Director of Public Prosecutions v Puni
[2015] VCC 1250
•19 August 2015
| IN THE COUNTY COURT OF VICTORIA CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00527
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROMULUS PUNI |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2015 | |
DATE OF SENTENCE: | 19 August 2015 | |
CASE MAY BE CITED AS: | DPP v PUNI | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1250 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty - aggravated burglary - theft – traffic drug of dependence - intentionally caused injury - commit an indictable offence whilst on bail.
Legislation Cited: Drugs, Poisons and Controlled Substances Act1981; Crimes Act1958; Sentencing Act 1991; Migration Act 1958 (Cth); Bail Act 1977
Cases Cited:R v Verdins (2007) 16 VR 269; DPP v Myers [2014] VSCA 314; DPP v Zhuang [2015] VSCA 96;
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Fallar | Office of Public Prosecutions |
| For the Offender | Ms D. Lamovie | - |
HIS HONOUR:
Statement of the offences
1. Romulus Puni, you have pleaded guilty to the following charges on indictment:
·At Bayswater North on 20 September 2014, you stole a Nissan Skyline sedan car belonging to Rebecca Verhoven contrary to s74 of the Crimes Act 1958, carrying a maximum penalty of 10 years imprisonment.
·At Doveton on 21 December 2014, you trafficked in a drug of dependence, namely methyl amphetamine, contrary to section 71AC of the Drugs, Poisons and Controlled Substances Act 1981, carrying a maximum term of imprisonment of 15 years imprisonment.
·At Hallam on 23 December 2014, you stole a Hyundai Excel sedan car belonging to Marcello Chirullo, contrary to s74 of the Crimes Act 1958, carrying a maximum penalty of 10 years imprisonment.
·At Hallam on 23 December 2014, you entered, as a trespasser, a building at unit 1/5 Windsor Avenue, with intent to commit an offence involving an assault to a person therein and at the time had with him an offensive weapon, namely a Tomahawk style axe, contrary to s77 (1) of the Crimes Act 1958, carrying a maximum penalty of 25 years.
·At Hallam on 23 December 2014, without lawful excuse, you intentionally caused injury to Marcello Chirullo contrary to s18 of the Crimes Act 1958, carrying a maximum penalty of 10 years imprisonment.
·You have also pleaded guilty that on 23 December 2014, you committed an indictable offence of aggravated burglary whilst on bail, contrary to s30B of the Bail Act 1977, carrying a maximum penalty of 30 penalty units or three months imprisonment.
The background facts
3. On 23 December 2014 and at about 8:30 am, and in company with an accomplice, you went to the flat where Chirillo lived and stole his car, apparently as collateral for a drug debt. He saw you driving his car away. He chased you and caught up with you. You led him to believe that you intended to accompany him back to his flat, but having left him with that belief you drove his car away. Chirullo found your accomplice that same day at around midday. He obtained his car keys from him. He was told by your accomplice where his car was parked. He then collected his car and returned to his flat.
4. At about 5.00 pm you knocked on the door of his flat. Chirullo observed that you were accompanied by an accomplice. He heard someone yell out “open the door cunt or I swear I’ll kick the cunt in.” Chirullo shut the door of his bedroom, and as he did so he heard a loud bang consistent with the front door of his flat being kicked in. You entered his flat. These facts go to the charge of aggravated burglary.
5. You punched him to the area around his left eye. You or your accomplice yelled at Chirullo “you’re a fucking dog, you cunt! You want to call the cops? You fucking dog.” Chirullo stumbled and fell onto his bed.
6. You then jumped on top of Chirullo punching him to the head. Your accomplice, who was armed with a tomahawk style axe, struck Chirillo to the area of his left foot and ankle. He tried to get up off his bed. You grabbed him a headlock and squeezed his neck so tightly that he lost consciousness for about 45 seconds. At around this point your accomplice struck Chirullo to the back of the head with the tomahawk. You and your accomplice verbally abused Chirullo while you were both assaulting him. You then let go of Chirullo and both you and your accomplice ran out of the front door of the flat. These facts go to the charge of intentionally causing injury.
7. Neighbours of Chirullo heard noise and screaming coming from his flat. He went to a neighbour who rendered him some assistance and who called the police.
8. You were intercepted by police on 1 January 2015 at about 8:48 pm driving in excess of the speed limit. A check of your background disclosed that your license was suspended at the time. You were arrested and taken to the Narre Warren police station. The informant in this matter was contacted. He attended at the police station where you participated in a record of interview, during which you made almost full admissions.
9. In relation to the theft of the Nissan Skyline, you admitted that you accompanied an accomplice and assisted him in pushing that car onto a flat tray truck on 20 September 2014 and at about 3.00 am.
