Director of Public Prosecutions v Papa
[2021] VCC 716
•2 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00017
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL PAPA |
---
JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2021 | |
DATE OF SENTENCE: | 2 June 2021 | |
CASE MAY BE CITED AS: | DPP v Papa | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 716 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr M. Fisher | Ms K. Thompson for the Office of Public Prosecution |
| For the Accused | Mr R. Backwell | Chris McLennan & Co |
HIS HONOUR:
1On the evening of 12 August into the early hours of 13 August 2019, you Joel Papa were in the company of your co-accused Cruz Noonan, and other men, first to the house in Sunbury and later driving in nearby streets.
2What was revealed by CCTV footage and other evidence, was that your co-accused Noonan brought firearms to the house and then took the gun with him when you went out driving. You were driving a Holden Commodore with Noonan as your passenger. Pausing at this early point in the account of what happened, I emphasise that it is very concerning behaviour just to have loaded firearms in the car as you men aimlessly drove around the streets of Sunbury late at night. In my view, it was almost inevitable that something quite dangerous would unfold and so it turned out.
3
Around 3:10am, two police officers had a break from their divisional van duties and pulled into the local McDonald's store. They parked the divisional van in the McDonald's carpark. Around the time that the police officers were heading from the carpark into the McDonald's store you drove through the McDonald's carpark, passing the divisional van, and then you went out of the carpark, performed a
U-turn and drove back to the entrance of the carpark before accelerating away. Plainly, having seen the police car, you were scoping the scene. You then drove your car back towards the carpark and close enough. Noonan fired a shotgun at the police car three times.
4The police officers ran to the entrance of the McDonald's store to investigate. What they saw and heard was you driving by the carpark, sounding your horn, while Noonan woohoo'd from the passenger seat. Clearly, you were, in a way, celebrating your outrageous and dangerous behaviour. The police car was hit by shotgun pellets, including at the rear, breaking a window. But it did not end there.
5The officers had summoned other police assistance. As one officer was on the radio to police command, you drove back towards the police car. You stopped some 200-250 metres away and Noonan again fired the gun at the police car. The original two police officers retreated inside the store and gathered the three employees in order to take cover in the manager's office. Other police arrived or arrived back and were let into the store for their safety. At this point, you again drove back to the scene, this time not using the shotgun, but rather your car as a weapon by ramming the other police car twice. You again drove off. Both police cars were damaged, first by the shotgun pellets and then by the ramming.
6The police and the McDonald's staff remained locked in the store until the Critical Incident Response Team were able to safely extract them some time around 4am. Police in numbers came to the scene but you, again, drove past, sounding the horn and yelling out to the police, making it clear that you were deliberately gloating over what had happened. The Police Air Wing was eventually able to track your movements in the car.
7First, you dropped off a man called Foon at his car, which was in a convenience store carpark nearby. He was quickly arrested. He later cooperated with the police, providing the police with information about you and Noonan as the main offenders. You drove on from there to your house, got out, leaving the car with Noonan. You were quickly arrested by the Critical Response Team. Noonan was later arrested after abandoning the car and running. Later, forensic tests made it clear that Noonan was the one who fired the gun. The prosecution put its case that way. I should add at this point, that Noonan was, at some point, granted bail. His plea was listed to be heard at the same time as yours but he failed to answer bail and, as I understand it, a warrant has been issued.
8Investigations revealed that earlier in that evening, before the shooting, you and your co-accused were together at the third co-accused, a man named Vulic, at his premises in Sunbury. There was a CCTV camera at his house. The footage was erased, it seems, in order to impede any investigation. What was recovered by the police reveals that firearms were brought to the house by Noonan. It was also clear a firearm was passed through the driver's side window when you were seated in the driver's seat. This was follow by Noonan coming to the car, getting in and then you drove off. Shortly thereafter, the first shooting occurred involving the police car in the McDonald's carpark. So you then drove back to Vulic's house where the firearm was taken out of the car. You drove back to the scene to yell and carry on before the Air Wing picked up your movements and the arrested followed.
