Director of Public Prosecutions v Nimo

[2024] VCC 1944

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01070

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUKUSO NIMO

---

JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2024, 29 November 2024
DATE OF SENTENCE:	29 November 2024
CASE MAY BE CITED AS:	DPP v Nimo
MEDIUM NEUTRAL CITATION:	[2024] VCC 1944

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW - Sentencing

Catchwords:              conspiracy to commit burglary – theft – delay – sentence indication  

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                  Community Corrections Order of 14 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Coulson	Office of Public Prosecutions
For the Accused	Mr J. Barreiro	Condello Lawyers

HER HONOUR:

1Aukuso Nimo, you have pleaded guilty to one charge of conspiracy to commit burglary and one charge of theft.   

2Your plea of guilty followed a sentence indication hearing and you were arraigned on 14 November 2024.  I have taken into account the submissions and materials relied upon at both the sentence indication and today’s plea hearing.

3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.

Circumstances of the offending

4In summary, in November 2019 investigators from the Shepparton Crime Investigation Unit commenced ‘Taskforce Fryer’ and began utilizing listening devices, tracking devices and telecommunication intercepts, targeting the activities of your co-accused Hasan GENC.   

5In January 2020 a listening device and tracking device were installed in Mr Genc’s Toyota Land Cruiser and on 7 February 2020 his telephone was intercepted. Both devices were closely monitored by police which revealed you and Mr Genc conspiring to commit a burglary at Cleanaway, located on Industrial Drive, Sunshine.

Charge 1 – Conspiracy to commit burglary

6At 12.43pm on 22 January 2020 Mr Genc was seen by surveillance operatives associating with two unknown males, in a white Renault van, at a location on Commercial Road, Caroline Springs.  You remained in his vehicle at the time.   Mr Genc returned to his car and had a conversation with you which was captured on the listening device.  Mr Genc told you that these men, one of whom was referred to as ‘Java’, would attend Toyota tonight.  Java was identified by investigators as Java Sinisa.  

7On 23 January 2020, electronic monitoring in Mr Genc’s vehicle captured a conversation between you and him where you discussed details of the burglary the prosecution say you intended to commit at Cleanaway. You discussed a range of matters, as outlined in the prosecution opening, including which items you would steal, the need to remove GPS trackers on the trucks, your uncle having a big block of land where you could store items; you wanting to steal the robots and the value of some of the items.  Mr Genc said “this weekend we’ll do it”[1]

[1] Exhibits 1 and 2: track 95.

8It is the prosecution’s case that you and Mr Genc agreed to steal:

(a)   2 x robots (aqua cutters).

(b)   1 x high-vac (Vol Kingvac 8 x 4 or a Merc Guzzler Vac 8 x 4).

(c)   1 x container (hydro blast container (pump).

(d)   1 x ultra-high (hydro blast unit-container).

(e)   1 x "big" truck (Hino Tray Truck or Flat Deck).

(f)    Hoses (unknown quantity).

9You both debated whether the burglary should be committed at Aqua Prep or “Alex’s”. “Alex” is also referred to as “Lex” or Lexi”. Investigators identified Alex as Alex Tofae.

10On the same day, Mr Genc called Mr Tofae whilst in the vehicle and asked him a series of questions relating to the specific functions of the specialized equipment. They also discussed the layout of, and access to, the premises and the storage locations of equipment. Mr Genc said he only intended to steal “a bit” and that the commission date was “this week”.

11Mr Genc then spoke to you again and conveyed this information.  You discussed further matters, as outlined, including how many people you required to do the job and discussed seven boys being needed and what they’d do.  

12On 24 January 2020, Mr Genc travelled in his car with Mr Sinisa. At 1.10pm Mr Sinisa asked Mr Genc “when are we doing Cleanaway?” Mr Genc said he will set up the planning tonight and he hopes it will be on Sunday. Mr Sinisa commented that it is a long weekend and that everyone is going on holiday. They discussed who would be involved – “you me, Uso (Nimo), Jason, Michael” and the cost of rebranding the equipment they intended to steal. 

13Investigators identified the upcoming Sunday to be 26 January 2020 (Australia Day weekend) and the public holiday to be on Monday 27 January 2020.

14On 24 January 2020 you and Mr Genc had a conversation in Mr Genc’s car about what clothing was to be worn during the burglary (“dressed like normal – hat, beanie, this that”). Mr Genc said six people were required and that it would occur on Sunday (a long weekend).[2]

[2] Exhibits 1 and 2: track 133. 

