Director of Public Prosecutions v Pitone and Toby

[2014] VCC 383

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00671 CR-13-00665

DIRECTOR OF PUBLIC PROSECUTIONS

v

LELOALOA MITCHELL PITONE
HONE TOBY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2014
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v Pitone & Toby
MEDIUM NEUTRAL CITATION:	[2014] VCC 383

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Fitzgerald
For Accused Pitone	Mr B. Johnston
For Accused Toby	Ms D. Lamovie

HIS HONOUR: 

1Leloaloa Mitchell Pitone and Hone Toby, you have each pleaded guilty to an indictment charging you, Mr Pitone, with four offences; firstly theft of two motor vehicles between 16 June 2012 and 18 June 2012; secondly, an armed robbery on a Mr Dhindsa on 18 June 2012; then shortly afterwards, another armed robbery on a Mr Asfew; and fourthly, another armed robbery on a Mr Ravinder Singh. 

2You, Mr Toby, have pleaded guilty to the charge of theft of the two motor vehicles and to each of the two armed robberies, the subject of Charges 3 and 4; and you Mr Toby, have admitted a prior court appearance in the Children's Court on 31 May 2012 for which I note you were released upon entering into an accountable undertaking to be of good behaviour.  Your plea to these offences puts you in breach of that undertaking, although of course the offences for which you appeared were of much less serious kind than the armed robberies, one of them involved theft of a motor vehicle. 

3The prosecution has tendered and relied upon a summary of prosecution opening the plea, which was read to the court this morning.  I am not going to go through that in detail, suffice to say it shows that in the early hours of the morning of 18 June 2012, you two with others, were in two stolen cars.   The group were looking for taxi drivers to rob. 

4In the vehicles were various weapons which included baseball bats and in each of the armed robberies that took place, the group of which you were part, attacked the taxi drivers concerned, after deliberately bringing their vehicles to a halt and preventing their escape. 

5I have already described the behaviour as utterly appalling, shocking behaviour and behaviour that was representative of more of a group of wild dogs than decent young people, which you purport to be. 

6I am sure that each of you are now ashamed of your conduct on that night.  It is accepted that you did not actually commit any of the acts of violence using the weapons and that you were participants by encouragement and continued voluntary presence as part of the group. 

7You, Mr Pitone, were aware of what was going on in relation to all of the three robberies that are dealt with on the indictment, whereas it is accepted by the prosecution that you, Toby, only became aware of what the group was about after the armed robbery, the subject of Charge 3. 

8I proceed to sentence you, not as one of those who committed the actual acts of violence or got out of the car with the baseball bats or actually carried out the attacks on the taxi drivers.   I sentence you purely on the basis that you were part of a joint venture that was taking place when those armed robberies - to which you pleaded guilty - took place. 

9Nevertheless, your participation in that and your continued encouragement of the others who were the main actors in the events, was deplorable and you should be ashamed. 

10The prosecution has also tendered and relied upon Exhibit B, which are victim impact statements from various of the victims; two of those victim impact statements were from the owners of the two vehicles that were stolen, but the third was from the victim of the armed robbery, the subject of Charge 3 Mr Asfew.   It shows that not only has it scarred him and made him frightened to work at night as a taxi driver, but it has also affected his family. 

11I have no doubt he and each of the other victims of the armed robberies will live with the events of that night for a very considerable period of time, if not, the rest of their lives.  It is inevitable that they must have been terrified out of their wits by your conduct that night - that is you and your co‑offenders - and feared for their lives.  As I pointed out during the course of plea, any right-thinking member of the public, even a person of firm disposition who was watching what was going on, could not have failed to have been utterly appalled by what they saw. 

12It is accepted on your behalf, each of you, that these are very serious offences and offences which have to be treated seriously by the court in determining an appropriate sentence. 

13Turning to matters personal to each of you, first dealing with you Mr Pitone, your counsel provided me with a helpful outline of submissions on the plea, which is Exhibit P1, together with a report from Mr Delaney, a neuropsychologist and two reports from Warren Simmons, psychologist; one dated 14 June 2012 which has been prepared for other court proceedings, which arose from other offences for which you have since been dealt with; and a more recent report dated 17 March 2014. 

14In the submissions and in the history that is outlined in those reports, it is clear that you come from a good family and you have had many opportunities in life.  You still have considerable family support.  You have moved around a bit and no doubt, your schooling has been somewhat disrupted by it being spread between American-Samoa and New Zealand primarily, but I note from Mr Delaney's report that you were tested by him and found to have a full scale intelligence quotient of between 69 and 78, which puts you in the borderline range, but on p.4 of his report, Mr Delaney goes on to say:

"He does not meet the criteria for diagnosis of mild intellectual disability, rather his cognitive abilities are falling just above the mild intellectual disability range defined as an IQ below 70.  The fact that he completed Year 11 in a mainstream school…"

15Which I think is not quite right because I think you left part way through Year 11.