10. In relation to the trafficking of methyl amphetamine, you admitted having sold one point of that drug to Chirullo for one hundred dollars. He did not pay you for the drugs at the time when you sold them to him.
11. In relation to the theft of the Hyundai Excel, you admitted that you went to his flat on 23 December 2014 with an accomplice and stole his car.
12. In relation to the aggravated burglary, you admitted that you were angry when you discovered that Chirullo had retrieved his car. You said that it was your accomplice’s idea to confront Chirullo; however, you admitted that you went there with an accomplice, and that your accomplice was armed with a tomahawk. You otherwise admitted what occurred at Chirullo’s flat, that is, that you and your accomplice forced your way into the flat and then assaulted Chirullo. You admitted that the reason why you did this was to teach Chirullo a lesson for not paying the drug debt.
13. On 18 September 2014, you were charged with handling stolen goods, and you were granted bail to appear at the Dandenong Magistrates’ Court on 6 January 2015. On 14 November 2014, you were charged with theft and a number of driving offences, and you were granted bail to appear at the Dandenong Magistrates’ Court, also on 6 January 2015.
14. You admitted that you were on bail at the time when you committed all of the offences for which you are before this court, except for the theft of the Nissan Skyline.
15. You admitted a lengthy prior history. I propose to set it out in full because I consider that I must pay regard to some of it in formulating the imposition of a just sentence:
·On 26 August 2003, you were dealt with for theft of a motor car, a further count of theft and robbery and unlawful assault. You were released on a community-based order for 24 months
·On 29 March 2004, you would dealt with for wilful damage and fined.
·On 16 June 2004, you were dealt with for failing to comply with the community-based order and you were sentenced to 6 months imprisonment. You were also dealt with for theft from a shop and sentenced to 1 month imprisonment concurrent with the other sentence.
·On 29 November 2004, you were dealt with for aggravated burglary, intentional cause injury, threat to kill and criminal damage and you were sentenced 20 months imprisonment with a non-parole period of 10 months.
·On 30 March 2005, you were dealt with for robbery and sentenced to 6 months imprisonment with four months to be served concurrently with the sentence you were undergoing.
·On 14 July 2006, you were dealt with for affray and common assault and sentenced to 12 months imprisonment which was suspended for two years.
·On 7 December 2007, you were dealt with for intentionally damage property, possess prescribed graffiti implement, failing to answer bail, handle stolen goods and theft and you were sentenced to terms of imprisonment, but released on an intensive correction order.
·On 10 January 2008, you were dealt with for failure to comply with the intensive correction order and sentenced to serve two months imprisonment.
·On 10 January 2008, you were dealt with for possession of cannabis, resist and assault police and sentenced to 22 days imprisonment being the time held in custody.
·On 16 September 2009, you were dealt with for criminal damage, accessory to a robbery, deal with property the proceeds of crime, fail to appear on bail and you were sentenced to 8 months imprisonment suspended for 12 months.
·On 13 June 2014, you were dealt with for a number of driving offences, but also failing to answer bail and possession of methyl amphetamine. You were released on a community corrections order for 12 months.
16. I have taken the unusual step of setting all of that out only to demonstrate that you have been found guilty of offences of dishonesty and a number of assault related offences, including an aggravated burglary and affray. Additionally, you have breached the Community Corrections Order on which you were released on 13 June 2014, by the commission of the offences which have brought you before this court.
17. Many of your other prior convictions have diminished relevance because they go back a significant period into your past. There was a period between 2009 and 2014 where you appear to have changed your behaviour.
Your Plea
18. You were born in Samoa. You were adopted when you were three months old. You had been neglected and were malnourished. Your adoptive parents have cared for you very well. Your adoptive family comprises your mother, father and four sisters. Your mother is a caterer employed at a hospital. She is 53 years of age. Your father is a courier. He is 56 years of age. Your four sisters all have tertiary education and have pursued productive and untroubled lives.
19. You discovered that you were adopted. You understand that your biological mother lives in New Zealand. Your father is Samoan. You have not had any contact with him. Your counsel submitted that the fact that you are an adopted child has left you with some feelings of emotional insecurity; however, you regard your adoptive parents as your real parents, and your sisters as your real sisters.
20. Your family migrated to Australia in about 2000/2001 when you were about 15 years of age.
21. Your educational history was very troubled and unproductive by most standards. You attended four or five primary schools. You performed poorly. You were regarded by your teachers as being inattentive and disruptive. You attended a high school to year 10, but throughout your secondary schooling your attention and behaviour were no better. You showed little interest in attending school. You often received detention and suffered suspensions. You often failed to attend at all. You were expelled from your last school. Your parents decided that because of your lack of success at school that it was no longer worthwhile insisting that you attend a school.
