Director of Public Prosecutions v Rauroro

[2020] VCC 565

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02146

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIRECI RAURORO

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2020
DATE OF SENTENCE:	6 May 2020
CASE MAY BE CITED AS:	DPP v Rauroro
MEDIUM NEUTRAL CITATION:	[2020] VCC 565

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Goetz	Office of Public Prosecutions
For the Accused	Mr Cooper	Randle Cooper Lawyers

HIS HONOUR:

1Sireci Rauroro, you have pleaded guilty to one charge of aggravated carjacking, one charge of kidnapping, one charge of attempted robbery, one charge of causing injury intentionally, one charge of knowingly resisting an emergency worker on duty and three related summary offences; Charge 9, drive manner dangerous; Charge 11, unlicensed driving; Charge 15, drunk in a public place.

2These offences carry the following maximum penalties: aggravated carjacking, 25 years' imprisonment. Aggravated carjacking has a mandatory minimum non-parole period of three years' imprisonment pursuant to s.10AD of the Sentencing Act 1991. In addition the term of sentence must be at least six months more than the non-parole period pursuant to s.11(3) of the Sentencing Act 1991.

3There is an exemption if the court finds that 'a special reason' exists in accordance with s.10A of the Sentencing Act 1991. There was no submission on your behalf that 'a special reason' exists in this case.

4Kidnapping, 25 years' imprisonment. The offence of kidnapping is a category 2 offence under s.3(1) of the Sentencing Act 1991.

5Attempted robbery, 10 years' imprisonment; causing injury intentionaly, 10 years' imprisonment; knowingly resisting an emergency worker on duty, five years' imprisonment.

6The related summary offences, dangerous driving, fine of not more than 240 penalty units or imprisonment for a term of not more than two years or both.  Licence cancellation and disqualification for not less than six months.  Unlicensed driving, a fine not exceeding 60 penalty units or imprisonment for not more than six months.  Being drunk in a public place 20 penalty units or imprisonment for one month.

7I note in relation to unlicensed driving, s.18(3)1A of the Road Safety Act applies to you and in relation to the offence of being drunk in a public place this is a second or subsequent offence for you.

8It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution plea opening.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

9Throughout the afternoon and evening of 14 July 2019 you were drinking very heavily.  You and the victim attended Mac's Hotel in Melton.  At approximately
2 am on 15 July 2019, the victim left the hotel to buy cigarettes.  A short time later you were removed from the hotel by security.  The victim saw you trying to scale a fence into the smokers area of the hotel.  He approached the fence and asked if one of the patrons was all right.  You then started to abuse the victim and without provocation you punched him to the face and body.  You also pushed him to the ground.  After he got up you were walking to his car when you punched him again causing him to fall.  (Charge 4, causing injury intentionally).

10I did view CCTV of the early part of this nasty incident.

11While assaulting the victim you said, 'Where the fuck's your car?  Give me your keys, get in the fucking car'.  (Charge 1, aggravated carjacking; Charge 2, kidnapping).

12The victim got into the driver's seat and drove his motor vehicle at your request as he was very frightened of you.  You continued to punch him as he was driving.  You forced him to stop the car.  You continued to punch him, he was bleeding heavily from the face.  You then drove the victim's motor vehicle whilst he was in the passenger seat.  (Charge 2, kidnapping and summary Charge 11, unlicensed driving).

13The victim helped you by turning on the car lights but you continued to punch him.  You forced the victim to give up his wallet and mobile phone and requested the pin number for the phone.  (Charge 3, attempted armed robbery).

14You continued to assault the victim whilst driving the car.  You eventually accelerated heavily and drove the car off the road and down an embankment into a creek.  (Summary Charge 9, dangerous driving).

15You and the victim left the partially submerged car and you said to the victim, 'The car is your problem now'.  As you and the victim walked away the police intercepted you, you were drunk in a public place (Summary Charge 15), and you resisted police (Charge 5, knowingly resisting an emergency worker on duty).

16You were resisting police when they tried to arrest you.  It was ultimately necessary for the police to deploy OC foam upon you.  This had an immediate effect.  You tried to run away from the police, however a member of the public intervened and you were eventually apprehended.

17At the time of the offending you held a suspended learners permit.

18I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has by your plea been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept on all the material before me that you are genuinely remorseful.

19I have been told something of your personal circumstances.  You are 25 years of age, having been born on 31 August 1994.  You had a stable childhood and completed Year 12 at secondary school.  Your principle employment has been as a bricklayer.

20You are in a stable de facto relationship.  You and your partner have a 12 month old daughter.  You have strong support from family and friends.

21You have a history of substance abuse involving alcohol and drugs.

