Director of Public Prosecutions v Rapana
[2021] VCC 1821
•16 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-00297
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB RAPANA |
---
JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2021 |
DATE OF SENTENCE: | 16 November 2021 |
CASE MAY BE CITED AS: | DPP v Rapana |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1821 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Robbery
Legislation Cited: Sentencing Act 1991
Sentence: 12 months imprisonment; 784 days reckoned as served.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | Office of Public Prosecutions |
For the Offender | Mr S. Kenny | James Dowsley & Associates |
HER HONOUR:
1Jacob Rapana, you pleaded guilty on indictment to a single charge of robbery committed on 17 November 2018.
2In sentencing you for your crime, I must take into account the maximum penalty for the offence which you have committed. The maximum penalty for the offence of robbery is 15 years' imprisonment, reflective of the seriousness with which Parliament regards your offending.
3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Plea Opening', dated 12 November 2021. This is an agreed document and represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence. I have had recourse to the full document and it was just read to the court.
The offending
4In short compass, about 6.30 pm on 17 November 2018, you and Liam Burt[1] were walking along Beach Road, Frankston. You were holding a liquor bottle. At the same time, Shane Kroon was walking from his home to the Bayside Shopping Centre and noticed two men staring at him. He was walking in the opposite direction from you and Burt and was on the other side of the road.
[1] A pseudonym.
5Mr Kroon heard the two men yelling out at him, but couldn't hear what they were saying, as he had his headphones in. You and Burt then crossed the road and approached Mr Kroon. One of you stood in front of him and the other to his side. In effect, he was boxed in. You asked the victim for cigarettes. Mr Kroon said, 'Sorry, I don't smoke.' Burt asked for cigarette papers and the victim again said he did not smoke. He was then asked for any paper and Mr Kroon gave you a receipt. You and Burt got closer. Mr Kroon said that he felt it was quite intimidating. Both you and Burt then demanded money from him. You were described as being the more aggressive of the two.
6The victim told you he did not have much more, but gave you all the money he had, about $4. You then asked, in what was described as a very threatening tone, 'What else have you got?' The victim turned his wallet upside-down and shook it, saying 'I don't have anything'. You then asked, 'What else have you got on ya?' Mr Kroon told you that he didn't have anything else.
7You saw the victim's phone in his hand and said 'I'll just take this then' and grabbed the phone. Mr Kroon resisted, to which you responded with 'Just fucking give it to me or I'll smash ya'. You then pulled the phone away from Mr Kroon. As you did this, his headphones got caught on his button. You got more aggressive and said 'Just fucking give it', before unplugging the headphones and walking away with Burt, laughing as you did so.
8The victim told a passer-by that he had been robbed and they called 000. Whilst no victim impact statement has been provided, I have little doubt that Mr Kroon was intimidated and probably frightened.
9Police attended at the scene shortly thereafter. A statement was taken from Mr Kroon and he was driven home. Whilst driving back to the crime scene, Constable De Looze observed two males outside an address in Petrie Street, Frankston which matched the description of the offenders. Police later returned to that address and saw you and Burt standing on Petrie Street. They stopped their van and you went into a nearby house. Police knocked on the door and asked to speak with you. You did present at the front door and were told that you were under arrest. Police then called the victim's phone and could hear it ringing from inside the house. The phone was located and seized by police.
10You were taken to the Frankston Police Station, where you were interviewed and made admissions to stealing the phone.
11I accept that your offending was spontaneous and unsophisticated. Still, it was cowardly. You were in company with Burt, making Kroon more vulnerable to your intimidation. These days, people keep much of their daily lives on their phone and you took this from Mr Kroon and the very few dollars which he had on him. Your behaviour appears somewhat immature and is certainly shameful.
12For the offence of robbery, I do accept your counsel's submission that it is not at the higher end.
Personal circumstances
13I turn briefly to your personal circumstances. You are now 27 years of age. You were born in New Zealand, but moved to Australia with your mother when an infant. You have never known your father and have an older brother and younger sister. You spent your early childhood in Sydney, where your family of origin remains, other than a brother, who currently resides in Melbourne.
