Director of Public Prosecutions v Pera

[2016] VCC 1263

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01958

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM MAURANGI PERA

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2016
DATE OF SENTENCE:	23 August 2016
CASE MAY BE CITED AS:	DPP v PERA
MEDIUM NEUTRAL CITATION:	[2016] VCC 1263

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – attempted armed robbery – threatening victim with shovel – criminal damage.

Cases Cited:R v Ellis [1986] 6 NSWLR 603, 604 (Street CJ); R v Tiburcy & Ors [2006] VSCA 244; Boulton & Ors v R [2014] VSCA 342.

Sentence:Community Correction Order imposed.        

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Plummer	John Cain, Solicitor for Office of Public Prosecutions
For the Accused	Mr A. Malik	Victoria Legal Aid

HER HONOUR:

1William Maurangi Pera, you have pleaded guilty before me to one charge of theft, namely of a shovel.  One charge of criminal damage, namely damage to a rear tail light of an unknown vehicle and one charge of attempted armed robbery of a cigarette.

2The charges are serious and that is reflected in the maximum penalties that are prescribed by Parliament and that is, ten years' imprisonment for the theft and criminal damage charges and 20 years' imprisonment for the attempted armed robbery charge.

3In addition, you admitted your prior criminal history and I note that there were three court appearances at the Melbourne Children's Court.  The first appearance was on 15 December 2011. That related to multiple offences including a relevant robbery charge, for which you were placed on a Youth Supervision Order for ten months. 

4The second appearance was on 3 May 2013 in respect to further offending, including unlawful assault, recklessly cause injury and affray and, without conviction, you were placed on a nine month Youth Supervision Order.

5Finally, on 5 July 2013, you were placed on a good behaviour bond for five months in respect to driving offences.

6At the time of this offending, you were aged 18 and you are now 19.  The victim in the matter Lonny Meunier was 51 and he has a cognitive impairment.

7I will now proceed to sentence you on the basis of the prosecution opening that was read out to the court at the plea hearing.

8Your offending relates to an incident that occurred on Sunday 2 August 2015 at around 7 pm in Pakenham. Mr Meunier was waiting at a bus stop when you asked him for a cigarette.  He told you he did not have any.  You became aggressive and started yelling at him using swear words.  He became very upset and explained again that he did not have any cigarettes, however you continued to abuse him.  You told him that you would go and get a shovel and hit him on the head with it.

9You then walked over to a construction site where you retrieved a shovel that you had left earlier and went back to the bus stop.  You held the shovel up over your shoulder and approached Meunier again.  When you were about one or two metres away from him you said words to the effect, "I told you that I would get a fucken shovel.  Now give me a cigarette or I'll take your fucken head off".

10Meunier became very upset and asked you repeatedly to leave him alone.  Fortunately, he was able to escape from you and walked quickly to a nearby railway station where he reported the incident to protective service officers, who then called the police.

11Eventually you were arrested nearby by police, and at the time, you were noted to be crying, shaking and very emotional.  You were taken to the Pakenham Police Station where they conducted a formal record of interview.  You made full admissions.

12I have been informed about your background.  You were born in the Cook Islands and as a young baby, your parents moved to New Zealand.  They remained there until your parents separated in around 2007.  You then came to live in Australia with your mother.  Your father remained in New Zealand. 

13You are one of five biological children born to your parents' relationship and your mother has two step-children.  You lived with your mother and attended various schools and completed up to Year 8.  You have very limited formal education.  You completed Civil Construction Certificates II and III at the beginning of 2015 and you obtained some work with your uncle and worked as a scaffolder for about two months, and then you were employed in a site clearing role for about seven months.

14Your father passed away in New Zealand in 2011 when you were about 15.  That roughly coincided with the commencement of your offending.  You had not seen your father since leaving New Zealand, but prior to coming to Australia, you did have a good relationship with him.  His death had a profound effect upon you.  Unfortunately, you have never had any grief or psychological counselling.

15You began using cannabis from age 15 and then more recently, you began using the drug ice heavily and you were using daily at the time of this offending.  At the time of the offending, you were not employed.  You were living with some family members in Pakenham and you were not coping very well.

16I am satisfied that the offending is immature, spontaneous and opportunistic.  It is imperative that you address what it was that caused you to engage in such actions.  You need to deal with both anger and your drug addiction and I propose to impose a disposition that will address that behaviour.

17I noted that subsequent to these events on 25 February 2016, you were the victim of a stabbing. You suffered three stab wounds to the upper chest and neck area following an unprovoked assault by unknown assailants.  You were hospitalised for four days and then discharged and, after that, you left Victoria to live in New South Wales because you feared for your own safety.

18You returned to Victoria in about mid-July and on 12 August 2016, you contacted the Youth Support and Advocacy Service (YSAS) with whom you had previous dealings through your Children's Court orders.  They recommended that you present to the police because of an outstanding warrant.  You were then placed on remand and you have been in custody since that time.  This is the first time you have been in adult custody and the experience has been a very difficult one for you.