"…and without having repeated or failed any grade levels also supports the conclusion that he does not meet the criteria for mild intellectual disability.  Nevertheless, his general cognitive functioning is below the level of most individuals in society."

16Obviously the testing was handicapped to some extent by language difficulties.   So it is to be accepted that the precision with which the results of that testing are to be measured is perhaps not as accurate as usual.   But nevertheless it seems to me that it is clear and Mr Delaney indeed says this, you do have the capacity to distinguish right from wrong and you must have realised during the offending conduct, what was going on was very wrong. 

17It seems that you do not have any antisocial personality traits according to Mr Simmons, or any psychiatric disturbance and Mr Simmons points out that you are remorseful for your actions and that you have, or showed to him, that you had empathy for your victims.  You were able to indicate to Mr Simmons that you need to choose your friends more wisely, although Mr Simmons went on to say it is not clear that you have the ability or skills to do that. 

18Mr Simmons's opinion was that you were immature and naïve, still struggling to adapt to a culture where you are not able to interact in a very verbal manner and you are reliant on others to tolerate your inability to inter-react and to communicate poorly.  He stresses the opinion that you may well have been a passive player feeling unable to avoid behaviour which you clearly realised was unwise. 

19You have been fortunate, I think, to have met in more recent times whilst you were on bail, Ms Brown, who gave evidence in court today and I have found her to be an impressive witness.  It seems clear that she has become part of your family and wishes you to give you every support and help when you are free to rebuild your life after serving the inevitable period of custody that will result from my sentencing today. 

20That, along with the support that you clearly have from the family that has turned up to support you today, would suggest that you have I think, reasonable prospects of rehabilitation.  You have probably got a few issues to deal with, with alcohol and it seems that if you are able to get work and hold down a job that you have capability to be a good worker and to remain focused on your work. 

21Ms Brown basically says, I think, that she will kick you out or she will get rid of you, find somebody better if you behave badly again.  So the choice is yours in the future I guess; you are going to have to knuckle down and set about thinking about what you are doing and leading an honest and decent life.  If you do that, it will be a happy life; if you do not, it will not. 

22But I think you have a real chance and it will be up to you to take it.  I think it is fair to say that water has gone under the bridge.   It is not that far short of two years since the offences occurred. 

23Quite a lot has happened; a number of sentences have been imposed upon you and you have been to Youth Justice Centre for nine months.  It seems that you having done your stint there you were not, at least when you appeared before Her Honour Judge Cotterell in this court in the latter part of last year, found to be suitable for further Youth Justice Centre order.   Therefore it is not put on your behalf that that is an appropriate sentence for me to impose upon you. 

24I think it is a fair point that I have to look at the totality of your offending conduct and the various sentences that have been Imposed upon you in assessing what is an appropriate sentence for me to impose upon you today and I propose to do that. 

25You have pleaded guilty and that is very much to your credit.  I know it was a long time coming and it was a negotiated plea, but fair enough, you have taken the chance of pleading guilty in the knowledge that you faced a term of imprisonment.  You have saved the State the cost of a trial and the witnesses the trauma of having to give evidence in full at any rate at a trial and having to relive the events of 18 June 2012. 

26Again, I think that is very much in your favour and you do get full value for the discount that should be given to you for that plea of guilty. 

27Also, I am satisfied that you are genuinely remorseful and ashamed of the conduct that you engaged in that night and the impact that that has had on your family; and of course has put in jeopardy, relationships with Ms Brown.  Hopefully, she will hang around for you, still think that you are worth it, but you are going to have to do your best to get parole at the earliest reasonable opportunity.   That will mean doing what you can whilst you are in custody to toe the line, behave yourself and give yourself the best chance of getting parole. 

28I will take all those matters into account in determining an appropriate sentence.  You have already spent a very significant period of time in adult prison as well as doing your nine months sentence in the Youth Justice Centre at Malmsbury. 

29Moving on to the matters personal to you, Mr Toby, you too come from a good family and your family have turned up in droves to support you.   That I think, speaks volumes, for the fact that you too have had a lot of good fortune in life with your family.  It is a pity you have ended up where you are today and I think it is clear that you are ashamed, not just for your conduct, but for the effect that all of that has upon your family and the shame that it brings to others who have sought to support you. 

