illness flowing from your recently diagnosed HIV status and your isolation from family members. As I have already stated, I regard your moral culpability as reduced such as to moderate the emphasis that would generally be placed upon the principles to which I have referred.
36Although the prosecution acknowledged that a combination sentence of imprisonment and a Community Correction Order was within range, it would be unusual to have a combination sentence for these serious crimes which involved a term of imprisonment of only 68 days. However, I do regard yours as an unusual case and the plight in which you found yourself after being discharged from Frankston Hospital on 22 December 2020 causes the Court to have some sympathy for you notwithstanding your grave offending. For this reason, I consider it appropriate to extend mercy in sentencing you.
37You come before the court aged 37 years, having had no prior contact whatsoever with the criminal justice system. You were born in New Zealand to a law abiding family. Your parents remain in New Zealand, and you are still in contact with them.
38You came to Australia in 2005 to pursue work opportunities. Initially, you worked as a hairdresser in South Australia for some three or four years, until a client of the hairdressing salon approached you to work as a manager in her cleaning business A reference was tendered from Carolyn Lawrie of ESS Support Services Worldwide in Roxbury Downs, South Australia.[15] She stated that she has known you for several years as your co-worker and your direct supervisor, and that you were always polite and well-mannered, and no one who worked with you would be able to say a bad word against you. She described your offending behaviour as “a completely uncharacteristic aberration and one which I believe he sincerely and completely regrets”. She expressed her understanding that the offending occurred in the context of your health issues which had made you extremely sick, and your mental health had suffered with little support from your family or friends.
[15]Reference dated 27 May 2021, part of Exhibit “5”
39After working in South Australia, it seems that you obtained work in Western Australia for a cleaning and catering company which services the mining industry. Between 2011 and 2019, you worked for this company in remote areas in both South Australia and Western Australia, carrying out multiple roles including cleaning, kitchen duties, bartending and being a relief manager. A reference was tendered from Mary Jane Howard of Onslow in Western Australia, who is the supervisor for a company called “Keep it Clean/Bustox”.[16] She stated that she has known you from early 2007 as a work colleague for a South Australian company where you were trained in a manager’s role. She describes you as being very hardworking with exceptional public relations skills and a happy demeanour. She stated that you took pride in your work and were an asset to the company because of your varied skills. Ms Howard now runs her own cleaning company in Western Australia and states in her letter that she has offered you full-time employment and accommodation in Western Australia effective immediately.
[16]Reference dated 19 May 2021, part of Exhibit “5”
40It is apparent that, after being released from custody on bail, you became employed as a bartender at the Highlands Hotel in Craigieburn from 11 January 2021 to 14 March 2021. A reference from that business authored by Nalina Paranamanna dated 25 May 2021 states that during that time you rendered good service to the hotel as a self-motivated person.[17] Your counsel stated that the Highlands Hotel was unable to keep you in employment following the restrictions imposed as a result of the COVID-19 pandemic and, since that time, you had been living with your sister in Craigieburn, but are dependent on her largesse and a small amount of money which your mother sends you each week from New Zealand.
[17]Exhibit “6”
41In the light of my perception that you needed significant support in relation to your physical and mental health issues, I adjourned the matter and sought an extended assessment from the Office of Corrections as to your suitability for a Community Correction Order.
42In response to the Court’s request, an Extended Presentence Assessment-outcome Report was prepared. It is co-authored by Rita Eyar and Chris Giampitro of Broadmeadows Community Correctional Services dated 23 June 2021 (Exhibit “C”). The report stated that you were polite and forthcoming with information. It details the context of your offending to which I have referred in these sentencing remarks. The authors of the report recorded that you had some history of alcohol and methylamphetamine abuse, but assessed you as being at low risk of general offending and having a largely pro-social lifestyle, noting a generally good relationship with your family albeit that relationships deteriorated because of your offending, which has caused your family to be disappointed and think that you are a disgrace. The report states that, since being bailed, you have lived with your sister. However, you described the living arrangements as less than ideal as she has a husband and two children and you feel like you are treated like a child by her, although you rely upon her and are grateful for her support.
43The report noted that you had been employed for some 10 years prior to coming to Melbourne to visit your siblings in 2020 and, then, the state of emergency was declared due to the global pandemic. It mentioned the offer of employment in Western Australia to which I have referred and that you are keen to take up such offer as you are not receiving any government support payments and only receiving $80 per week which comes from your mother in New Zealand.
44The report stated that you are suitable for a Community Correction Order. It recommended an assessment and treatment condition relating to drug and alcohol abuse, as well as a condition for mental health assessment and treatment. The authors did not consider that you required supervision and expressed concern about a Community Correction Order with an unpaid community work component as it would impede you taking up the offer of employment available to you in Western Australia, given that a Community Correction Order involving a condition of unpaid community work cannot be transferred interstate. The report noted your precarious financial situation and considered that, although your family were supporting you for the moment, a delay in your moving to take up interstate employment and to becoming financially independent may impact adversely upon the support available to you at the present time.
45In arriving at the sentence which I intend to impose I have taken into account your early pleas of guilty which I regard as truly remorseful, the very onerous period that you have already spent in custody which was your first contact with the criminal justice system, your former good character which includes a positive work ethic, and your vulnerable physical and psychological condition at the time of offending. I am mindful of the principle of totality, given that your offending occurred over a relatively short space of time in the early hours of 25 September 2020.
