Director of Public Prosecutions v Ofamooni

[2017] VCC 1970

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KELEPI OFAMOONI
JOSEPH AKHAU

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v Ofamooni & Ors
MEDIUM NEUTRAL CITATION:	[2017] VCC 1970

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. White
For Accused Ofamooni	Ms L. Torres
For Accused Akhau	Mr P. Tomlinson

HIS HONOUR:

1Kelepi Ofamooni, you have pleaded guilty to the following offences with the following maximum penalties.  Joseph Ahkau, you have pleaded guilty to the following offences with the following maximum penalties:

Kelepi OFAMOONI	Joseph AH-KAU
Charge	Date	Offence	Offence
1	30.6.17	Aggravated burglary – 25 years Imprisonment	Aggravated burglary - 25 years Imprisonment
2	30.6.17	Theft - 10y Imprisonment	Theft - 10y Imprisonment
3	30.6.17	Kidnapping - 25y Imprisonment	Kidnapping - 25y Imprisonment
4	1.7.16	Armed robbery - 25y Imprisonment	Prohibited person possess  firearm - 7y Imprisonment
5	1.7.16	Intentionally cause injury - 10y Imprisonment	Intentionally cause injury - 10y Imprisonment

Summary of Offending

2Although you were both charged with different offences, your offending arises out of the same set of circumstances.  The Crown tendered a prosecution plea opening and supplementary opening.  A summary of your offending is as follows.

3On 30 June 2016, the complainant, Samuel Large, was house sitting for his brother at a house in Melton.  Samuel Large was a complete stranger to you both.

4The house was ordinarily occupied by Samuel Large’s brother, Jake, and his girlfriend, Danella.  You were tasked by a drug dealer with collecting a debt purportedly owed by Danella.

5At about 5:30 pm on 30 June 2016, you both travelled in a car and went to the front door of the house.  You, Mr Ofamooni, were armed with a shot gun and knocked on the door.  The CCTV camera shows the door being kicked in by you and that is the basis of the charge of aggravated burglary against you both.

6You entered the house.  Samuel Large tried to escape, but you took him prisoner.  You aimed the shot gun at him and demanded cash and drugs.  You stole a number of items that he was wearing and that is the count of theft against you both.

7Still armed with the shot gun, you took Samuel Large by force from the house and put him in your car and drove him to another address, where he was kept over the next 30 hours.  He was only released when police liberated him late on the night of 1 July 2016.  That is the count of kidnapping.

8Over the next 24 hours, you negotiated with his family for the payment of a ransom.  At first, you demanded $10,000 for his release.

9At about 6 am on 1 July 2016, you both returned to the house.  You kept Samuel Large captive at an unknown location.  He was blindfolded at this time. Back at the house, you commenced ransacking it and removing items and placing them in your car.

10As you were doing so, another young man, Adam Bell, saw you carrying items from the house and placing them in your car.  You, Mr Ahkau, were armed with a firearm and that is the charge of being a prohibited person in possession of a firearm.

11Whilst armed with the firearm, you, Mr Ofamooni, robbed Mr Bell of his car keys and stole his car.  That is the count of armed robbery against you.

12When you returned to the location where Samuel Large was kept, you,
Mr Ofamooni, commenced a sustained and brutal attack on your victim.  You punched him or used a black rubber mallet to strike him on the legs, chest, arms and hands.  As a result of the injuries he sustained, Samuel Large could not stand up or walk.  He also received a severe laceration on the webbing of his little finger on his left hand.  The photos of his injury depict just how bad this cut was. Although you, Mr Ahkau, did not strike the victim, you were aware that injury would probably be inflicted.  In any event, you have also pleaded guilty to the charge of intentionally causing injury, again, which is laid against you both.

13During the course of his ordeal, the victims clothes were changed as his were soaked in blood.  An unidentified female bandaged his hands and legs and gave him some food.

14During the course of the afternoon, you kept negotiating with his brother for payment of a ransom of cash and firearms.  You told his brother that, "There will be blood" if he doesn’t comply.  On the evening of 1 July 2016, you,
Mr Ofamooni, told the victim that he was going to be shot that night.

15Fortunately, the police were able to intercept the telephone conversations between you and Jake Large where you were demanding payment of a ransom.  Through their work, the police determined where you were holding
Samuel Large.  Members of the Special Operations Group liberated him and you were both arrested and taken into custody.

16You, Mr Ofamooni, made admissions in a record of interview to the kidnap and assaults on Samuel Large. You, Mr Ahkau, refused to answer the allegations put to you.