30Your counsel provided me with a detailed defence submission and mitigation and a number of other documents; a letter from Dale Doran of the Youth Junction dated 7 December 2012; a letter dated 14 November 2005 from an otolaryngologist named Mr Solcald, that of course deals with your hearing disability; also a letter dated 6 February 2014 from Trish Alexander of the Department of Human Services; a Youth Justice Centre Suitability Report authored by Ms Alexander and Mr Toke, which indicates that in their view you are suitability for a Youth Justice Centre Order. 

31Also, a letter dated 5 January 2014 authored by Emma Hutchinson and Katherine Elliott of “Seeing Youth in a Different Light”; a letter dated 21 December 2012 authored by your mother.   Quite apart from the neat handwriting of which I have already made mention, she brings to my attentions significant facts about you which show that you have many good qualities.   She notes, for example, that during your early years at school, you were nominated to be part of a group of school mentors due to your popularity with children younger than yourself; you were also Class Captain and Traffic Patrol Monitor and you were also very sporty and involved in many sports. 

32You along with your family came to Australia in 2005 seeking a better life.   Perhaps all that would have worked out well had it not been for the various reversals that have involved the unfortunate deaths of people very close to you and the stress and strain that that put on your parents' relationship and their ability to give you the kinds of support that they would have otherwise wished to give you in your hour of need during an important period of your development. 

33I think that it is clear that all that did have an effect upon you and that there was an overlay of grief, which was present at and subsequent to this offending conduct, which possibly will have led you into company that you otherwise might not have kept and into behaviour patterns that you might not otherwise have engaged in, including taking Ice.  I have no doubt that that all played a part in you behaving as you did on 18 June 2012. 

34I was also provided with a letter from you, which sets out your own feelings about the events of that night and includes expressions of remorse of your conduct.  I take all those to be sincere.   I have been provided with a letter from a Mr Tony Attard, who is your current employer and he speaks well of you and indicated that he would wish to sign you up from an apprenticeship. 

35Now, that all ought to tell you that you are more that capable of leading a decent and honest life.   I am sure with your family supports that if you are prepared to accept the help of those who wish to support you and to keep you on the straight and narrow and if you look to those family members as being role models, then you have got every chance of fulfilling that objective of leading a decent and honest life and staying out of trouble.  If you go back to keeping bad company, well, you will probably get into trouble again. 

36You have spent some time in adult remand.   It seems clear though that was an opportunity for you to demonstrate that you are willing to help yourself and there is no doubt you were busy during that period.   The collection of certificates with which I was provided suggest that you have done a great deal to try and set yourself on the right path, educate yourself and give yourself the best chance of rehabilitation.   I think that all bodes pretty well in your favour. 

37You dabbled in cannabis a bit over the years and probably still have a few puffs every now and again, even until quite recently.   But I think you have got to put that behind you and that is, I think, symptomatic of the kind of work you still have to do in order to ensure that you do not slip back into this kind of company and behaviours. 

38The reports about you, in particular, those from Youth Justice, suggest that you are willing to learn and to make good use of the opportunities that will be offered to you in Youth Justice Centre. 

39It is very easy to look upon an order such as that as purely a negative and something to be endured.   But I think you have the capacity to see the positive side of it and to work with it.   What Ms Alexander and Mr Toke say about you suggests that you have every opportunity of benefiting from that and I do regard your prospects of rehabilitation as good. 

40I have already made mention that you have a prior court appearance but I do not regard that as an indicator that you are on a hopelessly downward trend in a criminal career at all.  It seems to me that you have every possibility of putting all that behind you. 

41You have pleaded guilty and like Mr Pitone, you have saved the State the cost of a trial and the witnesses the trauma of having to give evidence in the course of a trial and relive these events.  I treat you as having pleaded guilty at the earliest practical opportunity and I think you are entitled to a full discount for your plea of guilty.   I accept that is another indicator of your genuine remorse for the offending conduct. 

42You, like Mr Pitone, are still a young man.   You are eligible for Youth Justice Centre Order and are suitable for one.   Ordinarily rehabilitation would be probably the most significant sentencing consideration. But as, I think, is conceded, because of the serious nature of armed robberies - armed robberies are a serious offence however it is committed - but it is conceded and I think you would concede that these are particularly serious types of armed robbery.  It requires the court to balance the need to rehabilitate you against the other sentencing considerations, particularly deterring others from behaving that way. 

43I am quite sure that in the cold light of day without the influence of alcohol or drugs, if you saw some other people behaving like your group behaved that night, you would be appalled.   It is necessary therefore, for me to reflect that in an appropriate sentence.  It is not in my view, possible, for me to say that rehabilitation is the only or even the most important consideration having regard to the nature of the offending conduct. 