14For the majority of your life you resided in the Frankston area. When in your teens, you stopped living with your mother and spent periods of time variously with your aunt, Leona Gage, in state care, or on the streets. You managed to complete a Year 7 education, but have never been employed. You have used cannabis from time to time since your early teens and are also a heavy user of alcohol.
15You do present as a somewhat isolated individual. You have not really maintained contact with family.
16A psychological assessment authored by Jeremy Parker and dated 18 June 2019 has been tendered on your behalf. Whilst somewhat dated, Mr Parker details that you were homeless and couch surfing at the time of your offending and were a regular and excessive user of alcohol. You accepted that both this offending and much of your prior offending occurred in the same context.
17Mr Parker was not of the opinion that you presented with any personality disorder, although opined that it was likely that you met the criteria for substance use disorder and a mood disorder. He was of the opinion that you were depressed and that you would require assistance to improve your functioning. Doubtless, he is right about that.
Prior history
18You do have a somewhat relevant prior criminal history, which is admitted. It reflects your general transience and drug and alcohol use.
19You first appeared at the Frankston Children's Court on 9 September 2010 in relation to 19 charges of attempted theft from motorcar, as well as charges of burglary and theft. At that time, you were placed on a good behaviour bond, without conviction, for a period of 12 months.
20You then appeared at the Frankston Children's Court on 17 March 2011 for a charge of deal property suspected to be the proceeds of crime and were again placed on an adjourned undertaking without conviction for a period of 12 months.
21On 20 January 2012 you appeared at the Dandenong Magistrates' Court for a charge of intentionally damaging property and were again placed on a good behaviour bond.
22On 7 August 2014 you appeared at the Frankston Magistrates' Court for charges of shop theft, commit indictable offence whilst on bail and state false name. You were placed on an adjourned undertaking for a period of 12 months.
23On 24 March 2015 you appeared at the Frankston Magistrates' Court for charges of possess Diazepam and commit indictable offence whilst on bail and were fined the amount of $100.
24On 15 April 2016 you appeared at the Frankston Magistrates' Court for charges of assaulting a protective services officer, shop theft, failing to answer bail, theft and committing an indictable offence whilst on bail. At that time, you were convicted and placed on a community corrections order for a period of 12 months, with treatment conditions.
25You next appeared at the Frankston Magistrates' Court on 10 November 2017 in relation to charges of theft, unlawful assault, failing to answer bail, affray, contravene conduct condition of bail, graffiti and possess controlled weapon without excuse. You were convicted and sentenced to three months' imprisonment, with 78 days being reckoned as having already been served. On that same day, you were dealt with for contravening the community corrections order imposed upon you on 15 April 2016 and the order was cancelled. You were convicted and sentenced to two months' imprisonment.
26On 14 April 2018 you appeared at the weekend court at the Melbourne Magistrates' Court for charges of theft of motor vehicle, commit indictable offence whilst on bail, shop theft, assault with a weapon and possess controlled weapon without an excuse. You were convicted and sentenced to two months' imprisonment, of which one day was reckoned as having already been served.
27The last appearance on the criminal record before me was at the Frankston Magistrates' Court on 24 October 2018, when you appeared in relation to charges of shop left, criminal damage, affray, recklessly cause injury, commit indictable offence whilst on bail and contravene a conduct condition of bail. At that time you were convicted and sentenced to 75 days' imprisonment, which was reckoned as having already been served. Your offending before this court was only a matter of weeks after your release from that sentence.
28I have been advised today that two brief sentences have been imposed upon you whilst you have been on remand. They include a sentence of one month and another sentence of 14 days.
29Whilst not to be punished for your previous offending a second time, this criminal history would indicate that supervisory orders designed to foster your rehabilitation, and short, sharp shocks by way of terms of imprisonment, have not deterred nor assisted you. Whilst your criminal history presents as relatively low-level street offending, it is doubtless not without its impact on other members of the community, as was your offending of 17 November 2018.