17As a result of the injuries inflicted, Samuel Large spent two to three days in hospital and required surgery to his left hand.  He filed a victim impact statement dated 29 November 2017, that is, some 18 months after the offending.  He stated that he suffered from depression, paranoia and stress.  At times, he felt suicidal as he felt hopeless.  It is apparent that he is still suffering to the present time.

18You have now both been in custody since your arrest on 1 July 2016.  You have each served 536 days pre-sentence detention, excluding today.

Analysis of the gravity of your offending

19You, Mr Ofamooni, have no prior convictions.

20Mr Ahkau, you have admitted a large number of prior convictions for dishonesty, assaults, drug and firearms matters.

21I have set out the summary of your offending in considerable detail to emphasise the fact that the seriousness of your offending speaks for itself.  The aggravated burglary was the entry into the house whilst armed with a shot gun with the intention to assault.  The theft of property from Samuel Large was committed whilst the shot gun was trained on him.  The kidnapping was a terrifying ordeal committed over a 30 hour period where the victim was often blindfolded, severely assaulted, which is the charge of intentionally cause injury principally by you, Mr Ofamooni, but in which you were complicit Ahkau, and he was put in fear of his life.

22The armed robbery committed by you, Mr Ofamooni, on Adam Bell is extremely serious.  Once again, you used the firearm to rob him of his van.

23Mr Ofamooni, notwithstanding your lack of prior convictions, your criminal conduct is at the highest level of criminal culpability.  The explanation given on the plea was that you were to collect a debt in exchange for some free methylamphetamines.  When the person from whom you were to collect the debt, Danella Tamei, was not home, you apparently kidnapped the victim, "to put on some pressure."  After that, you simply explained your actions as that you "got in too deep."  Your willingness to repeatedly use the shot gun to terrify your victims, your constant sustained assaults on Samuel Large, your unwillingness to release him and your statement of intention to shoot him display the highest level of criminality.

24In my assessment, you must each share equal responsibility for the actions of each other during the course of the charges of aggravated burglary, theft, kidnap and intentionally cause injury.  The Crown case, which you have now both conceded, was that you, Mr Ofamooni, were responsible for the infliction of most, if not all, of the injuries to Samuel Large. Nevertheless, you, Mr Ahkau, conceded through your acceptance of the Crown opening that you knew of the likelihood of injuries being inflicted in the course of the kidnap by
Mr Ofamooni.

25The point of difference between the two of you is that you, Mr Ofamooni, are charged with the armed robbery on Bell, and you are not, Mr Ahkau. Mr Ahkau, only you though, are charged with being a prohibited person in possession of a firearm.

26Mr Ofamooni, your actions must be met by general deterrence, denunciation, just punishment and protection of the community.  The factors in mitigation and your lack of prior convictions can play only a small part in determining the appropriate sentence for your offending.

27The same considerations apply to your part, Mr Ahkau, although of course, you are not charged with the armed robbery on Bell.  Nevertheless, your possession of a firearm in light of the sentence imposed on you in 2011 shows the need for a real measure of specific deterrence in your case.  Mr Ahkau, you were in possession of the shot gun as a prohibited person.  It is important to note something of the background against which this offence occurred.

28On 25 February 2011, you were convicted and sentenced to three years' imprisonment with a minimum of two years to serve on three counts of being a prohibited person possessing an unregistered firearm.  The summary of that offending was provided to me.  It appears that you were caught selling guns to an undercover operative.  You were denied parole, and you ended up serving the three years on that sentence.

29Accordingly, in both your cases, you are both facing severe punishment for this offending.

Personal circumstances

Ofamooni

30Mr Ofamooni, you are 29 years of age and you were born in August 1988.

31You were the youngest of nine children.  Your family is of Tongan descent.  You were brought up in a very religious family, which held good values.  I was told of your strong sibling support.  You were born in New South Wales and moved to Melbourne with your family when you were 13 years of age.

32You were not particularly academic.  You left school after Year 8 and went to work in an abattoir for a few years.  You maintained consistent employment after that as a labourer, and in a steel mill, then in later times as a railway flagman until 2014.  Apart from your work, you were a very good rugby player and played high-level competition rugby.

33You were very close to your mother.  It appears that she had been a major support to you over your life.  She became ill and died in December 2015.  At the same time, you had a break up with your girlfriend.  It was at the time of your mother’s illness in 2014 that your drug use of methylamphetamines commenced.  With her death, your drug use increased and the offending occurred six months later.

34In the lead up to the offending, you often stayed with friends.  I was told that you became paranoid and angry.  It appears that in the time leading up to the offending, you had little stability in your lifestyle.