15As a result of these conversations, Investigators made enquiries in relation to the company Cleanaway and identified it to be an industrial waste management service that utilized high powered specialized equipment. 

16Investigators spoke with the National General Manager Scott Russell who advised that Mr Tofae was employed at the Sunshine branch located at Industrial Drive Sunshine. Investigators also spoke to the Sunshine branch manager, Mark Baker, who detailed the specialized equipment and current security measures at the branch. Mr Baker provided a pricing document which identified the estimated cost of replacing the equipment (in brand new condition):

(a)   Aqua cutters (robots) valued at $250,000 each

(b)   High-vac (Vol Kingvac 8 x 4 or a Merc Guzzler Vac 8 x 4) valued at between $350,000 - $500,000.  

(c)   1 x container (hydro blast container (pump)) valued at $400,000

(d)   1 x ultra-high (hydro blast unit-container) valued at $400,000

(e)   1 x “big” truck (Hino Tray Truck or Flat Deck) value at $80,000.

17The exact value of the equipment is unknown.

18On 25 January 2020, Mr Genc called an unknown male in his car, advising them that he “had a mission on his plate” and that he would attend and collect him that night. 

19On this day investigators implemented a disruption strategy to prevent the execution of the burglary, which utilized Victoria Police Surveillance Operatives. Operatives observed Mr Genc pick you up in his car at 4.13pm and later attend the clubhouse in Thomastown, referred to in the prosecution opening. He remained there for a period, left, returned and then remained at his home between 4.30pm on 26 January and 4.00am on 27 January 2020.

20Investigators believe Mr Genc postponed the intended commission date of the burglary due to the clubhouse event.

21On 27 January 2020 you, Mr Genc and an unknown male drove to Mr Tofae’s address at Harness Court, Sydenham. On the drive, Mr Genc said “They just said there’s a towie there. I know who it is… fucking it’s easy. It’s in and out bro. It’s like alarm – you got the alarm, you got the key – everything – got the camera box, fuck it’s no brains”.

22At 6.00pm, the unknown male and Mr Tofae exit Mr Genc’s car and one of them said “see you tonight”.

23Investigators believed that you and Mr Genc intended to commit the burglary at Cleanaway on the night of 27 January 2020. Another disruption strategy was implemented to prevent its execution, including the deployment of Victoria Police members tasked to attend and remain in the vicinity of Industrial Drive Sunshine in a police vehicle. 

24At 10.22pm on 27 January 2020, inaudible males voices can be heard speaking outside of Mr Genc’s vehicle. Tracking data identified that Mr Genc was at his home address.

25At 10.30pm police observed a white van turn left on Fairbairn Road, Sunshine towards the marked police car packed on Industrial Drive, Sunshine. The driver of the white van conducted a U-turn and travelled east on Proximity Drive away from police. 

26Investigators obtained CCTV footage from Dawson’s Australia, at Fairbairn Road Sunshine, which determined that the white van observed by police was a 2015 white Renault Van and consistent with the white van seen by surveillance operatives on 22 January 2020 and on the CCTV at Deer Park Toyota.

27CCR data from Mr Genc’s phone identified Mr Genc to be using the Sunshine Exchange phone tower between 12.10 and 12.15am on 28 January 2020. 

28By 1.14am on 28 January 2020 Mr Genc had returned home and electronic monitoring of his car captured a person opening and closing the vehicle door and two males speaking inaudibly within close proximity of the car. CCR data indicates that Mr Genc stayed at his home address for the remainder of the day.

Charge 5 – Theft 

29On 1 February 2020, a white Mercedes Benz Vito Van, registration as noted in the opening, belonging to a known owner was parked on Le Cateau Street, Pasco Vale South. At 1.15am, the rear window of the van was smashed and a mini fridge, 5 packets of Winfield blue cigarettes and a pair of Ray Ban sunglasses were stolen. The incident was captured on CCTV which showed Mr Genc’s car travel past, minutes prior to the offending. 

30Mr Genc’s vehicle was at Le Cateau Street Pasco Vale South between 1.00am and 1.36am. At 1.36am you and unknown offenders returned to Mr Genc’s vehicle. Mr Genc asked why you took so long, and you said you had had difficulty breaking the backdoor. You advised Mr Genc that there were no valuables in the van, other than smokes.  You and Mr Genc travelled from Pascoe Vale South to the clubhouse and discussed the contents of the stolen fridge and who deserved to keep the cigarettes. You both refer to the amount of glass which was in your hood and on the back seat of the car.

