Director of Public Prosecutions v Pasi
[2012] VCC 1270
•29 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01242
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER PASI |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2012 | |
DATE OF SENTENCE: | 29 August 2012 | |
CASE MAY BE CITED AS: | DPP v Pasi | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1270 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Armed robbery, causing serious injury recklessly; assault on youth in street, facial fractures, laceration and abrasions, severe facial swelling and pain, loss of consciousness at scene; victim left in street by offenders. Young offender, no prior convictions, unstable childhood with impoverished education and limited cognitive abilities; exposure to violence within family.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Ayres | Office of Public Prosecutions |
| For the Accused | Mr Makary |
HER HONOUR:
1 Christopher Pasi you have pleaded guilty to one charge of armed robbery and one charge of causing serious injury recklessly. The maximum penalties for these serious offences are 25 years and 15 years imprisonment respectively.
2 Because you are still a young man, aged 19, your rehabilitation is a very important matter for me to take into account in sentencing you and so I am going to order that you spend further time in a Youth Justice Centre where you are presently undergoing a sentence for other matters.
3 Before going into any detail about that sentence I shall set out the circumstances of the offences. You are a Samoan man and on the evening of 14 May 2011 you went to a social function attended by other Samoan people, including the two co-offenders, Emanuel Togafua who was aged 25 and Telea Ah-keni who was aged 16.
4 Later that evening, the three of you and another friend left in a car driven by Togafua. At 1 am on 15 May he stopped the car near a pedestrian Mauriz Madej who was walking home from the Springvale Railway Station. Togafua remained in the car while you and Ah-keni approached Mr Madej. Ah-keni was armed with a bottle with which he hit Mr Madej to the back of his head and one of you demanded his mobile phone. When Mr Madej tried to escape he was knocked to the ground and kicked to the head and body, causing him to lose consciousness. His wallet and cash were stolen and in an unconscious state he was dragged along the ground and left behind a nearby telephone box. You and the other co-offenders then left in the car.
5 It was not until almost 2 am that Mr Madej regained partial consciousness and was able to ring a friend who came to assist him and an ambulance was called. He woke up in hospital suffering multiple abrasions and bruises to his face, abdomen, arms and knees with a laceration to the head and fractures to the face, specifically to the left orbital floor and the left maxillary sinus.
6 When you were arrested and interviewed by the police, you denied any involvement but you admitted having been drunk that night and said you were unable to recall what happened. You were charged with armed robbery and with intentionally causing serious injury, although those charges were not laid until much later and I will return to that. These charges were eventually resolved to recklessly causing serious injury after the co-accused had pleaded guilty to those charges.
7 I note that it is conceded by the prosecution that there was a long delay until you and Mr Togafua were charged with this offending in April 2012, with no explanation for that delay being offered. Mr Ah-keni had been charged in July 2011. He was sentenced in October to six months in a Youth Justice Centre. Togafua was sentenced by me in July this year to 27 months in prison with a non-parole period of 18 months.
8 You and the two co-accused, together with other offenders were involved in a further spree of offending over a period of 27 hours, spanning three days from 17 to 19 May 2011, inclusive. That resulted in you being sentenced by His Honour Judge Howie of this court in November last year, to two years and six months in youth detention which you are now serving. At the moment your expected release date is 7 November this year.
9 I turn now to your background. You have had an unsettled childhood, born in New Zealand, growing up there and in Victoria and Western Samoa. Your father left the family when you were very young and your mother later re-partnered. You were one of a large family of both full siblings and half-siblings and physical discipline has been a part of your family life. Indeed, you were assaulted by a family member after these offences.
10 You left school in Year 9 having been asked to leave because of fighting, the cause of which was racial taunting towards you. The family went to Western Samoa at this time and you stayed on with an uncle, working on his farm for about three years or so.
11 On your return to Melbourne in 2010 you gained employment in a warehouse which ceased when you were arrested for the offending which had occurred on 17 May. You spent a short time on remand in adult prison. After that, whilst on bail for those offences, you were given a youth worker and you attended YSAS, the Youth Substance Assistance Service, which deals with drug and alcohol counselling. You had begun experimenting with alcohol in your early teens and you had been permitted to drink frequently while in Western Samoa. Alcohol was a feature of all the offending in May last year and appears to have occurred in the context of peer group pressure whilst intoxicated.
12 You told Mr Cummins, the psychologist who assessed you recently, that alcohol abuse had caused you to become involved in fighting; had caused you to lose jobs and of course it led you into this offending as well. So it seems that you do have some insight into the consequences of drunkenness and you have reduced your alcohol intake because of that. You have denied belonging to a gang, rather that you associated with other Samoan youths and this association has led to the label of a gang.