35I was provided with a report from Alison Mynard.  Ms Mynard reported that you have extremely low intellectual functioning and that you appear quite emotionally and psychological immature.  She considers that you have had a very difficult time dealing with your mother’s death.  Ms Mynard concludes that your drug use did escalate in the period after your mother’s death.  She also considers that you may have suffered a drug induced psychosis.

36Ms Mynard considers that your offending was strongly influenced by your intellectual disability.  Nevertheless, your counsel submitted that none of the principles in Verdins were available in this case.

37It is important to note that Ms Mynard considers that you appear genuinely remorseful for your offending.  Your counsel told me that you have very little recollection of it as you were using a lot of ice at the time.

38You have used your time in custody to good effect.  You have completed a number of vocational courses and your urinalysis assay results have all been negative.  You still have strong family support.  I received a bundle of references, which show that you come from a good hard-working family with a strong religious faith.  You attend Christian services in custody.

39You have hopes for the future as you want to marry, have children and get full time work.

40Your counsel submitted that the plea of guilty should mitigate the offence, although it was conceded that it came very late.  Your matter did not resolve until 7 September 2017.  I consider that the plea of guilty has some utilitarian benefit and should attract some discount for that benefit.  Given the lateness of the plea, it can only be hoped that the expressions of remorse to the psychologist are genuine.

41Your counsel submitted that you have good prospects for rehabilitation, given your previous work and sporting history.  In addition, you have the support of your family, and you have demonstrated an ability to abstain from drugs whilst in custody.  Ms Torres submitted that the fact that you have no criminal offending until you were 27 is another indicator that you are unlikely to offend again like this later in life.

42These types of protective factors do give some hope that you have prospects for your rehabilitation.  Further, you are still a relatively young man.  Nevertheless, the high level and sustained nature of your offending means, as I said earlier in these remarks, that the factors in mitigation can play only a small part in the structure of the sentence I must impose upon you.

Ahkau

43Mr Ahkau, you are 36 years of age, and you were born in New Zealand in March 1981.  You came to Australia with your parents and three siblings following the death of your brother in a traffic accident when you were in your early teens.

44You described your childhood as happy.  You finished Year 10 before taking consistent work as a labourer for labour hire agencies.  You primarily worked on container loading/unloading until you got your forklift license.  You worked until February 2015 when your drug use increased.  Of course, your work history has been interrupted by your periods in prison.

45You met your wife when you were 19 and you have five children between the ages of 17 and two years old.  You became addicted to methylamphetamines about 12 years ago.  I was told that drug use has considerably affected your relationship with your wife and children.  The family home is in St Albans, but in the period leading up to your offending on this occasion, you often stayed with parents or friends as you were not welcome at home due to your drug use.

46Your criminal history dates back to 1998.  You have many convictions for dishonesty offences, drug matters (including trafficking in drugs), driving matters, the firearms matters, which I have already mentioned, and failure to comply with orders for bail and CCOs.  You have served a period of imprisonment in the past and in more recent times, you have been granted further CCOs.

47On 21 June 2016, nine days before this offending, you were placed on a CCO for a period of 12 months for drug offences, driving offences, dealing in proceeds of crime and, remarkably, for contravening a CCO by failing to answer bail.  You have shown little willingness to take the opportunities offered to you to remain in the community and to rehabilitate.  There is no evidence placed before me on your plea to indicate that you have completed any courses whilst in custody or that you have taken any steps towards your rehabilitation.  I consider your prospects for rehabilitation are presently very poor.

48Since you have been in custody on this occasion, your wife and children visit you once a fortnight and you speak to them by telephone every day.

49On 29 December 2016, you received notice from the Australian Border Force that you will be an unlawful noncitizen at the time you would otherwise be entitled to be released from custody, and that you will be placed into immigration detention before being removed from Australia.

50I gave your counsel the opportunity to provide me with further information about your status, but surprisingly, nothing was provided.  I assume that your lawyers were not able to further clarify the position.  I was told on the plea that it appears that you have no avenues of appeal open to you, and that you will be deported to New Zealand when released from custody.  Your wife and children are Australian citizens and have never lived in New Zealand.

51It was submitted that I should take into account the burden of the prospect of deportation as a mitigating factor consistent with the principles in Guden v R.  In Guden, the Court of Appeal held that the fact that an offender will serve their term of imprisonment in expectation of being deported following release will mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.  Furthermore, it is appropriate in this case to take into account that you will lose the opportunity of settling permanently in Australia.  Given your long history in Australia, I consider that both factors ought to operate to mitigate your sentence.