31On 18 March 2020, you were arrested and interviewed at Heidelberg Police Station.  In summary, you admit to knowing Mr Genc, referring to him as ‘Huss’ and stated that you’d worked for his company pumping concrete, but otherwise denied any involvement in the offending.  

Gravity of offending

32The charges you have pleaded guilty to are serious, as indicated by the maximum penalty of 10 years on each.   

33The prosecution submit that offending concerned a plan to commit a burglary on a commercial or industrial business with valuable items.  It was only detected by way of an intensive police operation, targeted mostly at the activities of your co-accused Mr Genc.  There was detailed planning and discussion.  The chances of getting caught were high but there was discussion directed at how to try and avoid detection.  In cases of this nature, general deterrence is an important sentencing consideration.  

34Your Counsel submits that the objective gravity of your offending on charge 1 is at the lower end and relies on a range of factors, including: there is no evidence of your presence on the evening of 27-28 January 2020 when the burglary was apparently going to take place; the alleged conspiracy had ‘almost zero prospects of success’ bearing in mind the evidence of the Cleanaway employees as to the high level security in place around the compound; the GPS in most of the trucks; the heavy and cumbersome nature of the equipment which required training to move; and the possibility of a ‘call out at any stage, meaning a large amount of Cleanaway staff could have arrived and caught the alleged conspirators red handed’. Also, your counsel submits that although you were not arrested for some months later, there was no evidence of a further attempt at completing the conspiracy. 

35Citing the case of DPP v Fabriczy[3] your Counsel submits that conspiracy is an inchoate offence which deals not with acts themselves, but an agreement to commit them. An assessment of the objective seriousness of a conspiracy takes place with reference to the acts performed by the accused and their role in the alleged conspiracy.  He further submits, the value of the equipment is undetermined, the alleged conspiracy was ‘farfetched’, it was of ‘short duration, clumsy and unsophisticated.’  Further, your co-accused Mr Genc has an extensive criminal history and was much older. 

[3] [2010] VSCA 334.

36Overall, I accept that the conspiracy may have been fraught, as submitted by your Counsel, however I don’t accept the submission that it was ‘unsophisticated’ or ‘clumsy’.  While not all aspects to complete the intended crime were discussed, there was some planning and discussion as to how the burglary would be committed and the resources needed, as outlined in the prosecution opening, in which you were an enthusiastic participant.  

37I take into account the duration of the conspiracy, as charged, and its full content, along with the acts that you performed.  While the precise value of the equipment intended to be stolen was unknown, it clearly involved valuable items and I infer that your involvement was financially motivated.  

38I accept that you were not the principal offender, or the orchestrator, of this conspiracy.  Your co-accused was the target of this operation and was more actively involved in the planning and organization of what was intended.   I note that your co-accused’s case is listed for trial next year.

Plea of guilty

39As already noted, you entered a plea of guilty following a sentence indication.  While not a plea entered at the earliest opportunity, it does entitle you to an important sentencing discount.  Your plea of guilty has important utilitarian value and indicates your willingness to facilitate the course of justice and take responsibility for your offending.  I note that in your recent assessment with corrections you refer to having associated with negative peers at the time of the offending and that you regret having ‘now wasted two to three years going through the Court system’.  Your friend Mr Faalogo, who has known you for some 4 years, refers to the charges and that you are upset by them and ‘feel regretful’ for what you’ve done.  

Personal circumstances

40Your personal circumstances were outlined by your Counsel and further insights into your background are obtained from the various testimonials tendered on your behalf. 

41In brief, you only have one prior charge of driving unlicenced for which you received a without conviction adjourned undertaking on 7 January 2015.

42You are the youngest of four children. You were born in Samoa and moved to New Zealand as a young child. When you were five years old, you were taken into state care, where you were separated from your siblings and bounced between foster care houses for around five years. During that time, you had no contact with your parents or siblings.  Your father – in his letter - refers to this period of time and of your distress in being separated from the family.  

43In 2004, you were eventually reunited with your parents, but your mother passed away shortly thereafter. You moved to Australia at the age of 12, living first with your aunt before moving in with your father. Your home life was tumultuous, and you left at 13. Your father remarried and your relationship with your stepmother deteriorated, and you were mistreated. For example, you were often sent to school without any lunch or were made to walk the lengthy distance home in the rain. 

44On leaving, you were homeless for a period, living in abandoned properties and staying with friends. You had little family contact or support for much of your adolescence and adulthood.  More recently, you have reestablished contact with your father and also your siblings. 