22. You entered the workforce when you were about 15 years of age. You worked for an uncle in a metal work factory for about 6 to 8 months. It was work which you did not enjoy. You then worked in a warehouse as a labourer for about 2 to 3 years. You were sacked because you took too many days off work. You then worked as a labourer for your wife’s uncle for about five years. That employment came to an end when your relationship with your wife came to an end. You have not engaged in any significant employment since.
23. You met your wife, Hayley, and were married in 2001. At that time you were working for her uncle. Two children were born of your marriage. They both currently live with their mother in New Zealand.
24. At around the time of the breakdown of your relationship with Hayley, and perhaps as a result of it, your life took a dramatic downward spiral. You were indulging in the abuse of cannabis and alcohol. In 2012 Hayley returned to New Zealand. She had an affair with another man. That was the event which ultimately brought your marriage to an end. You retained the custody of one of your children, and Hayley retained the custody of the other child. It would appear that you were having difficulty caring for your child. You placed her in the care of your parents who then effectively became her carers. In May of this year Hayley returned and removed the child from the care of your family and return to New Zealand with her.
25. According to histories you gave to Mr Simmons, psychologist, and Dr O’Meara, neuropsychologist, and confirmed by your counsel, you first became exposed to cannabis and alcohol at the astonishingly young age of eight years. It would appear from that time that your use of cannabis and alcohol became a habit.
26. Your use of illicit substances increased as you grew older. Your counsel informed me that when you were about 17/18 years of age you were “chroming” and consuming a lot of alcohol. You then began using methyl amphetamines using one point of that substance about every two or three days. You then went on a greater and more destructive downward spiral.
27. Your counsel referred me to the reports of Mr Simmons and Ms O’Meara, which I will set out in some detail. I will go to the report of Ms O’Meara first. She made an assessment of you on 13 July 2015 and provided an extensive report on 26 July 2015.
28. One of the aspects of Ms O’Meara’s assessment of you was whether you had suffered an acquired brain injury. She obtained access to the medical records of the Alfred Hospital relevant to a transport accident in which you were involved on 7 August 2013. The vehicle you were driving struck a roadside barrier then a tree. You were diagnosed with a closed head injury. There was no discernible brain injury. Your mother noted subsequent changes in your personality.
29. You were assaulted in about late 2013. Dr O’Meara again obtained access to the medical records of the Alfred Hospital, which disclose that you were admitted on 29 December 2013. You were unconscious and there were bruises apparent to your face and trunk. Your cognition was affected. You were transferred to the Caulfield Hospital for neuro rehabilitation on 14 January 2014. According to your mother you discharged yourself from the hospital against medical advice.
30. Dr O’Meara undertook neuropsychological testing, of you which I do not propose to summarise in detail. Of importance is the following part of her opinion:
“… His borderline level of cognitive functioning as well as his severe deficits in processing speed, new learning and memory, and aspects of executive functioning will, however, impact upon his ability to think clearly and make calm reasoned decisions and appropriate judgements. In particular, he will struggle to hold and work with large amounts of information in mind in order to consider multiple options available to him and the potential consequences of each of the options. In addition he will have difficulty generating and understanding the different options available to him, considering situations from different perspectives, and reasoning with information that is not straightforward or familiar in order to understand the likely consequences of his decisions in unfamiliar situations. He will particularly struggle to think clearly and make calm reasoned decisions and appropriate judgements when under a time pressure (e.g., in fast paced social situations) and will likely forget important information relevant to the decision at hand. Finally, he may fail to detect and correct any poor decisions or judgements made.”
31. Dr O’Meara was asked to comment on a number of questions which were put to her. She was of the opinion that you knew what you were doing was wrong at the time of your offending. She added that your abuse of drugs probably contributed to your offending. She also commented on the difficulties which you might encounter in undergoing a term of imprisonment; the likelihood of you reoffending; your prospects of rehabilitation, and the need for counselling. I do not propose to summarise her opinions on those subjects, except to say that I have paid due regard to them.
32. You were also examined by Mr Simmons. He interviewed you on 6 May 2015. Like Dr O’Meara, he performed psychological testing on you, which I do not propose to summarise. His testing confirmed that your intellectual abilities are in the borderline range and that you would meet one of the two criteria for eligibility for services from Disability Services. He referred to the head injuries that you have suffered, which may have led to you suffering some level of brain damage. It would appear that he misunderstood when you suffered those injuries; however, that does not detract from his opinion regarding your intellectual abilities and other opinions he has offered in his report. I do not propose to summarise his opinions on those other subjects, except to say that I have paid due regard to them.
