Director of Public Prosecutions v Nona
[2023] VCC 54
•Friday 20 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01520; CR-22-01524
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN NONA & LELI PESAMINO MAILEI |
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JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Tuesday 6 December 2022 | |
DATE OF SENTENCE: | Friday 20 January 2023 | |
CASE MAY BE CITED AS: | DPP v NONA & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 54 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - SENTENCING
Legislation Cited: Crimes Act 1958 (Vic), s63A, s18, s465AAA; Control of Weapons Act
1990 (Vic), s5AB; Sentencing Act 1991 (Vic), s5, s3, s5(2H), s18, s6AAA
Cases Cited:Nguyen v The Queen (2010) A Crim R 464; Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102; DPP v Hodgson [2019] VSCA; R v Boland (2007) 17 VR 300; Au-Kau v R; Ofamooni v R [2018] VSCA 296; Judge v The Queen; Dix v The Queen [2021] VSCA 315; Roe v R (2021) VSCA 54; DPP v Azzopardi (2019) VCC 1406; DPP v Ghadami-Loran [2019] VCC 1146; DPP v Odisho [2021] VCC 325; Elmaghraby v R [2015] VCC 1914; Hanna & Ors v R [2014] VSCA 187; Ka Ming Chong v R [2022] VSCA 156; Le Huynh & Phu Huynh v R [2020] VSCA 222; Roe v R [2021] VSCA 54 and Stamper v R [2021] VSCA 323; Lowe v The Queen (1984) 154 CLR 606; DPP v Milson [2019] VSCA 55
Sentence: NONA – Total effective sentence of 4 years’ and 4 months’ imprisonment
with a non-parole period of 2 years and 10 months.
PESAMINO MAILEI – Total effective sentence of 3 years’ and 10 months’
imprisonment with a non-parole period of 2 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Caruso | Office of Public Prosecutions |
| For the Accused NONA | Ms S Buckley | Chester Metcalfe |
For the Accused | Mr J Lowy (plea) Mr T. Magazis | D & T Magazis & Associates |
HER HONOUR:
1Jonathan Nona, you have pleaded guilty to:
· 1 charge of kidnapping, which carries a maximum penalty of 25 years’ imprisonment;[1] and
· 1 charge of prohibited person possess imitation firearm, which carries a maximum penalty of 10 years’ imprisonment.[2]
[1]Contrary to Crimes Act 1958 (Vic), s63A
[2]Contrary to Control of Weapons Act 1990 (Vic), s5AB
2Leli Pesamino Mailei, you have pleaded guilty to:
· 1 charge of kidnapping, which carries a maximum penalty of 25 years’ imprisonment;[3]
· 1 charge of causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment;[4] and
· 1 related charge of fail to comply with a direction to assist by providing the passcode to your phone, which carries a maximum penalty of 2 years’ imprisonment.[5]
[3]Contrary to Crimes Act 1958 (Vic), s63A
[4]Ibid, s18
[5]Ibid, s465AAA
3You have both admitted your prior criminal histories.[6]
[6]Exhibits 2 & 3
Circumstances of Offending
4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 30 November 2022,[7] the accuracy of which you both accepted through your counsel.
[7]Exhibit 1
5The offending before the Court occurred on 11 March 2022 and was committed by the two of you and a co-offender, alleged by the prosecution to be Mr James Naitoko. Through your pleas of guilty you have both admitted your role in this offending, but Mr Naitoko has not.
6The victim and Mr Pesamino Mailei were known to each other. Mr Nona, you did not know the victim.
7Mr Pesamino Mailei, you agreed to meet with the victim at the Stables Shopping Centre in Mill Park. You, Mr Nona and Mr Naitoko drove to the shopping centre and parked in the car park. Mr Pesamino Mailei was driving, Mr Nona, you were in the front passenger seat and Mr Naitoko was in the rear driver’s side seat.
8The victim arrived soon after. He parked his car and came and sat in the rear passenger seat next to Mr Naitoko. The four of you began talking and the victim brought up the name of an associate and mentioned allegations that were being made about him. As the victim mentioned this, your alleged co-offender Mr Naitoko pulled out a Berretta or Glock metal handgun and pressed it into the victim’s ribs stating, 'Do you know who we are?'