9When you arrested, there were a number of stolen items, being a ride-on mower and motorcycle, at your house. You have pleaded guilty to the possession of the proceeds of crime relating to those items. You also pleaded guilty to a summary offence of driving whilst disqualified and committing an offence while on bail. As to the major incident, you have pleaded guilty to using a firearm in a public place and damaging an emergency vehicle. You are guilty as complicit in Noonan's firing of the gun. The maximum term for these crimes is 10 years' imprisonment for the use of a firearm in a public place and five years' imprisonment for damaging a police car. It is two years' imprisonment for possession of the proceeds of crime and two years' imprisonment for drive whilst disqualified and three months for committing an indictable offence while on bail.
10The maximum term of an offence is a factor that I am bound to take into account in the sentencing process. The maximum term articulates just how serious the community, through our Parliament, considers these crimes. As to the gravity of these crimes, plainly, the shooting and the ramming of the police car were dangerous and serious crimes. In so far as using a loaded firearm in a public place, yours is a very serious example of that offence. That is so for the following reasons:
1. The use of the firearm was targeted and deliberate. It was not, for example, just shooting into the air to frighten or for no real purpose.
2. The target was a police car, thus, this was an attack on law enforcement using a deadly weapon.
3. It was not just one shot but three at first, then more seriously, returning to shoot again. This is particularly dangerous as, undoubtably, the police were in the vicinity investigating the sounds of the first shooting.
4. The public place was in a shopping area and, more relevantly, in a carpark of a popular fast-food store and one where it is widely known that it remains open late, if not 24 hours. Thus, while it was 3.30am in the morning and quieter than in daylight hours, the crimes remain highly dangerous and frightening.
5. You and your co-accused's gloating conduct shortly after each of the shooting episodes reveals your brazen contempt for law enforcement. While these matters more impact upon your level of moral culpability, it is also revealing of how little regard you have for the safety of others in our community. As to the damaging of the police vehicle by ramming it, that too was an example of deliberate, brazen and contemptuous offending directed at police. This was not some unfortunate or even reckless collision. You, as the driver, rammed the second police car not once, but twice.
11Your moral culpability is to be viewed through a number of factors. Firstly, as to your role, you were not the shooter, nor did you bring the gun to the house earlier and into the car, though, you are a good deal older than the teenage Noonan. Nonetheless, I take into account your low IQ as making it more likely you follow directions rather than orchestrated the whole wild episode. You are someone who does not or cannot think things through and make, thereafter, appropriate judgements. Thus, I do not see you as morally culpable as the co-accused in this matter, but it is still the case that you were complicit and involved in what was a protracted incident of not just one shooting of a police car and then escape, but two separate shootings and a separate ramming of the police car.
12Your low IQ is an important aspect of your personal circumstances. There are other important matters in your past that lead to an elevation of your moral culpability and also require greater weight to be given to the need to protect the community. What I am referring to here is, your concerning extensive criminal history and, more particularly, the number of attacks on the police in your prior criminal history. Your offending dates back nearly a decade, with a Youth Justice sentence for offences of violence, violence to police, weapons, threats and driving offences in 2012. In 2014, then at the age of just 21, you were sentenced by a judge of the County Court to three years with a minimum of 18 months before you were eligible for parole for serious violence inflicted on a woman, your then partner. Also in 2014 you were sentenced for dangerous driving while pursued by police and reckless conduct endangering life.
13In November 2018, that is, just 10 months before this offending, you were sentenced to 152 days of imprisonment, being the days that you had already spent on remand, and you were placed on a 12 months' Community Corrections Order for numerous offences. That, most concerningly, included dangerous driving while being pursued by police, reckless exposure of police to risk by your driving, threats, assaults, and weapons offences. The circumstances, as I was provided information in the prosecution opening, involved numerous pursuits while you were driving a stolen vehicle and attempts to ram police vehicles on multiple occasions. What is becoming apparent is your growing tendency to attack or endanger police when driving. The Community Corrections Order that you were placed on was still applicable when you committed these offences.