33. Your counsel submitted that the effect of the opinions of Dr O’Meara and Mr Simmons is that the difficulties you experienced when you were younger may have occurred because of your borderline level of intellectual and cognitive functioning, and in particular, the difficulties you experienced in your schooling and your later development into adulthood resorting to the abuse of drugs and alcohol, and your difficulty retaining employment.
34. Dr O’Meara was also of the opinion that you demonstrated moderate symptoms of depression, anxiety and severe symptoms of stress when you were questioned formally about mood. She considered that you would benefit from a combination of psychotropic medication and psychological therapy, and that if you are sentenced to a long term of imprisonment that your mood and suicide risk be monitored on a regular basis.
35. In addition to the issue of whether you have a borderline level of intellectual and cognitive functioning is your difficulty in controlling a diabetic condition from which you have suffered for some time. You are insulin dependent.
36. Your counsel referred me to R v Verdins (2007) 16 VR 269. The effect of Verdins, is that if I conclude that you are suffering from impaired mental functioning, is potentially relevant to the sentence I impose on you in up to 3 ways:
“2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
…
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender that it would on a person in normal health.
6. Where there is a risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
37. The prosecution conceded that the evidence you have produced is capable of falling within all of the three factors referred to in Verdins.
38. I accept that it is likely that your intellectual and cognitive functioning pre-existed the head injuries you suffered in 2013 and were probably increased by the consequences of the head injuries. Your counsel’s submissions that your past has been affected by your intellectual and cognitive functioning is probably correct. It is in that setting that your counsel submitted that the impact of the level of your intellectual and cognitive functioning should lead to sensible moderation of general deterrence because you are not an appropriate medium for making an example to others who may involve themselves in the offending which has brought you before the court.
Sentence
39. Your counsel candidly and properly conceded that you must be sentenced to an immediate term of imprisonment, but that the sentence should be moderated by a lesser non-parole period than would otherwise be the case.
40. I will deal with the charge of aggravated burglary and intentional cause serious injury first.
41. The offence of aggravated burglary has been described as a particularly nasty form of criminal conduct which is typified by a home invasion involving a number of offenders carrying weapons where the intention is to rob or injure victims for some actual or perceived wrong. The wrongful entry into a home is often fuelled by drugs or alcohol and is an understandably terrifying experience for the householder. That was what was said in the opening statement in Hogarth v R [2012] VSCA 658 and repeated in a number of subsequent decisions including one which your counsel referred me to of the DPP v Myers [2014] VSCA 314.
42. In Myers the Court of Appeal said that in determining the sentence to be imposed for any particular offensive aggravated burglary a large part of that determination will depend upon a careful assessment of the relative seriousness of the offence, and that the following considerations will ordinarily be relevant to such an assessment:
·The offenders intent at the point of entry (whether to steal or commit assault or cause damage);
·The mode of entry (e.g., by forcing the door breaking a window);
·Whether the offender was carrying a weapon;
·Whether the offender was alone or in company;
·The time of day at which the burglary took place;
·What the offender knew or believed about who would be inside and/or about where the person would be;
·Whether the offender was someone of whom the victim was particularly frightened.
43. I am in little doubt that you were the motivator and instigator of the aggravated burglary. It was your intention to enter Chirullo’s flat by whatever means you could and as it happens you did so by breaking through a doorway. You must have known that your accomplice was carrying a tomahawk, and that it was likely that it would be used to assault Chirullo or at least be brandished to frighten him into paying you the money he owed you. The aggravated burglary was aggravated by the fact that you were in company with an accomplice who was armed. You knew that yelling at the front door of his flat and then breaking through the front door with an armed accomplice was designed to maximise the fear you intended to Chirillo to experience. The nature of the aggravated burglary brings it within the more serious category of this type of offending.
44. Once you gained entry to Chirillo’s flat you jumped on top of him and started punching him to his head. The blows that he felt to his left foot and ankle must have been blows delivered by your accomplice using the tomahawk. The photographs demonstrate that he suffered a seriously blackened left eye; puncture wounds and abrasions to the outside to his left ankle resulting in bleeding and significant swelling of the left ankle; bruising to the left buttock and left loin area with horizontal scratches; minor bruising to the back of the right shoulder and bruising to the right side of his stomach.
45. Chirillo refused to make a victim impact statement. There is no medical evidence before me which enables me to determine whether he has suffered any residual consequences of the injuries inflicted on him. I assume that he has recovered from those physical injuries; however, he would have been placed in significant fear when he was confronted and assaulted by you and your armed accomplice.