9Mr Nona, you got out of the front passenger seat holding a sawn-off single barrel shot gun and pointed it at the victim through the open window, telling the victim to move over. The victim did as he was told. You sat next to him and pressed the shotgun into the victim’s knee while Mr Naitoko was still pressing his handgun into the victim’s ribs. This forms the basis of the charge of prohibited person possess imitation firearm.[8]
[8]Charge 2 on Indictment No. N10586089
10Mr Nona you then told Mr Pesamino Mailei to put up the windows of the car. You and Mr Naitoko then made demands for the victim to transfer his car to you while pointing your firearms at him. The victim pleaded for you, Mr Pesamino Mailei, to help him. You instead responded by shrugging your shoulders and stating that it was his own fault. CCTV footage depicts that you were all in Mr Pesamino Mailei’s car at the shopping centre between about 4.42 pm and 5.05 pm – some 23 minutes.
11Mr Nona, you then decided that the four of you were going to drive around in the victim’s car until he transferred the car into your name. Mr Naitoko and Mr Pesamino Mailei got of the car first, while you continued to point your firearm at the victim demanding that he get into his own car. This forms a further part of the basis of the charge of prohibited person possess imitation firearm.[9] The victim complied and he, you Mr Nona, you Mr Pesamino Mailei and your co-offender got into the victim’s car. Mr Nona, you and Mr Naitoko still had your firearms.
[9]Ibid
12Mr Nona, you continued to make demands of the victim and when he refused, Mr Pesamino Mailei, you punched the victim to the nose repeatedly stating ‘Mate we aren’t playing’. This is the subject of the intentionally cause injury charge.[10]
[10]Charge 2 on Indictment No. N10613070
13CCTV footage depicts that at 5.05 pm, Mr Naitoko began driving away with the victim still in the backseat. It is at this point that the kidnapping commences. At 5.09 pm, CCTV footage shows the victim’s car arriving at a 7-Eleven service station. Mr Pesamino Mailei, you got out of the car to fill it with fuel. While Mr Nona and Mr Naitoko were talking, the victim escaped and ran directly into the service station to get help from a staff member.
14Witnesses inside 7-Eleven heard the victim state ‘Please, please, please let me back, he is going to get me, and he is going to kill me’. The witnesses noticed blood on the victim’s face and clothing. Mr Pesamino Mailei, you followed the victim into the store and demanded that he return to the car. You grabbed him by the scruff of the neck and punched him to the jaw. You made continuous attempts to force the victim out of the store, but he refused and continued to plead for help. At one point the victim dropped to the ground screaming ‘You are going to shoot me if I go back with you’, to which you responded, ‘Keep talking and we will take you to a creek, you need to shut the fuck up if you know what is good for you’. Mr Pesamino Mailei, you eventually returned to the victims’ car and drove off, leaving the victim at 7-Eleven. You parked the car back at the Stables Shopping Centre.
15Some 5 minutes later, you returned to 7-Eleven in your car and remained inside it. You spoke to the victim who was with a 7-Eleven staff member, encouraging him to return to the car. The victim refused and you threw his keys back to him stating that his car was parked at the Stables.
Interviews & Further Investigation
16The 7-Eleven staff member drove the victim to the police station. He spoke to police while waiting for an ambulance. Police attended the Stables Shopping Centre and located the victim’s car. An analysis of the victim’s phone linked you Mr Pesamino Mailei to the offending. Finger print analysis of the victim’s car also linked you, Mr Nona to the offending.
17On 25 March, the victim attended the police station and identified you, Mr Nona, as the person who pointed the ‘shotty’ at him. Police did not recover a firearm as described by the victim.
18Mr Nona, you were arrested that day and were assessed by a Forensic Medical Officer and deemed unfit for interview. You were charged and remanded in custody.
19Mr Pesamino Mailei, on 29 March police executed a search warrant at your address. Your phone was seized and you were arrested and interviewed. Police made a request for you to provide your PIN to your phone and you refused. This is the subject of summary Charge 8 (failing to provide information on direction to assist).
