Director of Public Prosecutions v Rei-Paku
[2017] VCC 1032
•28 July 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-00912
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY REI-PAKU |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 28 July 2017 |
| CASE MAY BE CITED AS: | DPP v Rei-Paku |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1032 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Gibson | |
| For the Accused | Ms C. Hollingworth |
HIS HONOUR:
1Ashley Rei-Paku, on 25 July 2017, you pleaded guilty to 20 charges on the indictment No.F13877166A. You also consented to five summary charges to be before this court and pleaded guilty to them. A summary of the indictable charges and the penalties is as follows.
2Charges 1, 3, and 11 were charges of handling stolen goods. The maximum penalty for those charges is 15 years' imprisonment. Charges 2, 4, 5, 6, 7, 8, 13, 14 and 16 are charges of theft. The maximum penalty for those charges is ten years' imprisonment. Charges 9 and 15 are reckless conduct endangering persons. The maximum penalty for that is five years' imprisonment. Charges 10 and 20 are prohibited person possessing a firearm. The maximum penalty for that is ten years' imprisonment.
3There is one charge of obtaining property by deception which was Charge 12, ten years' imprisonment is the maximum penalty for that charge. Charge 17 was a charge of reckless conduct endangering life. It has a maximum penalty of ten years' imprisonment. There were two charges of criminal damage, Charges 18 and 19, and for each of those charges the maximum penalty is ten years' imprisonment.
4In respect of the summary charges, the maximum penalties are as follows. In respect of the possess a prohibited weapon, it is two years' imprisonment or 140 penalty units. In respect of the charge of possessing cartridge ammunition without a licence, it is 40 penalty units. For the two charges of unlicensed driving, the maximum penalties are three months' imprisonment or 25 penalty units, and for the charge of drive in a manner dangerous, the maximum penalty is two years' imprisonment or 240 penalty units.
5I turn to the circumstances of your offending. The circumstances of your offending are a crime spree covering a period between 11 October 2015 and 19 November 2015 and have been fully set out in the prosecution summary for the purposes of this plea hearing. That summary was dated 4 July 2017 and is Exhibit A on the plea hearing.
6For the purpose of this sentence, it is appropriate to repeat some of it. The background of your offending is as follows. Operation Kent was an investigation created to investigate a series of incidences and alleged offences which occurred in the western suburbs between 5 August 2015 and 11 October 2015 and between 6 November 2015 and 19 November 2015.
7You were born on 1 January 1992 and you were aged 23 at the time of the offending. At the time of your arrest in November 2015, you resided at 33 Masthead Way in Werribee South and your girlfriend Georgia Barnwell was there as well, together with your brother Shannon Rei-Paku and Nicole Sanford.
8In respect of Charge 1 which is handling stolen property which is a red Mazda6, between 9 pm on 10 October and 8 am on 11 October 2015, a 2009 red Mazda6, registration number XDF 958 was stolen from the garage of residential premises in Hamish Drive in Tarneit. Access to the garage was gained via the residential premises connected to the garage. The red Mazda was owned by Amanda Orchard and the approximate value was between $15 and $20,000.
9Five weeks later on 19 November 2015, you were arrested driving that red Mazda in the Werribee Shopping Plaza carpark situated at 215 Derrimut Road, Hoppers Crossing. That is the handling stolen goods in Charge 1. At the time of your arrest, the Mazda XDF 958 bore the registration plate numbers of XEQ 082. That is, prior to 19 November 2015, the registration plates of XDF 958 were removed and the registration plates XEQ 082 which had been stolen some 24 to 48 hours earlier were placed on this red Mazda. You received the stolen car subsequent to its theft.
10Charge 2 is a charge of theft of the number plates 1DH 2CM. Between 4.30 on 6 November 2015 and 4.55 on 8 November 2015, two number plates 1DH 2CM were stolen from a 2014 red Mazda3 sedan parked in the driveway at the premises at Ensign Street in Maribyrnong. That car was owned by Rebecca Mason. This is Charge 2. One of the number plates, 1DH 2CM was located by police on 9 November 2015 at 94 Eureka Drive in Wyndham Vale where you had been staying in early November 2015. Another of the number plates, 1DH 2CM was located by police on 22 December 2015 at Evergreen Terrace, Wyndham Vale, which was on a Mazda XEQ 082 which was owned by Helena Pace, I will come back to that. You stole these plates and you were still in unlawful possession of them at the time of your arrest.