14Again, in May 2019, just three months before these offences, you were sentenced for your role, along with three others, in an extortion with threats to injure and other offences that arose from a violent endeavour to collect a drug debt. These are not all your past offences but are some of the most relevant. Of course, you do not fall to be repunished for your past crimes. Rather, because of the nature and circumstances of your past crimes, it makes your moral culpability for these crimes higher. It also means that the community, and in particular police, need to be protected from you and your engrained behaviours.
15To return to your other personal circumstances, you are now 27, the youngest of three. Your parents separated when you were 13 but, over the years, you have maintained a good relationship with them. Your family were in court, or endeavoured to be in court, at all times to provide you with support and are here again for this sentence. Your current partner stands by you.
16You grew up and went to school in Sunbury. School was difficult, both in terms of getting a valuable education and in socially maturing. You were bullied and left school at a young age in year 9. Assessments of your level of intelligence establish that you have a mild intellectual disability. At school you needed specialist assistance. In recent years you have been placed on a justice plan, making it clear that you have a certified intellectual disability.
17What has dominated your life from a tragically early age of about 12-13, is addiction and constant use of many types of drugs. You commenced by smoking cannabis and this remains a regular feature of your life. You moved on to the use of the dangerous drugs amphetamine and methamphetamine while still in your early teens. You became a heavy and regular user of ice. You have used heroin, cocaine, GHB and LSD but not as regularly as the other drugs. Alcohol has not been a significant a problem as drugs. You say you were drug affected at the time of these offences. This is not surprising but probably increases the risks of you doing something dangerous or risky without thinking it through.
18
It was said by the medico-legal psychologist Ms Lechner who saw you, that your past offending has been in the context of a serious drug addiction and so too was this offending. She noted you have symptoms of depression and anxiety, but that said, you were doing all you can in custody to improve your prospects once you are released. Your urine tests in prison reveal you are drug free, which is important, given the length and level of your addictions. You reported to
Ms Lechner that you have a keen desire to turn your life around, give up drugs and severe ties with all drug using associates. Those are good signs. So too is your remorse of getting involved in this very dangerous, violent offending.
19The lengthy period that you have spent on remand has been difficult. Given the restrictions imposed due to the COVID-19 pandemic at the commencement or the early part of 2020. You had visits before 2020 and your family kept in touch by phone and in lockdown but, nonetheless, with your intellectual disability, jail for you is onerous.
20
Taking all your rehabilitative efforts while in custody into account, your counsel
Mr Backwell nonetheless conceded that your overall prospects for reform were guarded. I agree. You will need considerable support when ultimately you are released. You have, too often, in the past fallen back into offending after being in prison or placed on a Community Corrections Order. On this occasion, your prison term must be a lengthy one because of the seriousness of your crimes. It is hoped that the time away from drugs clears your thinking and makes you realise what you will miss if you keep offending. That said, I am wary of overemphasising deterrence to you or, indeed, generally. Your intellectual disability means you are not as suitable as a candidate to send the message of deterrence to others. You are different because of your low intelligence and I must ensure this important aspect of your circumstances is not overlooked merely because of your recidivism.
21
However, the other side of that coin was properly recognised by your counsel
Mr Backwell. By that I mean, your intellectual disability, being a lifelong affliction, makes you more dangerous or prone to offending like you did on this occasion. Thus, as I have mentioned, the community must be protected, especially the police. While I moderate the weight to be given to deterrence and, to a very limited degree, to denunciation due to your intellectual disability, I must give more weight to the protection of the community. This is achieved by incapacitation but also by ensuring the potential for support on parole on your release. I was told that you have successfully in the past completed parole, both youth parole and adult parole, following a sentence imposed by a judge of the County Court when you were about 21 or 22 years old.