20Mr Pesamino Mailei, you provided an essentially ‘no comment’ interview. However, in response to a question about why this happened, you said ‘he fucked up, that’s why’ and ‘he fucked up big time’. You also went on to say it ‘was all a big misunderstanding’.
21Call charge records on both of your phones were obtained and demonstrated that you were in the area of the offending at the relevant time.
Victim’s Injuries
22The victim attended a number of medical appointments in relation to the injuries caused by you Mr Pesamino Mailei. X-rays showed that the victim had a mildly depressed fracture to the nasal bone around the naval septum midline and tenderness to the bony and cartilaginous area of the nose. The victim was referred for plastic surgery.
Nature & Gravity of Offending
23Kidnapping is an inherently serious offence as reflected by the maximum penalty of 25 years’ imprisonment.[11] It is, by its very nature a violent and threatening offence. In this instance you took the law into your own hands and offended in company with imitation firearms against an unarmed person for no good reason, resulting in injury to him. Whilst your offending was spontaneous and opportunistic in nature, with no evidence of premeditation, Mr Nona and Mr Naitoko had weapons in their possession and were prepared to use them. The kidnapping occurred over brief duration, of no more than approximately 4 minutes and did not culminate in an ensuing period of false imprisonment. Whilst no victim impact statement was tendered, the victim told witnesses that he was in fear of his life.
[11]Nguyen v The Queen (2010) A Crim R 464, 468 [18]
24This was unsophisticated offending which occurred in broad daylight in locations covered by CCTV. You made no attempt to conceal your identity by way of masks, gloves or other and the victim knew you, Mr Pesamino Mailei.
25At the time of offending, Mr Nona, you were a prohibited person. The prosecution does not allege that the imitation firearm was capable of discharge or that it was loaded. However, the appearance, presence and use of the imitation firearms elevates the gravity of this offending. Those firearms were not located under the warrant executed following your arrests.
26Certainly, there are more serious examples of the crime of kidnapping. Nevertheless, due to the features I have described I regard this as a serious and concerning example of the crime of kidnapping and one that exceeds a low level example of such an offence. I likewise conclude that the charge of causing injury intentionally against Mr Pesamino Mailei is a concerning example of this type of offence, given the circumstances in which it took place.
27Mr Nona, you were a prohibited person at the time, and produced a weapon, taking active steps to threaten and terrorise your victim. The victim begged you Mr Pesamino Mailei to make them stop. Instead of doing so, you laughed and repeatedly assaulted him. You also pursued him after he escaped from the vehicle into the 7-Eleven and further assaulted and threatened him in an attempt to get him to return to the vehicle. The victim was defenceless. He thought the weapons were real and was in genuine fear for his life.
28You each carry high moral culpability for your actions. Mr Pesamino Mailei in light of your updated psychological assessment and the supplementary submissions, I will address any mitigation of your moral culpability below.
Respective Roles
29There is no clear architect in this offending. It occurred following a disagreement during a conversation in which you were both in a car together with Mr Naitoko and the victim. It was Mr Naitoko who first pulled out a firearm and stated 'do you know who we are?', threatening the victim. But then Mr Nona you pulled out a real looking sawn-off single barrel shot gun that you had in your possession and pointed it at the knee of the victim. Your possession of this weapon and immediate use of it demonstrates your willingness to engage in unlawful offending. Mr Naitoko initially made the demand for the victim to transfer ownership of his vehicle, Mr Nona made subsequent demands, and you both continued your involvement in the offending, implicitly reinforcing these demands.
30Mr Nona and Mr Naitoko possessed the imitation firearms while Mr Pesamino Mailei was unarmed but repeatedly used physical violence, causing injuries to the victim. I cannot draw any meaningful distinction between the direction that each of the guns were pointed towards on the victim’s body. Each of Mr Nona and Mr Naitoko made demands for the transfer of the vehicle. Mr Pesamino Mailei made menacing verbal threats to the victim during the later assault. It is not alleged Mr Nona uttered any verbal threats during the course of the offending, but clearly there was an implicit threat due to the presence of the weapon. All three of you forced the victim from Mr Pesamino Mailei’s car into his car. Mr Pesamino Mailei tried to force the victim back into the vehicle after the victim escaped, whilst the latter was pleading for his life.