22A psychological report has been prepared by Daria Sizenko, provisional psychologist, supervised by Pamela Matthews, forensic psychologist.  They are of the opinion that you meet the diagnostic criteria for alcohol abuse disorder and cannabis use disorder.  They are also of the opinion that your cocaine and methamphetamine use has been problematic.

23You presented to them with some symptoms of depression.  It was their opinion that you met the diagnostic criteria for persistent complex bereavement disorder.  They were of the opinion that there was a linear connection between your grief and an escalation in your substance misuse over the past four years and between your substance misuse and offending.

24They expressed the opinion that your offending presented as out of character.  It was consistent with an alcohol blackout in which you were perceived as functioning and yet you had no recollection of events over a period of time.

25You are a relatively young man, this is your first time in custody.  You have been using your time in custody in a most constructive manner (see Exhibit 7, bundle of certificates).

26A large number of references and testimonials contained detailed descriptions from family and friends of your many good qualities (Exhibit 6).

27I assess your prospects of rehabilitation as being good.

28Against these matters in mitigation, however, your actions were very serious indeed.  This was a deplorable incident involving a number of criminal acts.  It was a terrifying ordeal for the victim.

29He has provided a powerful victim impact statement.  In that statement he describes the dramatic change to his life following this incident.  His past life had been in turmoil for a number of years.  He was beginning to rehabilitate himself, however his progress has been set back by these events.  He described his world falling apart.  He does not socialise as he used to.  He has difficulty going out and prefers the company of his father or stepmother, or a trusted friend.  He has major anxiety.  He takes medication and receives counselling.  He experiences panic attacks when trying to sleep.  The events on this night have adversely affected his social, recreational and domestic activities.  He feels that he has lost his independence.

30You have admitted before me prior convictions for offences of drunk in a public place, assault police and intentionally damage property and drink driving.  Some of these prior convictions are relevant to my task of sentencing you today, although they were relatively minor matters.  This is reflected in the penalties imposed.

31It is agreed that the pre-sentence detention is 286 days.

32As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged.

33I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  It is not in issue that I must impose a sentence of imprisonment.

34It was submitted on your behalf that an appropriate overall sentence ought not exceed the statutory minimum of three years and six months, with a non-parole period of three years.  It was submitted on behalf of the prosecution that such a sentence was not outside the range of appropriate dispositions.

35I am bound by the statutory provisions that I have referred to.  I shall impose individual sentences with some degree of cumulation having regard to the number and nature of offences taking into account that this was, in effect, one extended incident of offending.  I do not intend to impose an overall total effective sentence or non-parole in excess of the statutory minimum.

36Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows:  Charge 1, convicted and sentenced to three years' imprisonment; Charge 2, convicted and sentenced to two years' imprisonment; Charge 3, convicted and sentenced to 12 months' imprisonment; Charge 4, convicted and sentenced to 12 months' imprisonment; Charge 5, convicted and sentenced to nine months' imprisonment.

37Summary Charge 9, convicted and sentenced to six months' imprisonment.  Any licences you hold are cancelled and you are disqualified from obtaining a motor vehicle licence for a period of two years from this date.  Summary
Charge 11, convicted and sentenced to one months' imprisonment.  Summary Charge 15, convicted and sentenced to seven days' imprisonment.

38I direct that three months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 3 and one month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  Otherwise, the sentences be served concurrently.

39The total effective sentence is three years and six months' imprisonment.  I direct that you serve a minimum term of three years before becoming eligible for parole.

40As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time that you spent in custody is 286 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

41Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and
non-parole period I would have imposed but for the plea of guilty is a total effective sentence of five years' imprisonment, with a non-parole period of three years and six months.

42Does that cover all the formalities?

43MR GOLTZ:  It does, Your Honour.  When Your Honour summarised the facts there was one slight error, thought I'd bring it to your ‑ ‑ ‑

44HIS HONOUR:  Yes?

45MR GOLTZ:  Your Honour described the victim approaching the smokers area fence of the hotel and saying words, 'You all right, mate?'  That was not directed at the accused but rather one of the patrons in the smokers area.

46HIS HONOUR:  All right, thanks for that.

47MR GOLTZ:  Thank you, Your Honour.

48HIS HONOUR:  I must have misread that.  Just let me - yes, the learned prosecutor's just corrected a minor factual mistake that I made.  The victim did not approach you, asked you if you were all right, he approached one of the patrons in the smokers area and asked that person if they were all right.

49MR GOLTZ:  Thank you, Your Honour.

50HIS HONOUR:  Thanks.

51MR COOPER:  Thank you, Your Honour.

52HIS HONOUR:  Thanks, Mr Goltz and Mr Cooper for your help.  I will just stand down, do you want the link left on for a minute or two?

53MR COOPER:  No, that's fine, Your Honour.

54HIS HONOUR:  Mr Rauroro, we will cut the link.  I am going to cut the link.

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