13 Mr Cummins formed the view that you do not have an antisocial personality style, nor an anti-authoritarian manner and that increases your prospects for rehabilitation. Mr Cummins observed that your intellectual functioning is severely limited, perhaps by your poor education and I understand that you are now taking advantage of the opportunities to address that whilst you are in detention. Perhaps that will help raise your self-esteem which Mr Cummins notes is low and that has affected your conduct in the past he believes, in terms of alcohol abuse and violent behaviour in the context of peer group pressure.
14 Certainly the reports I have read from those supporting you, confirm that you have taken positive steps by taking courses and trying to address the causes of your criminality. The sentence that I shall impose today will mean you will spend further time in detention and you will be able to continue to put that time to good use.
15
In determining the appropriate sentence I take into account your plea of guilty which entitles you to a discount because it has avoided the need for a trial and the need for witnesses to have to give evidence. I also accept it as an indication of remorse and you have expressed your regret, your sorrow to
Ms Marrov, your counsellor as part of the GRIP program. That is a program teaching social skills to young men who commit violent crime and you have been part of that program, quite successfully it would seem.
16 The long delay in charging you has resulted in the loss of an opportunity for some concurrency with this sentence and I also take that into account. If you had been charged in a timely manner, you could have been dealt with for these charges last November by His Honour Judge Howie. Issues of parity, totality and proportionality all arise in relation to this sentence as well.
17 Although you have not spent any time in custody in relation to these charges, I can take into account in a general sense that you have been in custody since last November. I have already referred to the sentences imposed upon the co-offenders. Both of them were sentenced for other matters at the same time and so parity, which is another word for sentencing you in a similar way, is not a straight forward matter. However, you have been assessed as suitable for a further sentence in youth detention and I have decided that this is appropriate.
18 In committing these crimes you took an active part in hurting the victim very badly. He had every right to be on the street as he was and to be safe. But you attacked him violently and caused him great pain and a number of injuries. You and the others then left him unconscious in the street and went on your way. That behaviour deserves a substantial period of detention but it will be reduced because of all the matters I have outlined which justify some leniency.
19 Others who might be tempted to treat people violently should know from cases such as this, that they can expect to have their liberty taken away from them. As I said at the beginning, because you are still young your prospects for rehabilitation are very important as providing the best means of protecting the community from violence in the future. In addition, you are said to be immature and impressionable and prison would be an unsuitable environment for you.
20 Would you stand now please Mr Pasi. Accordingly, I sentence you to 18 months in a Youth Justice Centre, six months of that time is to be served in cumulation upon the sentence imposed by Judge Howie on 25 November 2011. If you had pleaded not guilty to these charges I would have sentenced you to two years in a Youth Justice Centre.
21 Be seated for a moment please Mr Pasi while I have a short discussion with counsel. Mr Ayres, the order that I have made, does that provide for the intended outcome as far as you know?
22 MR AYRES: It does Your Honour. The only mechanical difference that I suppose may be made is to specify the sentences for each count. But the outcome certainly in terms of the cumulation, can be ordered the way Your Honour has ordered it. However it is perhaps in the way the other sentences were imposed as well, it is more appropriate to specify each count.
23 HER HONOUR: Rather than an aggregate. I can announce that that is an aggregate sentence or I can separate them.
24 MR AYRES: That is so. Ordinarily they are separated in this court.
25 HER HONOUR: They are, that is true but there are historical reasons for that.
26 MR AYRES: Yes I suppose that is so as well.
27 HER HONOUR: I will give that some thought though Mr Ayres. Mr Makary do you have any comment to make one way or the other?
28 MR MAKARY: I would not seek to add anything further Your Honour.
29 HER HONOUR: Pardon?
30 MR MAKARY: I would not seek to add anything further.
31
HER HONOUR: Just give me a few moments please. Mr Ayres I will take up your suggestion and give separate sentences for each of the charges. Therefore the charges will read as follows. You need not stand up again
Mr Pasi, just remain seated thank you and I will explain this to you.
32 Charge 1 on the indictment is the charge of recklessly causing serious injury. There will a sentence of 12 months for that charge and that will be the base sentence. Charge 2 on the indictment is the charge of armed robbery. There will be similarly a sentence of 12 months. Six months of that sentence will be served cumulatively upon Charge 1 and that results in a total effective sentence of 18 months. As I say, six months of that time is to be served in cumulation upon the sentence imposed by Judge Howie last year.
33 Any other matters?
34 MR AYRES: No Your Honour has announced the s.6AAA and there were no orders sought in this matter Your Honour. Thank you.
35 HER HONOUR: Yes I have done that. Mr Pasi can be taken now thank you officer.
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