Director of Public Prosecutions v Pujara
[2018] VCC 380
•23 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-00502
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SMIT PUJARA |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 March 2018 |
| DATE OF SENTENCE: | 23 March 2018 |
| CASE MAY BE CITED AS: | DPP v Pujara |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 380 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – youthful offender
Legislation Cited: Crimes Act 1958, s75A; Sentencing Act 1991
Cases Cited:Boulton & Ors v R [2014] VSCA 342; Director of Public Prosecutions v Molesi-Mati [2012] VCC 2211; Lord v R [2018] VSCA 52; Director of Public Prosecutions v Dalgliesh [2017] HCA 41; Director of Public Prosecutions v Fualau [2014] VCC 2325 Director of Public Prosecutions v Tokava [2006] VSCA 156; R v Merrett [2007] VSCA 1
Sentence:Convicted and sentenced to two years in a youth training facility pursuant to the provisions of s32(3) of the Sentencing Act.
---
APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms K Farrell | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M White | Matthew White & Associates |
HIS HONOUR:
1Mr Smit Pujara came before this Court by way of plea on 16 March 2018. Ms Farrell appeared on behalf of the Director in the plea and Mr White for Mr Pujara. He is aged 20, born in India on 5 April 1997, currently a student, turns 21 on 5 April. He is in Melbourne, at the behest of the sacrifice of his parents, studying for a business degree at La Trobe. In regard to that, he is here on a student visa. The cost of his study in Melbourne, I am told, is in total for the three years of the degree, $75,000, of which having now completed his second year, his parents have in fact spent some $54,000. He has been living in Melbourne at student apartments in A'Beckett Street.
2The plea, insofar as Indictment J10379243, was to a breach of s75A of the Crimes Act 1958 which prescribes the highest maximum penalty in our criminal system in this State, but for certain drug offences. Such is indicative of the view the Parliament and the community take of this crime.
3The offence took place on 6 January of this year and the fact that it is now here before this Court, is a record in itself. As I said, the offending took place on the 6th, he was arrested on 8 February, he made admissions thereafter and the plea was heard on 16 March. Indeed, as it had proceeded so quickly, the CCTV was not available.
4The CCTV has been made available, after some excellent work, I am told, by the prosecutor's instructor. I thank the DPP for that, and I have viewed that this morning. It is one of the reasons why I have had a short break, because, apart from its starkness, one never knows what is in the mind of a victim, but certainly there was no issue, and I do not say this critically, having seen the knife only fleetingly, as demonstrated, the victim decided to cooperate, no doubt following, you would imagine, his employer’s advice not to risk your life.
5The victim in fact was Jet Rajpopat, and his victim impact statement was tendered as exhibit B.
6The Prosecution Summary was accepted by Mr White as demonstrating the facts upon which I am to sentence, Mr Pujara. They show, as demonstrated this morning, Mr Pujara coming into the shop, no doubt to case the joint, to use the phrase, at 4.59am and then re-entering the premises, and I make that point, re-entering, having been let in by way of a safety system. So even though he had his hood up around his head, his face was still visible. The victim obviously did not perceive any particular issue of risk in admitting him.
7Mr Pujara had with him a long silver kitchen knife. The CCTV footage, and in addition, on the plea date still photos of the scene, were tendered. As is often unfortunately the case, the “reward” from of the armed robbery was the princely sum of $175, I have made a compensation order in regard to that. As I said, the statement made by the victim, exhibit B, is a realistic statement; there does not seem to be any exaggeration, the victim said he went completely blank, and he was particularly concerned about being injured and, to use his words, is now apparently back to normal.
8The Crown sought an order under s464ZF.
9Importantly as to the sentence, is not only the young age of the prisoner, but that Mr Pujara has no priors. The basis of the plea put by Mr White was that in all the circumstances, I should consider the imposition of a community correction order, based upon the principles not only stated in Parliament, when such legislation was enacted, but as espoused by the Court of Appeal in Boulton & Ors v R [2014] VSCA 342. There is of course, no doubt, that such an order can be made, indeed, there has been discussion in this plea as to I having made such an order in one of the Boulton cases, and further, overnight, Mr White provided me with a copy of Director of Public Prosecutions v Tyrone Molesi-Mati [2012] VCC 2211, a decision of my sister Judge Cannon. I, by way of comity, take note of such.
10As I indicated to Mr White, we are dealing with a most serious crime. As if to emphasise that, the learned prosecutor referred the Court to the recent Court of Appeal decision of Lord v R [2018] VSCA 52, and the statement at [11] which accentuates what I have said in this hearing, when they said:
“Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed. As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of the first importance to public confidence in the criminal justice system. … .”
11Statements like that are obviously made to assist Sentencing Judges, but ultimately, as the High Court has recently decreed in Director of Public Prosecutions v Dalgliesh [2017] HCA 41, this Court must deliver individual justice, in particular to Mr Pujara, based upon the particular circumstances of this case. The balancing process involved in this case has been of concern to me. It is an exquisite balance.
12Mr White, in his plea, tendered the defence submissions, which were dated 14 March. Exhibit 2 was the academic progress from La Trobe University, it is concerning, especially when you know the background, the impact of a sentence is obviously going to be dramatic, especially given his immigration status.
13Up till this morning, the Court was not precisely aware of what may or may not happen, despite conjecture. However, the prosecution has put today that if the Court incarcerates Mr Pujara for a period in excess of twelve months, and that incarceration, it is submitted, includes detention, then the provisions of the relevant Commonwealth legislation would result in the automatic cessation of his student visa. Again, that is also one of the reasons why I had a short adjournment to consider such impact, because obviously that impact not only is personal on Mr Pujara himself, but, no doubt, impacts upon the dreams of his parents.