19You have been stood over whilst being in prison and some of your personal items have been taken.  You have expressed a desire to the court and a willingness to undertake a Community Correction Order. 

20In formulating the appropriate sentence, I have had regard to a number of matters in mitigation.  I have had regard to the early plea of guilty. The Crown accepted that the plea was entered at the earliest stage possible. 

21I have taken that fact into account in your favour.  Your plea represents a willingness to facilitate justice and is indicative of genuine remorse.  You spared the victim, Mr Meunier, the further trauma and inconvenience of having to come to court to give evidence on your trial.  There is real utility in your plea and the sentence will be discounted accordingly.

22In addition, you were fully cooperative with the police right from the time of your arrest.  You gave full and frank answers and essentially told police all the information that comprises the evidence the subject of the first two charges on the indictment.  Having regard to the principles expressed in the decision of Ellis,[1] you are entitled to considerable leniency for your confession.

[1]R v Ellis [1986] 6 NSWLR 603, 604 (Street CJ).

23The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and making a confession of guilt for that offence and that principle has long been followed.[2]

[2] Ryan v R (2001) 206 CLR 267, 272 (McHugh J), 295-296 (Kirby J); R v Brazel (2005) 153 A Crim R 152, 159 [21] (Callaway JA); R v Doran [2005] VSCA 271, [14]; R v CLP [2008] VSCA 113.

24Your genuine remorse is further evidenced through the full admissions made during the record of interview.  You told police that you were exploding at home and needed a walk.  You saw a shovel in a black ute that was parked on your street.  You took the shovel and took out your frustrations and anger on the person at the bus stop and threatened him with the shovel.

25You told police that you asked him for a cigarette and when he said "No", you became more tense.  You threatened him that you would go and grab the shovel across the road if he did not give you a cigarette, and then you went and retrieved the shovel and threatened him in the way that I have already described.

26Fortunately for you, you did not physically harm the victim and he was able to secure help from the protective services officers who were nearby. 

27There is no doubt in my mind that your actions William on this occasion would have been terrifying for this fellow, who was minding his own business just sitting at the bus stop, waiting for his bus. 

28When asked for your reason for the offending, you told police that you were on ice and that it was the effect of drugs.  You offered an apology and said that you were sorry and remorseful for your actions. 

29The fact that you had been taking ice and you were angry and finding it difficult, does not provide any excuse for this appalling behaviour. The victim was entitled to be safe in the public space where he was and he did not need to be threatened by you, in the manner that you did. This was a very stupid act on your behalf, and is reflective of very immature behaviour.  On behalf of the community, I must formally denounce your behaviour, that is, say that it was wrong and impose just punishment.

30Fortunately for you, your mother is prepared to offer you the opportunity for you to go and live with her in Maryborough, in country Victoria.  She is living there with one of your sisters and is currently working.  She has been present during the plea hearings and is willing to support your rehabilitation efforts.

31Overall, because of the combination of factors that were highlighted by your counsel Mr Malik, I consider the most appropriate disposition is a Community Correction Order.

32I have had regard to your relative young age.  The fact that you are still a youthful offender and your rehabilitation is paramount. 

33I have also had regard to your early cooperation with police, your early plea of guilty and your expressed genuine remorse, the fact that you offered an apology to the victim and also finally, your prospects for rehabilitation.  I do regard that you have good prospects for rehabilitation, provided you address your anger management issues and the drug issues and, to an extent, alcohol problems.

34You have shown in the recent past that you can be law abiding and I am referring to that time when you were living in a structured environment with the pastor at the House of Refuge in Hallam.  You managed to stay there and remain crime free.  You were helping him and your life was described as “great”.  It was only when you started using drugs again, that your life spiralled out of control.

35I have also had regard to the fact that even though your attendance with YSAS has been sporadic and not fully engaged, nonetheless, you have continued your relationship with YSAS.  Mr Jess McCauley in the letter he wrote to the court on 16 August 2016, confirms that YSAS is willing to continue working with you and fortunately they do outreach work in Maryborough, so they will be able to continue to support you with education support and counselling, and significantly, your drug and alcohol problems.  So that is good.

36It is also good that you took their advice and presented yourself to the police when you went there requesting assistance for your legal matters, financial aid and general support on Friday 12 August.  All in all, I think you really do have reasonable prospects of success, but it is all centred on you and whether or not you comply with your orders.

37Mr Plummer, on behalf of the Crown, sought a combination of an immediate custodial sentence, to be followed by a CCO.  He highlighted the fact that it was violence against a vulnerable victim who was sitting in a public place waiting for public transport.  He emphasised the need for the punishment to reflect general deterrence and special deterrence, and also the need for community protection and he highlighted your relevant prior criminal history.