30There is clearly some need to deter you, as well as to consider denunciation and protection of the community. This history is also relevant to an assessment of your prospects of rehabilitation. These prospects are hard to gauge on the information before me, other than the impact upon you of the time you have spent on remand, to which I will return.
Chronology
31A brief chronology of the history of your matter has been provided.
32You were charged with the offence of armed robbery on 17 November 2018. At a committal hearing on 14 February 2019 a plea of guilty was indicated. At a plea hearing listed on 20 June 2019 you indicated an intention to plead not guilty.
33You were granted bail on 19 October 2020, but failed to appear at a directions hearing on 5 July 2021 and a warrant was issued.
34On 12 July 2021 you were arrested and remanded into custody.
35For you, trials listed on 17 August 2020, 6 August 2021 and 12 October 2021 were all vacated due to the COVID-19 pandemic.
36There has been considerable delay in this matter getting on. I take the view, in the circumstances, that would be a significant burden upon you.
Plea of guilty
37Your plea of guilty to the charge now on the indictment, robbery, as opposed to armed robbery, was indicated by you and agreed to by the Crown on or about 27 October 2021, and thus the plea was listed in this court today. In that sense, it is an early plea.
38It is also one which has the utilitarian value of saving the court the time and expense of contested proceedings, a factor which the Court of Appeal has made clear has additional value during the court's need to respond to the COVID-19 pandemic in order to ensure certainty and finality for all those involved.
39As of the date of this plea hearing, your pre-sentence detention is some 784 days, not including the date of the plea. Much of this period has been during the Corrections response to the COVID-19 pandemic. I accept in general terms this has meant less freedom of movement, less access to visits and less access to programs, making the prison setting more onerous than it would otherwise be. This is a factor of some significance in the sentencing exercise.
Deportation
40You have recently been told that you do not hold Australian citizenship.
41I accept that this will now place you in a position where you are concerned, genuinely, about where your future lies and is an additional burden. Whilst you do not seek to make much of this, I do take it into account in a general sense in the sentencing exercise.
Sentencing
42The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters. These do include the seriousness of your offending, your culpability for it, your personal circumstances and those of your victim.
43I must also balance the interests of the community in denouncing criminal conduct, with the interests the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
44I have also taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act. I have taken into account current sentencing practices for the offence of robbery, as well as the principles of proportionality. Before I turn to the sentencing exercise, I just want to check that factually I am all right from your end, Mr Kenny, and there is nothing that you wish to raise?
45MR KENNY: No, Your Honour, there's nothing.
46HER HONOUR: No. Thank you. Mr Cameron?
47MR CAMERON: No, Your Honour, no.
48HER HONOUR: No. Mr Rapana, you have now spent the longest period to date that you have been required to serve in custody.
49On the positive side of the ledger, that period is certainly capable of acting as a sanction and hopefully a deterrent for the future and given you the opportunity to have a good hard think about where that future lies. On any view of it, you have spent long enough in custody directly referrable to your offending of 17 November 2018 and all relevant sentencing factors. Indeed, in my view, the period you have spent on remand far exceeds what would be an appropriate sentence.
50With that in mind, accordingly, on the single charge of robbery you are convicted and sentenced to 12 months' imprisonment.
51I take into account the 784 days which you have served to date and reckon it as already served, according to s18 of the Sentencing Act.
52Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charge. If not for your plea of guilty I would have sentenced you to a total effective sentence of 20 months, with a minimum of 14 months before being eligible for parole.
53Now, I have only just spoken to each of you, but I will just check that there is nothing further before I will leave and give you the chance to speak to your client privately, Mr Kenny.
54MR CAMERON: Thank you, nothing from the prosecution's side.
55HER HONOUR: All right.
56MR KENNY: Nothing from me, Your Honour, may it please the court.
57HER HONOUR: All right, well, thank you, I'll stand down until 2.15.
‑ ‑ ‑
0
0
0