31Each of you were aware of the actions of each other and worked together to engage in the offending. I do not accept counsel’s submissions made on behalf of Mr Pesamino Mailei that your role was less than that of the co-accused because you were not armed. I conclude that there is no proper basis upon which to draw any meaningful distinction between your respective roles in the kidnapping.
32Whilst there is considerable overlap between the kidnapping and the intentionally cause injury charge for Mr Pesamino Mailei and the kidnapping and the prohibited person possessing an imitation firearm charge for Mr Nona, some cumulation is warranted to reflect the different nature of those offences and each will be sentenced separately for those charges.
Personal Circumstances
Jonathan Nona
Family & Background
33Jonathan Nona, you were born in Sydney on 16 November 2000. You were 21 years old at the time of your offending and are now aged 22.
34Your parents were both born in Samoa and separated approximately 6 years ago. Very soon after this separation, your mother re-partnered and relocated to New Zealand. You have had minimal contact with her since then.
35You were living with your father in Mill Park before you were remanded.
36You are the second youngest in a sibship of six, having four sisters and one brother. One sister lives in New Zealand and the rest of your siblings live in Melbourne.
37You enjoy a large and loving family, instructing that you have close relationships with your father, all of your siblings and their children.
38Your partner of over two years, Serona, is a particularly important source of love and support for you in the community.
39I have regard to the tendered references provided from your family and friends which speak in glowing terms of your love, care, compassion and hopes for the future.[12]
[12]Exhibit 8; Exhibit 9; Exhibit 10; Exhibit 11; Exhibit 12
Education & Work
40You attended Preston North Primary School and later Lalor Secondary College until Year 8, at which time you left. You have had no further schooling or education since, with the exception of obtaining your White Card during a previous sentence of imprisonment.
41You have sporadically undertaken concreting work and soon after your release following your previous sentence, began working with your brother doing concrete pumping.
42You are motivated to return to work in the concreting and construction industry upon your release.
Substance Use
43Mr Nona, you commenced using cannabis at the young age of 13, smoking it on an almost daily basis since you first began. At age 15, you began using methylamphetamine often up to, or in excess of 2 grams daily.
44You instruct that your offending in your teenage years was invariably linked to your dependency on methylamphetamine. You developed social networks centred around drug use and criminal activity.
45Your offending before the court today occurred in the context of your problematic methylamphetamine use.
46You have never undergone any residential drug detoxification or rehabilitation.
Leli Pesamino Mailei
Family & Background
47Leli Pesamino Mailei, you were born in New Zealand on 20 May 1997. You were 24 years old at the time of your offending and are now aged 25.
48You and your family moved to Australia in 2003 when you were about 6 years old. You initially lived in Thomastown and South Morang before moving to Mernda where you have lived for the last 4 years.
49You were raised by your biological parents who are of Samoan background and are deeply religious. You are the middle born of five siblings, with two younger brothers and two older sisters.
50Your father is a bed manufacturer and a Church Pastor. He was a stern disciplinarian and you report a closer emotional relationship with your mother who works as an aged care assistant and who is also part of the Church. You have a good relationship with your siblings.
51You say that you grew up in a stable and supportive home environment and you described your parents as ‘good people’. Your relationship with them became more problematic during your adolescence, which led you to rebel against them. You attribute this conflict due to largely cultural and generational differences which caused you to spend more time away from your family.
52You commenced a relationship with your former partner when you were approximately 19 years old. You have a 5 year old son. You and your partner separated two years ago and your son resides with his mother. Prior to your arrest and remand, you saw your son on a regular basis.
Education & Work
53You attended Thomastown East Primary School, and Lalor Secondary College until Year 10 and then Northside Christian College until halfway through Year 11. You report being easily distracted at school and struggled academically.
54After leaving school you went to work with your father at a bed manufacturing factory before leaving and undertaking general labouring work. Prior to your arrest and remand earlier this year, you were engaged in upholstery work.