38He conceded that you were a youthful offender and that rehabilitation was an important consideration. Notwithstanding your prior court appearances for crimes of violence, that are of relevance, I consider that the combination of the features that I have already identified in mitigation do mean that a CCO ought be imposed.

39I am satisfied having regard to the objective gravity of your conduct and your personal circumstances, that a properly crafted CCO is capable of satisfying all the sentencing principles, whilst offering you the best prospects of rehabilitation in the future and as was said by the Court of Appeal in R v Tiburcy & Ors:[3]

"A sentencing court must look to the future as well as to the past.  There is very great benefit to the community at large as well as to individuals themselves and their immediate families if future criminal conduct can be avoided".

[3]R v Tiburcy & Ors [2006] VSCA 244.

40Therefore, in sentencing you, I have considered your ultimate rehabilitation to be of very considerable public interest.  The sentence I have crafted focuses on both punishment, but also rehabilitation. 

41I am also mindful of the guideline sentencing judgement in Boulton v R,[4] where the Court of Appeal spoke about the negative impacts upon imprisonment and youth. 

[4]Boulton & Ors v R [2014] VSCA 342.

42It is accepted in this state that a CCO is intrinsically punitive and is capable of deterring you and others.

43I propose to make the order in the terms that I have already outlined.  I note, William Pera, that you have already confirmed to me that you understand the mandatory terms that apply to all Community Corrections Orders and you understand the further special conditions that I have proposed and you have told me that you understand the effect and conditions of the order and you consent to it being made.

44In respect to the three charges on the indictment, you will be convicted and an aggregate sentence of a 15 month CCO will be imposed commencing on today's date and ceasing on 22 November 2017.  It is a condition that you must attend the Bendigo Community Correctional Services office within two clear working days from today's date.

45In addition to the mandatory terms that I have already explained, you must perform 75 hours unpaid community work.  You must be under supervision for that period of 15 months and you must undergo treatment and assessment including testing for drug abuse and alcohol abuse as directed and you must also participate in programs and/or courses that address anger management as directed.  Finally, you must attend for Judicial Monitoring before me at the Bendigo County Court on 22 November 2016 at 10 am. 

46I have signed the order and I will give that to my associate to get you to sign it shortly. 

47The ancillary orders, I make the order pursuant to s.464ZF for the taking of a forensic sample.  Have we got that order there? 

48MR FISHER:  Yes, Your Honour.

49HER HONOUR:  Yes.  If we could get that.  You will have to go to the Maryborough Police Station which is at 55 Clarendon Street, Maryborough within the next four weeks to provide a sample.  The process is that a policeman will give you a cotton bud to put inside your mouth and then you give it back.  Provided you do that, there should not be any issues.  But I do have to tell you, if you do not consent to the taking of a mouth scraping under the supervision of a member of the police force, then police may use reasonable force to enable that to be conducted.  I have yet to hear of anyone who has been forced.  It is a very straight forward procedure and provided you comply, it should not take too long.

50All right, I have signed those orders. 

51I have noted that there is 11 days pre-sentence detention.  It is not being declared, but I will note it in the revised sentencing remarks so that it is there on the record. 

52In terms of a s.6AAA declaration, where it is a CCO, do you require me to make a s.6AAA declaration?  Because my reading of the Act says it is not necessary.

53MR FISHER:  No, Your Honour.

54HER HONOUR:  No, all right.

55MR FISHER:  I agree with that.

56HER HONOUR:  Yes, good, thank you.  All right, now I make the order pursuant to s.464ZF in respect to the taking of a forensic sample because of the seriousness of the circumstances of the offending.  The order is by consent.  I consider it to be in the public interest and the disposal order has to be signed too.  I think that covers everything does it not?

57MR MALIK:  Yes, Your Honour.

58MR FISHER:  Yes, Your Honour.

59HER HONOUR:  Very well, all right.  What happens now Mr Pera, I will get you to sign the order.  My associate will accompany Mr Malik and get you to sign it.  All right, so that concludes the formal court orders.  What will happen is I will have to sign the orders and the orders will have to be given to Corrections and I assume that once everything has been formally recorded, then Mr Pera will be released from custody here today?

60MR MALIK:  Yes, Your Honour.

61HER HONOUR:  All right, we will get the court order signed as soon as possible and I just thank your mum and your uncle for coming to give support.

62[Addressing mother] I do want to keep a close eye on William. If there are any issues whatsoever, can you please immediately notify the Community Corrections officers in Bendigo?

63I think your son has a lot of issues, but with appropriate support, he will get through this and it has been demonstrated to me in the past, people not dissimilar to your son have made it through these orders and it has benefited them greatly.  It is going to be tough for everyone I think in the initial little while, but I do ask if there are any problems, immediately notify Corrections because I think William needs quite firm structure at this time. 

64All right, thank you.  We can adjourn.

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