52In addition to this, it was submitted that the plea of guilty has a utilitarian benefit and should be taken into account in mitigation of your sentence.  Like that of your co-offender, the plea in this case was entered late, 8 September 2017.  Nevertheless, I am prepared to consider that it does have some utilitarian benefit as it has saved the victim, Samuel Large, from having to give evidence again.  I note that although he was called to give evidence at the committal, I was told that only a couple of questions were asked of him by your counsel in cross-examination.

53As I noted with your co-offender, Mr Ahkau, the factors relied upon to mitigate your sentence must take a backseat role to objective principles of general deterrence, denunciation, punishment, protection of the community and in your case, specific deterrence, given the very serious nature of your offending and the nature of your prior convictions.

54In the course of the plea made on your behalf, your counsel referred to the Sentence Advisory Council Sentencing Snapshots for aggravated burglary and armed robbery.  In addition to that, I was provided with statistics for the offences of aggravated burglary and kidnapping.  Finally in this respect, Mr Miller provided me with a selected table of cases of sentences imposed in the County Court in 2016 for kidnapping and for aggravated burglary.

55I have considered all of the material provided to me.  The principles enunciated in the cases are of course applicable to both of you.  I have also had regard to the sentencing principles outlined in relation to the offence of aggravated burglary in Hogarth, Meyers and the recent case of Hi.  I have also had regard to the statements of the High Court in the recent case of Dalgliesh.  From all of these cases, I conclude that, in the end, the sentence I arrive at must take account of objective sentencing principles and the factors personal to each of you, to the extent that they may mitigate your sentences.  Whilst I may have some regard to current sentencing practices, that is, other sentences imposed for like offending, those practices cannot constrain the sentence which I consider appropriate in this case.  I must arrive at the sentence appropriate in the circumstances of this case and appropriate to each of you in your own circumstances.

56Whilst you must both share equal responsibility for much of the offending, ultimately, it has been necessary to make some adjustment to the sentences I have imposed on each of you.  Of course, you are not facing the same charges as each other.  Further, there are considerable differences between your personal circumstances.  In your case, Mr Ofamooni, I consider the differences I have made in the sentences between the two of you reflect these factors. 

Ahkau Sentence

57Mr Akhau, I will sentence you first.

58On the charge of aggravated burglary, you are convicted and sentenced to seven years' imprisonment.

59On the charge of theft, you are convicted and sentenced to 18 months' imprisonment.

60On the charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to three and a half years' imprisonment.

61On the charge of kidnapping, you are convicted and sentenced to seven years' imprisonment.

62On the charge of intentionally causing injury, you are convicted and sentenced to two years' imprisonment.

63The charge of kidnapping is the base sentence, that is, a sentence of seven years.

64I order that three years of the sentence on the aggravated burglary is cumulated on this charge.  I order that three months of the sentence on the charge of theft is cumulated on these sentences.  I order that two years of the sentence on being a prohibited person in possession of a firearm is cumulated on those charges, and I order that three months of the sentence on the charge of intentionally causing injury is cumulated on those charges.

65I therefore order a total effective sentence of 12 and a half years.  I order that you serve a non-parole period of nine years before you are eligible for parole.

66Thank you.  You may take a seat.

Ofamooni Sentence

67Mr Ofamooni, if you could stand please.

68Mr Ofamooni, on the charge of aggravated burglary, you are convicted and sentenced to seven years' imprisonment.

69On the charge of theft, you are convicted and sentenced to
18 months' imprisonment.

70On the charge of armed robbery, you are convicted and sentenced to
four years' imprisonment.

71On the charge of kidnapping, you are convicted and sentenced to
seven years' imprisonment. 

72On the charge of intentionally causing injury, you are convicted and sentenced to three years' imprisonment.

73The charge of kidnapping is the base sentence, that is, a sentence of seven years.

74I order that three years of the sentence on the aggravated burglary is cumulated on the base charge.  I then order that three months of the sentence on the charge of theft is cumulated on all other charges.  I order that 15 months of the sentence for armed robbery is cumulated on those charges.  I then order that six months of the sentence on the charge of intentionally cause injury is cumulated on those charges.

75I therefore order that you serve a total effective sentence of 12 years.  I order that you serve a non-parole period of seven and a half years before you are eligible for parole.

76In the case of both of you, I declare that a period of 536 days, excluding today, of pre-sentence detention is reckoned as already served. 

77My 6AAA declaration is that but for the plea of guilty in the case of you,
Mr Akhau, I would have imposed an overall sentence of 15 years, with 12 to serve.

78In your case, Mr Ofamooni, I would have imposed a sentence of 14 and a half years, with 11 years to serve.

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