55You are reportedly a talented musician and have taught yourself how to play guitar, piano, bass and drums. You have also written and self-released your own music, and have received thousands of listens. You aspire to develop a musical career once released from prison.
56You have used your time in custody productively and have completed a number of vocational and other courses.[13]
[13]Exhibit 5
57Your father has arranged work associated with the Church upon your release.[14]
[14]Exhibit 6
Substance Abuse
58You commenced smoking cannabis and drinking on a regular basis at the age of 14. By 15, you had started smoking methylamphetamines which has been your main substance of choice over the past 10 years. In the period leading up to your offending, you were using methylamphetamines regularly. You report that at the time of your offending, you had been using drugs and had been awake for approximately three to four days. Psychologist, Ian Mackinnon,[15] reports that you were suffering with Substance Abuse Disorder at the time of your offending. You have never received any treatment or counselling for your drug addiction, nor have you received any therapeutic orders from courts in the past.
[15]Exhibit 4
Sentencing Considerations
59Mr Pesamino Mailei, following the hearing of your plea on 6 December 2022 you disclosed certain matters of a sensitive nature to your Counsel who wisely referred you back to Mr Mackinnon for further assessment. Accordingly, a supplementary psychological report dated 19 December 2022 was provided to the court.[16] I do not propose to detail your disclosures in open court. That report has been exhibited. I also have regard to the further submissions filed on your behalf dated 17 January 2022, and I assume that to be a typographical error which should read 2023, and the supplementary submissions from the Prosecution in reply dated 18 January 2023.
[16]Exhibit 13
60In light of your further assessment by Mr Mackinnon, he has diagnosed you with a complex post-traumatic stress disorder in addition to the earlier diagnosis of substance use disorder. He opined that those conditions:
'made a significant contribution to…[your] offending by degrading…[your] ability to reason and make sound judgment, disinhibiting [you] and releasing underlying aggressive impulses, fuelling impulsivity and eroding [your] sense of morality and community responsibilities.'…' …[in his] opinion, the aggressive persona that…[you] had ‘adopted’ also served as a chronic defensive measure, a means of protecting …[yourself] from being re-victimized (in any way). In this manner,…[you] could become the victimizer, rather than a victim.'
61Mr Pesamino Mailei, Mr Mackinnon’s findings demonstrate a clear nexus between your trauma, your subsequent substance abuse and your offending. This is a matter of significant mitigation I will take into account in respect of your personal circumstances in a general sense in your sentencing. They also raise issues of Bugmy considerations and therefore require an assessment as to whether or not your moral culpability for these crimes ought be reduced.[17]
[17]Bugmy v The Queen [2013] HCA 37
62It is clear that your complex PTSD and substance use disorder prevented you from making a sound judgement, and you acted impulsively to get involved in the initial dispute. However, I am not satisfied that your diagnosis operates to reduce your moral culpability for your continued involvement in this offending. You made ongoing conscious and voluntary choices to continue to assault and threaten the victim. I consider that your moral culpability should be moderated accordingly.
63Upon your release from custody, you will return to your parents’ house and work in the Church as a youth worker. You say that you are resolute that you will not be back before the courts. Mr Mackinnon opines:
'…since being arrested and remanded,…[you have] genuinely taken stock of…[yourself] and the antisocial values…[you have ]adopted, rediscovered the moral values…[your] parents imparted to…[you] and…[you are] now experiencing significant remorse, shame and guilt over…[your] offending. …[You appear] to have now rejected entirely, the antisocial values…[you] had previously adopted.'’
Plea of Guilty & COVID Consideration
64Mr Nona, you pleaded guilty at the contested committal of this matter. Mr Pesamino Mailei, you indicated on the morning of the committal that the matter would likely resolve, however further time was needed as you had recently engaged new lawyers. You ultimately plead guilty some two months later.