46. The theft of the Nissan Skyline occurred on 20 September 2014 and is not part of the transaction of your offending on 21 and 23 December 2014.
47. Your counsel submitted that because all the other offending on 21 and 23 December 2014 is part of a transaction of offending that it would be just to reflect the sentences I impose on you accordingly by making portions of the sentences on those offences concurrent with the head sentence of aggravated burglary. I accept that this must be so.
48. I propose to make the sentences on the breach of bail cumulative consistently with section 16A of the Sentencing Act 1991 in the absence of any exceptional circumstances that should see me do otherwise.
49. Your Counsel referred me to the provisions of the Migration Act 1958 (Cth), and in particular, section 501 (3A) which is in the following terms:
“The Minister must cancel a Visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…”
50. Paragraph (6)(a) refers to the “character test” and provides that the person does not pass that test if the person has a substantial criminal record defined by subsection 7. Subsection (7)(c) provides that a substantial criminal record can amount to a sentence to a term of imprisonment of 12 months or more.
51. Your Counsel referred me to the DPP v Zhuang [2015] VSCA 96. The Court of Appeal considered these provisions and concluded in that case that the respondent to the appeal could expect with some certainty to be deported upon her release from custody. Furthermore, that because the prospect of deportation was capable of quantification that it is a factor in mitigation because it would increase the burden of her sentence.
52. I accept that the amendments to the Migration Act 1958 expose you to the cancellation of your visa, and therefore, deportation to New Zealand. That will inevitably mean that you will be separated from your parents, your sisters and your girlfriend. I accept that this consequence will increase the burden of the service of your sentence of imprisonment, and therefore, the sentence I must impose upon you must be moderated by that fact.
53. I have paid due in full regard to a number of factors which mitigate the sentence which I must impose upon you:
·The probability that your cognitive and intellectual functioning have plagued you throughout your life;
·That those levels of functioning have been further impaired by the head injuries you have suffered in more recent times;
·That your inability to conform to schooling and generally accepted behaviour is likely to have been affected by the difficulties you have encountered with your cognitive and intellectual functioning, and probably more so after you suffered the head injuries;
·That your cognitive and intellectual functioning have reduced your moral culpability for your offending.
·The cognitive and intellectual functioning as it adversely affects you now is likely to make serving a term of imprisonment more burdensome for you.
·That you come from a good family, and have the support of all of the members of your family to assist you in your rehabilitation. Your mother, four sisters and your girlfriend were present in court to support you demonstrating how close and supportive your family is of you.
·You made full admissions of your offending;
·Your early plea of guilty has saved the State the cost of a trial, and the witnesses the trauma of giving evidence in a trial.
·That you have, by your admission of guilt and your conduct, demonstrated serious remorse.
·The effect of the provisions of the Migration Act 1958 on your residential status.
54. Please stand - In imposing sentences on you which are just there must be a strong expression of specific deterrence and expression of the community’s denunciation of your conduct. For reasons which I have already set out there must be a sensible moderation of general deterrence which would ordinarily be a significant factor in the composition of a sentence of imprisonment for aggravated burglary and intentional cause injury.
55. In conclusion, and in undertaking the instinctive synthesis by having regard to all of the relevant considerations which I have set out in arriving at a just sentence which is proportionate to the gravity of your offending inconsistent with the principle of totality I will sentence you as follows:
·On the charge of aggravated burglary, you are sentenced to 4 years imprisonment. This will be the head sentence.
·On the charge of intentionally cause injury, you are sentenced to 18 months imprisonment. Nine months of the sentence is to be served cumulatively with the head sentence.
·On the charge of trafficking, you are sentenced to 2 months imprisonment to be served concurrently with the head sentence.
·On the charge of theft of the Hyundai Excel, you are sentenced to 6 months imprisonment. Two months of which is to be served cumulatively with the head sentence.
·On the charge of theft of the Nissan skyline, you are sentenced to 6 months imprisonment. Four months of which is to be served cumulatively with the head sentence.
·On the charge of committing an indictable offence whilst on bail, you are sentenced to 1 month imprisonment to be served cumulatively with the head sentence.
56. You are therefore sentenced to an effective term of imprisonment of five years and four months. I will fix the minimum term before you will become edge eligible to be released on parole at two years and nine months.
57. The period of 230 days you have been held in pre-sentence detention is to be reckoned as part of the sentence.
58. Any driver’s licenses you hold are cancelled and you are disqualified from obtaining any driver’s license for three years.
59. If it had not been for your early plea of guilty I would have sentenced you to 7 years with a minimum of 4 years and nine months before you would become eligible to be released on parole.
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