45To your credit and despite your upbringing, you completed Year 11 at Victoria University Secondary College. You left school to support yourself financially. You have a very strong work history, including unloading containers, landscaping, concrete repair and at Aqua Prep. You did two years of a mechanic apprenticeship at Toyota but did not complete it as the apprentice wage was too low to support yourself. Since 2022, you have worked in labour hire, completing ad hoc jobs at construction sites.  

46You have a long-term partner, with whom you have lived with since 2017. You have a rental home in Pascoe Vale South. You live there with your partner and your 6-year-old son. In 2020, your partner was diagnosed with ovarian cancer. You are the main care provider, taking her to all her appointments.   In her letter your partner confirms that she was diagnosed with Stage 3 ovarian cancer in early 2020 and that she has undergone intense chemotherapy.  

47You no longer have any association with Mr Genc, your co-accused, and you have no other criminal associations. 

48I take into account your personal circumstances including the hardships that you have experienced as a child and young person, that are referred to in the material

Other mitigating factors

Delay

49As already noted, the offending occurred in early 2020.  You were interviewed on 18 March 2020 and not charged, inexplicably, until 24 May 2022.  It is not suggested that the delay is attributable to you. Thereafter, there were a number of procedural dates that followed and a contested committal between 22 and 23 June 2023.  You were then committed to trial and there have been a number of court hearings in this Court, including a case conference on 11 July 2024.  On 14 November 2024 you were arraigned and pleaded guilty.    

50I consider the delay in your case is an important factor that enlivens both relevant ‘limbs’ as outlined in the relevant authorities.[4]

[4] Tones v The Queen [2017] VSCA 118; R v Merrett, Piggot & Ferrari [2007] VSCA 1.

51The authorities make clear that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor. I accept that both the unfairness and rehabilitation limb are relevant in your case.  There has been uncertainty in outcome as you have had the matter hanging over your head for a substantial period of time.  As your partner states this matter has been ‘weighing heavily on [your] mind and caused stress’.  Also, while you have reoffended – I was told by your Counsel that you received a monetary penalty for using a carriage service to menace, in the context of a business dispute – I take into account that you have not continued to offend in the manner, or on the scale, alleged in this case.  Over the years, you have otherwise been a contributing member of the community, supporting your family. 

Prospects of rehabilitation

52In all the circumstances, I accept your Counsel’s submission that you have very good prospects of rehabilitation.  You are now 30 years of age and have no relevant prior criminal history.  You have a stable home life and a solid work history.  You are currently working casually as a general labourer and you are looking for more permanent work. I accept that you are otherwise of good character and that you are a committed father and dedicated to caring for your partner.  

53Your partner describes you as ‘hardworking, trustworthy, loving and giving.’  ‘Has always been a family man.  Always go out of his way to cater to everyone that he loves.’  Your friend Mr Aualii, who has known you for many years describes you as ‘a humble family man, with good Christian values, who protects and provides for his family.’  She also considers the offending to which you have pleaded guilty to be out of character. Your partner’s mother also refers to you as a thoughtful and kind young man, stating ‘his strong work ethic and unwavering dedication makes him a dependable provider for our family.’  

54Your friend Mr Faalogo speaks of your past challenges but how you have managed to remain strong and resilient.  He describes you as ‘dependable, trustworthy, generous and compassionate.’  Your friend Ms Vaega also speaks of you as a ‘true champion of family values and a beacon of positive energy’.  

55It is clear that you have the ongoing support of your family and friends.

Sentencing purposes

56The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. 

57I take into account the sentencing guidelines referred to in s5 of the Sentencing Act1991, where relevant in your case. I take into account the general landscape for sentencing in such matters.  I take into account the maximum penalties, along with the principles of proportionality, parsimony and totality.  

58I had you assessed for a community corrections order (‘CCO’) and you were assessed as suitable.

59Guided by the Court of Appeal in Boulton’s case, that the punitive, deterrent, denunciatory, and rehabilitative purposes of sentencing can be sufficiently achieved by the imposition of a CCO.[5]   I have taken into account the gravity of the offending, your circumstances, my assessment as to your prospects of rehabilitation and the substantial delay in the finalisation of your case.  

[5] Boulton v The Queen [2014] VSCA 342.

Sentence

60Synthesising all relevant factors, you are convicted and sentenced as follows:   

61A community corrections order of 14 months, with conditions:   

(a)   Supervision.

(b)   You must undertake and complete 140 hours community work – I offset 40 hours of work as against treatment condition.  

(c)   Programs to reduce reoffending.

62Pursuant to S.6AAA had you not entered a plea of guilty I would have imposed a combination sentence of 9 months imprisonment followed by a CCO.