65In your pleas of guilty, you both avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your pleas of guilty into account, particularly being a plea made whilst the justice system is struggling to recover from the delays caused by the pandemic. In accordance with the principles in Worboyes’ case, you will receive an actual and palpable amelioration of your sentences.[18]
[18][2021] VSCA 169
Criminal History
66Mr Nona, your counsel concedes that you have a relatively extensive criminal history for someone of your age, dating back to your first court appearance at 14 years old. The majority of your priors are for dishonesty, property and driving related offences. You do have priors for violent offending. You do not have a prior conviction for firearm offences or kidnapping however. You served the entirety of a 30-month imprisonment sentence with a non-parole period of 20 months at the age of 19.
67Given your prior history, Mr Nona, the principles of specific deterrence and protection of the community will assume more weight than they otherwise would have in these circumstances.
68Mr Pesamino Mailei, you have a limited prior criminal history consisting of two matters that were adjourned on good behaviour without conviction. These matters date back to 2015 and 2016 but I do note that both of these matters involved violent offences.
Remorse
69Mr Pesamino Mailei, psychologist Ian Mackinnon reports that you presented with a 'complete lack of young offender bravado' and that your remorse and shame over your offending was 'genuine and palpable'. Mr McKinnon reported that you show signs of reactive depression and considerable shame, guilt and remorse. He said that you broke down in tears when discussing your offending and how it defiled against the moral values your parents had imparted on you.
70Beyond your expressions to Mr Mackinnon, Mr Pesamino Mailei and both of your pleas of guilty, you have not otherwise demonstrated remorse for your actions.
Burden of Imprisonment
71Mr Nona, this will be your second term of imprisonment in adult gaol. You have been in custody on these charges for 301 days. Mr Pesamino Mailei, this is your first time in custody whilst on remand for these offences. You have been in custody for these charges for 297 days. You have both been in custody during the height of the COVID-19 pandemic and I accept that the stringent conditions placed on you in custody would have made it more burdensome than it might otherwise have been. I take these hardships into account when determining your sentence.
72Mr Nona, despite the challenges of custody, you have nonetheless tried to use your time on remand productively by completing courses in food handling, occupational health and safety as well as a drug and alcohol course.
73Mr Pesamino Mailei, you report that your time in custody has been positive and rehabilitative. You have been taken care of by other prisoners and are of the view that prison life is not for you. You have been working in nuts and bolts and undertaking courses where you can. The certificates of completion tendered on the plea demonstrate that you continue to actively participate in the services that the prison offers.
74Mr Pesamino Mailei, in his supplementary report Mr Mackinnon expresses concern that in your current distressed state you will struggle to cope well enough in the prison environment. I accept that limb 5 of Verdins is enlivened as your present condition will increase the hardship of your confinement.[19]
[19]R v Verdins [2007] VSCA 102
Prospects Of Rehabilitation & Risk of Re-Offending
75Mr Pesamino Mailei, Mr Mackinnon, reports that you have benefited from your time in custody in that it has assisted you in achieving abstinence and has given you time to examine the antisocial and destructive pathway your life had taken. Mr Mackinnon opined that you do not have entrenched antisocial and criminal tendencies and you have a 'sincere desire and strong motivation to make enduring rehabilitative progress and avoid recidivism'. Mr Mackinnon stated that your long term rehabilitative prospects are favourable. I do note Mr Mackinnon’s view that you remain somewhat vulnerable to a relapse into habitual substance use should your post-release circumstances become unstable.
76Mr Pesamino Mailei, you state that you are aware of the link between your drug abuse and offending. Upon your release, you assert that you will look into professional rehabilitation services and counselling. Mr Lowy submits that you to have strong prospects of rehabilitation, pointing to your partial admissions to police, your remorse, the character reference tendered on the plea and the expert opinion of psychologist, Ian Mackinnon. Mr Lowy also emphasises the protective factors in your life being your employment history, supportive family and close relationship with your son.
77Mr Mackinnon further expresses that your response during the offending was disinhibited, releasing underlying aggressive impulses and eroding your sense of moral and community responsibilities. Counsel for the Prosecution, Ms Caruso in her supplementary submissions, submits that with the lowering of your moral culpability comes an increase in the need to protect the community due to the response you had to an unarmed, helpless friend begging for your help. This is relevant to my sentencing synthesis.