46I also take note that you have adhered to bail conditions which have included restrictions on your movement and a curfew which has required you not to leave your place of residence between 10:00pm and 6:00am. Further, you have engaged with Northern Health in order to become well acquainted with the consequences of your HIV status and its necessary treatment, as well as engaging in weekly drug and alcohol counselling.
47In all of the circumstances I consider that you are now in a much more stable physical and psychological state than at the time of offending and that you are genuinely appalled by what you have done. Thus I consider that there is less need for emphasis upon specific deterrence than might otherwise have been the case and, generally speaking, I regard your prospects of rehabilitation to be excellent and there to be a low risk of you reoffending.
48Although I consider that the unusual circumstances of your case are such that there is not now the same extent of concern that the community needs to be protected from you as at the time of offending, Charges 1 and 2 represent serious offences and I do consider it appropriate that they should attract a term of imprisonment albeit that I propose to make it that of time served (namely 68 days) together with a Community Correction Order. I do not agree with the authors of Exhibit “C” that supervision is not warranted. You seem to me to be a socially isolated person and it is in the interests of yourself and of the community that you have someone keeping an eye on whether your physical and mental health concerns are being appropriately monitored and that you do not lapse into maladaptive coping strategies by abusing illicit drugs and alcohol or harming yourself. Further, your convenience in wishing to work in Western Australia should not dominate the sentencing discretion. There is a balance to be struck between appropriate punishment for these serious crimes and your rehabilitation. In this context, I note that you did obtain work in Victoria earlier this year.
49I do consider that there should be some component of unpaid community work attached to the Community Correction Order. However, I also consider it appropriate that any time spent by way of treatment and rehabilitation should be credited towards the unpaid community work obligations.
50As far as the summary charge is concerned, I am satisfied that, when you left Rydges Hotel shortly prior to the offending, you did genuinely have the intention of going to a hospital for treatment which would have been an acceptable reason for leaving your residence under the then operative COVID‑19 pandemic restrictions, albeit that you very soon thereafter did in fact commit the crimes for which I must sentence you.
51I note that your pleas of guilty were indicated at the first committal mention on 21 December 2020, only three months after the offending occurred and at the very earliest opportunity. The matters proceeded by way of straight hand-up brief which facilitated the course of justice, saved the time and cost of a trial and spared witnesses having to give evidence. The utility of your pleas of guilty is added to by the fact that they were indicated and entered during the time that the capacity to run criminal trials in the State of Victoria has been severely disrupted due to the COVID‑19 pandemic. I have already referred to the fact that I regard your pleas of guilty as truly remorseful and you are thus entitled to the full benefit of a discount on the sentence which otherwise might have been imposed.
52On Charge 1, armed robbery, you are convicted and sentenced to be imprisoned for a period of 68 days together with a Community Correction Order for a period of 3 years.
53On Charge 2, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 68 days together with a Community Correction Order for a period of 3 years.
54I direct that the sentence imposed on Charge 2, both by way of imprisonment and Community Correction Order, be served totally concurrently with the sentence imposed on Charge 1.
55On Charge 3, theft, you are convicted and sentenced to be imprisoned for a period of 7 days. I direct that such sentence be served concurrently with the term of imprisonment imposed on both Charges 1 and 2.
56I declare a period of pre‑sentence detention of 68 days to be time reckoned as already served under the sentences imposed this day.
57On the charge of failing to comply with a direction or requirement to state at home during Stage 4 restrictions pursuant to s203 (Individual) of the Public Health and Wellbeing Act, without conviction you are discharged.
58The Community Correction Order which is part of the sentence on Charge 1 and on Charge 2 will have the same terms and conditions and, as I have said, each of the Community Correction Orders will be served concurrently.
59The terms of those orders are as follows:
(a) You must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment.
(ab) You must comply with any obligations or requirements prescribed by the Regulations.
(b) You must report to and receive visits from the Secretary during the period of the order.
(c) You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force.
(d) You must notify the Secretary of any change of address or employment within two clear working days after the change.
(e) You must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.
60In addition to those terms, the following conditions apply to each of the Community Correction Orders.
(1) That you undertake 50 hours of unpaid community work.
(2) That you undergo assessment and treatment for drug and alcohol abuse or dependency.
(3) That you undergo a mental health assessment and treatment.
(4) That you be supervised and monitored and managed as directed by the Secretary.
61Mr Nepia, I can only make these Community Correction Orders if you agree to them. You need to be aware that, if you breach either order, that, in itself, is an offence punishable by a maximum of 3 months’ imprisonment. Should that occur, you will be brought back before this Court for such breach. This may result in you being resentenced on the original offending to a further term of imprisonment. Do you understand that?
62OFFENDER: Yes, Your Honour.
63HER HONOUR: I will hand down the proposed orders so that your barrister can ensure that you understand the terms and conditions.
(The Court stood down briefly)
64HER HONOUR: Mr Nepia, is that your signature on each of these documents?
65OFFENDER: Yes, Your Honour.
66HER HONOUR: Do you acknowledge that you understand your obligations under these orders and consent to them being made by this court?
67OFFENDER: Yes, I do.
68HER HONOUR: Very well, I formally make the orders with the terms and conditions that I have previously articulated.
69Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty, the total effective sentence imposed on Charges 1, 2 and 3 would have been 3 years’ imprisonment with a non‑parole period of 18 months.
70On Charge 1, having been convicted of the offence of armed robbery the Court orders pursuant to s9(1) of the Control of Weapons Act 1990 that one orange and black box cutter be forfeited to the Crown.
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