22In this case, your plea of guilty is of real value, especially in circumstances when jury trials have been suspended and remain uncertain due to the pandemic. There must be some cumulation due to the separate offending. Also, as mentioned, is the fact that you were on a Community Corrections Order and bail at the time. I must ensure these matters, however, do not lead to double punishment.
23Doing the best I can in respect of these matters I impose the following terms of imprisonment.
· Charge 1, you are sentenced to a term of imprisonment of four years and four months.
· Charge 2, you are sentenced to a period of imprisonment of 16 months.
· Charge 3, you are sentenced to a term of imprisonment of six months.
· The summary matters of committing an offence while on bail, you are sentenced to a term of imprisonment of one month.
· For the drive while disqualified, a term of imprisonment of one month.
24Mr Papa, what I order is that six months of Charge 2 and two months of Charge 3 are cumulative upon each other and upon the sentence I imposed on Charge 1. That, if my maths are right, leads to a total affective sentence of five years and I fix a minimum non-parole period of two years and 10 months. You have served already 652 days in custody, attributable to this offending. Thus, that number of days having been reckoned, I declare that 652 days is part of the sentence that I have just imposed. I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have already served 652 days of the sentence imposed.
25
Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of six years and nine months, with a minimum
non-parole period of four years and 10 months.
HIS HONOUR: Is there anything else that I need to - any further order I need to make?
MR BACKWELL: Yes, Your Honour. Can I make one inquiry.
HIS HONOUR: Yes.
MR BACKWELL: Your Honour mentioned Charge 3.
HIS HONOUR: Yes.
MR BACKWELL: There was no Charge 3 for Mr Papa on the indictment.
HIS HONOUR: Sorry, I meant the possession of the - I'm so sorry I get so muddled. That's the possession of the proceeds of crime charge to the summary matter.
MR BACKWELL: That’s Summary Charge 10.
HIS HONOUR: Yes, that's what I meant. Six months with two months added onto it. I apologise for the imprecision there and thank you for correcting it. There's two months added to the overall sentence for the drive while disqualified and the bail matter. The sentences are concurrent.
MR BACKWELL: Yes, thank you, Your Honour.
HIS HONOUR: Is there anything further? Thank you for that. The maths adds up. It's reasonably straightforward in this matter, I thought.
MR FISHER: Yes, it does, yes. The only other matter, Your Honour, was the discretion Your Honour has in terms of licence. Interference of a licence under s.89.
HIS HONOUR: Yes, I don't (audio malfunction) Is it a discretion from beginning to end or just the amount of time?
MR FISHER: That's discretion from beginning to end.
HIS HONOUR: Yes. What's the Crown say about this? He's doing five years.
MR FISHER: I know, so the practical effect is probably very limited, but in order to reflect the fact that the accused man was in fact the driver and that's in relation to Charge 1 - - -
HIS HONOUR: Yes, I think that's right. Yes.
MR FISHER: - - - it's not in relation to the drive whilst disqualified charge.
HIS HONOUR: Yes, he has a bad driving history. I'll disqualify - cancel all licence, disqualify him from driving for 12 months.
MR FISHER: Yes, as Your Honour pleases.
HIS HONOUR: Thank you. Mr Backwell? Other people that are coming online just have to remain quiet. This is a formal court proceeding, thank you.
MR BACKWELL: Nothing further, Your Honour.
HIS HONOUR: Thank you. I thank counsel for their very considerable assistance in this matter and for all the parties that attended to provide support and obeyed all the difficult technical aspects of doing these things online. Mr Backwell, do you wish to utilise this to speak to your client briefly?
MR BACKWELL: If I may, sir, yes.
HIS HONOUR: Yes, all right. Well, my staff will supervise that. That will mean everyone else has to come off. Everyone else has to come off and allow
Mr Backwell to speak to Mr Papa about the sentence. Thank you, I'll leave now.
MR FISHER: If Your Honour pleases.
MR BACKWELL: If Your Honour pleases.
- - -
0
0
0