78
The prosecution submit that your prospects for rehabilitation ought to be assessed as fair, when weighing your long history of drug abuse and association with
anti-social peers against the protective factors that exist in your favour.
79Mr Pesamino Mailei, given the factors outlined above, I am however of the view that your prospects of rehabilitation are better than fair and are more accurately assessed as reasonable.
80Mr Nona, despite your already significant history, whilst your prospects of rehabilitation must be considered guarded, rehabilitation remains a significant sentencing consideration given your youth.
Youth
81Mr Nona, you were 21 years old at the time of your offending and as such, fall to be sentenced as a youthful offender.[20]
[20]DPP v Hodgson [2019] VSCA [72]. See also R v Boland (2007) 17 VR 300, Nettle JA (with whom Ashley and Dodds-Streeton JJA agreed)
82Mr Pesamino Mailei, although not technically a youthful offender, you are still a young man.
Current Sentencing Practices
83In sentencing both of you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and reintegrated into society. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
84I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act 1991 (Vic). Given your respective ages, and the psychological diagnosis of you Mr Pesamino Mailei, rehabilitation assumes more weight than it otherwise would in these circumstances. However, I do note the need to adequately balance that consideration with the other important principles of deterrence (both specific and general), denunciation and protection of the community. I have also taken into account current sentencing practices for the offences to which you have both pleaded guilty as well as the important principles of both totality and proportionality.
Comparative Cases
85Both prosecution and defence counsel helpfully referred to a number of comparative cases which provide some guidance to the Court in assessing objective gravity, particularly in relation to the charge of kidnapping.[21]
[21]Au-Kau v R; Ofamooni v R [2018] VSCA 296; Judge v R; Dix v R (2021) VSCA 315; Roe v R (2021) VSCA 54; DPP v Azzopardi (2019) VCC 1406; DPP v Ghadami-Loran [2019] VCC 1146; DPP v Odisho [2021] VCC 325; Elmaghraby v R [2015] VCC 1914; Hanna & Ors v R [2014] VSCA 187; Ka Ming Chong v R [2022] VSCA 156; Le Huynh & Phu Huynh v R [2020] VSCA 222; Roe v R [2021] VSCA 54 and Stamper v R [2021] VSCA 323
86As compared to the case of Dix I note that neither of you have assisted authorities,[22] and in relation to the other comparative cases involving young offenders, it is notable that your offending involved the use of firearms the victim believed to be real.
[22]Judge v The Queen; Dix v The Queen [2021] VSCA 315
Totality
87Mr Nona, your counsel has conceded on your behalf that there is a need for cumulation with respect to the offence of being a prohibited person possessing a firearm given that it represents a distinct offence. I note also that the firearm was not recovered. However, I have regard to the temporal proximity of the offences and how the firearm offence overlaps with the kidnapping.
88Mr Pesamino Mailei there is also an overlap between the intentional injury charge and the kidnapping. You punched the victim numerous times while the other
co-offenders were brandishing real looking firearms. This was callous and repeated offending against a defenceless victim and ought bear additional punishment while noting the need to avoid double punishment.
Parity
89Offenders who are party to the same offence should, all things being equal, receive the same sanction. However as Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 stated:
'…but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
90Your co-accused Mr Naitoko has indicated that his matter will not resolve and that his matter is set to proceed to trial.
91I have concluded that whilst your physical roles in the offending were different, the gravity of your offending is essentially the same. Mr Nona you have extensive prior convictions but have had little opportunity to participate in therapeutic dispositions despite your age and lengthy history of drug abuse. You were a prohibited person at the time of these offences. Given your violent past, specific deterrence and protection of the community must be weighted more significantly than might otherwise be the case for a young offender. Mr Pesamino Mailei despite being older than Mr Nona, your criminal record is far more modest and you have not offended for more than five years. This has been your first time in custody, you have been a model prisoner, and have gained significant and genuine insights into the factors that motivate your offending behaviour.
92What otherwise differs between you is your moral culpability for your crimes. By virtue of your recent disclosures Mr Pesamino Mailei, and the subsequent diagnoses which go to assist the Court with an understanding of your offending behaviour, your moral culpability is somewhat reduced, and will be reflected in the difference in the sentences which each of you will receive.