44However, it does play a significant part and had it not been for the various factors in mitigation that your counsellors have drawn my attention to and your youth and the time since the events, a sentence that would have been quite outside the sentence open on a Youth Justice Centre Order would have been appropriate, in my opinion, for offending conduct of this nature. 

45Putting all of those matters together I am doing the best I can to arrive at a sentence that takes into account in both your cases the time you have already done in adult prison and the period during which you, Mr Pitone, have already served without qualifying for or obtaining parole in a youth justice centre leads me to impose sentences that are somewhat lower than those that I would otherwise have regarded to be appropriate for this offending conduct. 

46Now if each of you would please stand, I am ready to pass sentence upon you. 

47Dealing with you, Mr Pitone, first, on Charge 1 of theft I convict you and sentence you to imprisonment for a period of six months; on Charge 2 of armed robbery I convict you and sentence you to imprisonment for a period of two years' and eight months; on Charge 3 of armed robbery I convict you and sentence you to imprisonment for a period of two years' and nine months; and on Charge 4 of armed robbery I convict you and sentence you to imprisonment for a period of two years' and ten months. 

48All of those sentences will run concurrently so the total effective sentence is two years' and ten months' imprisonment and I order that you serve a period of 22 months before you become eligible for parole. 

49Just remind me, if you would, what the pre‑sentence detention is, gentlemen?

50MR FITZGERALD:  363 days, Your Honour.

51HIS HONOUR:  I declare that 363 days, not including today of pre‑sentence detention is to be reckoned as time served on the sentence that I have imposed and deduct it administratively from the sentence you will actually have to serve.  I have not calculated exactly but I think you have got something like eight or nine months to do, something of that order, before you become eligible for parole. 

52Again, your conduct in serving that sentence will influence no doubt, the question of whether you get parole at the end of that period.  But for your pleas of guilty, I would have sentenced you to imprisonment for a period of three years and ten months and ordered that you served a period of two years and six months before becoming eligible for parole. 

53You, Hone Toby, on Charge 1 of theft I convict you and sentence you to a Youth Justice Centre order for a period of six months; on Charge 3 of armed robbery I convict you and sentence you to a Youth Justice Centre order for two years' and eight months; and Charge 4 of armed robbery I convict you and sentence you to a Youth Justice Centre order for a period of two years' nine months. 

54All of those sentences will of course run concurrently, makes a total effective sentence of two years' and nine months.  But for your pleas of guilty, I would have sentenced you to a term of three years' nine months imprisonment with a non-parole period of two years and five months. 

55Now the pre‑sentence detention for Mr Toby is?

56MR FITZGERALD:  185 days, Your Honour. 

57HIS HONOUR:  185, not including today?

58MR FITZGERALD:  Not including today. 

59HIS HONOUR:  Yes.  I declare that 185 days of pre‑sentence detention is to be reckoned as time served on the sentence that I have imposed and deducted administratively and those facts of course, in the case of each of you, which will noted in the records of the court. 

60I have also indicated that I will make, and I have made, orders for you to undergo a forensic procedure by taking a scraping from the inside of your mouth and that will be done by an officer coming and asking you to provide that sample.  If you provide the sample without difficulty and willingly, that will be end of the matter.  If not, the officer will be authorised to use reasonable force to obtain a blood sample if necessary.  I am sure you will not put them to that trouble. 

61I indicate that I have had regard to parity as between the two of you and it seems to me that all of the balancing factors essentially require me to treat you almost equally; the only difference being that of course you, Mr Toby, engaged in two armed robberies rather than three. 

62I have also taken into account not just the bare sentences imposed on your younger co‑offenders in the Children's Court, but also the prior court appearances of some of those persons and whilst I clearly am dealing with you under a totally different sentencing regime and questions of parity, treating you all equality, do not apply.  Nevertheless, I have taken those factors into account in determining what is an appropriate sentence in the case. 

63Any other orders I need to make, gentleman?

64MR FITZGERALD:  No, Your Honour.

65HIS HONOUR:  Thank you.  You can take them down.  I have got the signed orders as well if you'd care to take those.  Mr Johnston, I might give you the certificates back again I think, just in case they are needed in some other place.

66MR JOHNSTON:  Your Honour, may I also trouble you to have the letter from the employer back as a reference for the future?

67HIS HONOUR:  Yes, yes I will give you that too.

68MR JOHNSTON:  As Your Honour pleases.

69HIS HONOUR:  It's not actually signed so I recommend that it be signed - for future reference.  I've accepted it at face value.

70MR JOHNSTON:  As Your Honour pleases.

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