14As I said, Mr White stressed the uniqueness of this case. One acknowledges the obvious cooperation of all involved, who sought to get this plea before the Court, so that the provisions as to youth justice, could apply. It is clear that Mr Pujara cooperated from the first instance. He is entitled to a discount for his plea, given its facilitation of justice and utilitarian benefit.
15The explanation as to why he committed this crime is still somewhat beyond me. To understand the propositions he put, that he had been drinking, that he had a pill of some sort, sounds amazing. But unfortunately in our community, people do, as we saw most recently at one of the music nights, pop a pill without having any idea of its consequences.
16I do not know what the pill was, but certainly, whatever the impact, Mr Pujara made a decision at his A'Beckett Street premises, to carry out this armed robbery. It is suggested by him that the purpose was to experience what it was like to commit an armed robbery. That is pretty mystifying. He clearly was involved in some planning, to the extent that he took a knife. He ultimately covered himself up to some degree, but I accept Mr White's submission that you could not possibly have a more – well you could, perhaps this Court often sees less unsophisticated armed robberies, but this is right down there, not only being unsophisticated, but being hard to comprehend.
17We heard evidence from Mr Raiga, a family friend, as to the background of
Mr Pujara. That background seems to be totally consistent with a hardworking student who comes from a supportive family, who has never been in difficulty before. The expressions of remorse demonstrated by the plea, were confirmed by Mr Raiga. The support of Mr Raiga, and other Indian nationals in Victoria for Mr Pujara, was emphasised, insofar as another family friend was apparently available to assist him, should that be necessary.18Ultimately, as I said, the submission made by Mr White was based upon all of those matters and their impact, not only on this young lad, but his family, and in such very unusual circumstances, that a community correction order should be passed by the Court, upon Mr Pujara.
19In making that submission, Mr White relied upon, not in a Verdins’ sense, but in understanding the context of the crime, the intoxicated and disinhibited state as being the reason for this aberrant behaviour. I accept this, given his background, the fact that he has no prior convictions, that he is a youthful offender, that he was totally cooperative, that he pleaded guilty at the earliest point – as I said, this is almost unique in my experience – his vulnerability and his prospects of rehabilitation. All of those circumstances have been taken into account by me. Indeed, without suggesting that I had made any decision, as clearly I have not, I arranged for a youth justice report to be prepared, and also a Community Correction report. Both of those have been received, and are positive, and were tendered respectively as exhibit D and E in this plea.
20This Court has always been particularly attentive to matters involving young persons, the importance of rehabilitation and the steps that a Court should take insofar as such persons. Indeed, as was pointed out by me in Director of Public Prosecutions v Fualau [2014] VCC 2325, the principles set out by the current President in Director of Public Prosecutions v Tokava [2006] VSCA 156 and R v Merrett [2007] VSCA 1 are of utmost importance with dealing with young persons. In particular, in this case, as I have already said, I take into account the impact on his status and the impact that incarceration will have on him and his parents. It is very dramatic in the circumstances.
21The learned prosecutor, in response to Mr White’s submission, at the initial plea and today, after having received the two positive reports, indicated that it was the submission of the prosecution that while a youth justice sentence order would be appropriate, given the totality of the criminality and based upon the principles from Lord, that a community correction order, albeit possible, in the particular circumstances of this case, should not be made. In particular, the prosecutor this morning stressed the matters that are of concern to the community, which are demonstrated from the facts of this case. That is, a single victim at a 7-Eleven store, late in the morning, being confronted by a person with a knife, and the commission of an armed robbery, as I already said, one of the most serious offences in our legislation.
22As I say, I have given this matter anxious consideration. Ultimately, unfortunately Mr Pujara, I have concluded that the totality of the circumstances are such that a Community Correction Order would not be a proper sentence, nor would it reflect the criminality, or effect, as must be achieved, the fundamental principles of deterrence, public condemnation and punishment. I take the view that once you have overcome the experience of this sentence, the chances of you further offending would be limited. But the more general principles must be the principles adhered to in this case and unfortunately, I have concluded that it would not be appropriate in the circumstances of this case, applying as Dalgliesh requires me to consider all the factors, in order to deliver individualised justice to you.
23However, taking account of all of the principles that I have referred to, I have determined that it is appropriate that a period of detention should be imposed pursuant to s32(3) of the Act.
24Mr Pujara, you will be convicted of armed robbery. For that armed robbery, I sentence you to two (2) years in a youth training facility pursuant to the provisions of s32(3) of the Sentencing Act. It gives the Court no joy, understanding both your background, the circumstances whereby you have come to Australia, the potential consequences of you being sentenced to a period of detention, as detailed to the Court today, to make such a determination. However, I find there is no alternative, given your criminality. So all I can do is wish you well.
25Yes, any other matters I need to attend to? I am sorry I have signed the Forfeiture Order. What else Madam Associate? The 464ZF.
26MR WHITE: And the pre-sentence detention, Your Honour, of twenty-eight days.
27HIS HONOUR: Pursuant to s35 of the Sentencing Act, the twenty-eight days that you have served by way of pre-sentence detention, Mr Pujara, are to be taken into account as service of this sentence of detention and a notation of that is to be recorded in the records of this Court. Yes, the prisoner can be taken away.
28MR WHITE: As Your Honour pleases.
29MS FARRELL: As Your Honour pleases.
30It should be noted that subsequently and with the permission of both Counsel, a declaration as to s.6AAA was made and entered into the records of this Court that doing as best the Court can do, given the multiple factors in this case, had Mr Pujara not pleaded guilty he would have been sentenced to immediate gaol in an adult prison.
‑ ‑ ‑
5
0