Mandatory Imprisonment
93The offence of kidnapping, to which you have both pleaded, is a Category 2 offence and the court must impose a custodial sentence other than a combination sentence of imprisonment and a community corrections order, unless legislated exceptions apply.[23] No such exceptions were submitted to exist on behalf of either of you.
[23]Crimes Act 1958 (Vic), s63A; Sentencing Act 1991 (Vic), s3, s5(2H)
94Both of your counsel fairly conceded that having regard to the objective gravity of your offending and the proper application of sentencing principles, a term of imprisonment with a head sentence and non-parole period is warranted. I accept that for both of you, to reflect your relative youth, your therapeutic needs and to promote your prospects of rehabilitation, there are good reasons to achieve a meaningful disparity between the head sentence and non-parole period imposed. Accordingly, I will impose a longer than usual non-parole period.
Parsimony
95Given both your respective ages the principal of parsimony is a particularly relevant sentencing consideration. Parsimony demands that imprisonment is a sentence of last report and even then, the term imposed should be for the minimum period that justice requires. In DPP v Milson,[24] the Court of Appeal stated:
'In a climate when sentences for many (if not most) crimes are increasing, it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of an offender. If an offender, whether young or recidivist, can be steered away from a life of crime, the public interest is best served.'
[24][2019] VSCA 55, paragraph [71]
96You are both young men and have the rest of your lives ahead of you. Mr Pesamino Mailei you had not come to the attention of the Courts for a significant period prior to this offending. You are both not yet lost to the grips of the criminal world and my sentences will reflect the need to prioritise your rehabilitation to benefit both yourselves and to protect the community at large.
Sentence
Jonathan Nona
97Jonathan Nona I sentence you as follows:
98On the first charge of kidnapping, you are convicted and sentenced to 4 years imprisonment (48 months). This will be the base sentence;
99On Charge 2, that of prohibited person possess imitation firearm, you are convicted and sentenced to 12 months imprisonment.
100I order that 4 months of the sentence on Charge 2 be served cumulatively upon the base sentence.
101That is, the total effective sentence for you Mr Nona, will be 4 years and 4 months (52 months) imprisonment.
102I order that you serve 2 years and 10 months (34 months) before becoming eligible for parole.
Pre-Sentence Detention
103
Pursuant to s18 of the Sentencing Act 1991, the period of 301 days of
pre-sentence detention (not including today) served by you is hereby declared as having already been served in respect of your respective sentence and I order that such declaration and its details be entered into the Court records.
Leli Pesamino Mailei
104Leli Pesamino Mailei I sentence you as follows:
105On Charge 1 (kidnapping) you are convicted and sentenced to 3 years and 6 months imprisonment (42 months). This will be your base sentence;
106On charge 2 (intentionally cause injury) you are convicted and sentenced to 12 months imprisonment.
107On summary Charge 8 (fail to provide your passcode in accordance with a direction to assist) you are convicted and sentenced to 3 months imprisonment.
108I order that 3 months of the sentence on Charge 2 be served cumulatively upon the base sentence. I order that 1 month of the sentence on summary Charge 8 be served cumulatively upon the base sentence.
109That is a total effective sentence is 3 years and 10 months (46 months) imprisonment.
110I ought to have added that the one month of the sentence on summary Charge 8 is to be served cumulatively upon the base sentence and that imposed cumulatively on Charge 2. So I clarify the total effective sentence is 3 years and 10 months.
111I order that you serve 2 years and 6 months imprisonment (30 months) before becoming eligible for parole.
Pre-Sentence Detention
112
Pursuant to s18 of the Sentencing Act 1991, the period of 297 days of
pre-sentence detention (not including today) served by you is hereby declared as having already been served in respect of your respective sentence and I order that such declarations and its details be entered into the Court records.
Section 6AAA Declaration
113Mr Nona, pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 6 and a half years imprisonment with a non-parole period of 4 and a half years.
114Mr Pesamino Mailei, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 6 years imprisonment with a non-parole period of 4 years.
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