11The handling of the stolen red Mazda3 registered number XDS 856. Between 8.15 am on 14 November 2015 and 10 am on 17 November 2015, a 2009 red Mazda3 registered number XDS 856 was stolen from a rear carpark of the Caltex service station in Werribee. The car was owned by Sarah Mummery and was worth about $12,000. Access was gained by removing the door handle from the front driver's door. This motor vehicle was subsequently located at your address at 33 Masthead Way in Werribee South on 19 November 2015. That is Charge 3.
12Charge 4 is the theft of items from a Ford transit van. Between 3.30 pm on 14 November 2015 at 9 am on 15 November 2015, items were stolen from a 2015 Ford transit van parked at Clematis Crescent in Wyndham Vale. The driver's side door lock and the ignition had been manipulated. The van and its contents were owned by John Blaine who was a Chubb security officer by occupation. Stolen from the van were identification cards relating to John Blaine, four iron steel boxes containing pressure flow meters, hydraulic and engine oils, nitrogen bottles and the engraver, a variety of green cases containing Holmatro spare parts, rescue equipment and assorted power tools and pressure flow gauges which belonged to Chubb Security.
13The identification cards were located in the stolen red Mazda XDF 958 being driven by you when you were arrested on 19 November 2015 at the Werribee Plaza carpark. Various toolboxes and Holmatro spare parts were subsequently located by police at your residential address in Masthead Way in Werribee South. That summary completes the first part of your criminal activity.
14The remaining charges, the background to them is as follows. In October 2015, you began residing at 94 Eureka Drive in Wyndham Vale. These premises were occupied by Nicole Harding and her ten-year-old son. Ms Harding was a tenant at the premises. Your girlfriend Georgia Barnwell also moved into these premises as did your brother, Shannon Rei-Paku. In approximately mid-November, Ms Harding was required to vacate those premises. Accordingly all occupants including yourself were required to move out of 94 Eureka Drive, Wyndham Vale. New premises were secured at 33 Masthead Way in Werribee South and it was to these premises that you, Ms Barnwell and Ms Harding were moving. From Friday 13 November 2015, Ms Harding, you and Ms Barnwell commenced moving your belongings from 94 Eureka Drive at Wyndham Vale to 33 Masthead Way in Werribee South. The move happened over a number of days up to and including 18 November 2015. Some of the items which required moving were large furniture items such as a table and a wardrobe. These items required a vehicle much larger than a sedan for transport to the new premises.
15The theft of the blue Nissan Navara ute is Charge 5. The theft of petrol is Charge 6. Between 7 pm on Monday 16 November 2015 and 9.30 am on Tuesday 17 November 2015, a blue Nissan Navara ute, QYX 759, was stolen from outside the commercial premises in Cranwell Street in Braybrook. Access was gained by forcing open the driver's door and manipulating the ignition. The blue Nissan ute was owned by Mr Son Vo and was valued at approximately $7,500. That is Charge 5. Inside the ute, there was Essendon Nissan service books, jacks and tyre ropes and identification documents of Mr Son Vo.
16Charge 6 is that at 7.30 pm on 17 November 2015, the Nissan ute was filled up with petrol at the Caltex service station at Watton Street in Werribee. It was then driven away without paying for petrol valued at $76.21. That was Charge 6.
17Following some concerns from members of the public on 19 November 2015, the blue Nissan ute was recovered by police in a vacant lot at Aquatic Drive in Werribee South, approximately 500 metres from your residential premises at 33 Masthead Way in Werribee South. The blue Nissan ute service documents and Mr Son Vo's identification documents were located by police at your residential address, 33 Masthead Way, Werribee, on 9 November 2015.
18Further investigations revealed that you were in possession of the blue Nissan ute over two days following its taking and in particular at 4.12 pm on Wednesday 18 November when you drove it from 94 Eureka Drive. You were seen on a neighbour's CCTV. At 12.16 am on Thursday 19 November, you drove it into the Laverton North BP service station, again seen on CCTV and its ultimate discovery just a short distance from your premises.
19Charge 7 is the theft of the cage box trailer identified as W88882. Between 8 pm on 17 November 2015 and 8 am on 18 November 2015 - this is just shortly after the Nissan ute was stolen, the silver cage box trailer registered W88882 was stolen from outside residential premises at Gembrook Street in Wyndham Vale. The box trailer was owned by Robert Sutherland. The trailer was empty at the time it was stolen and its value was approximately $1,260. Further investigations by police revealed that you were in possession of the box trailer and I will not detail the full set out particulars of that investigation but that was Charge 7.
20Charge 8 is theft of number plates XEQ 082. Between 8 pm on 17 November 2015 and 8 am on 18 November 2015, number plates XEQ 082 was stolen from 2009 red Mazda3 sedan owned by Helena Pace which had been parked in the driveway of the residential premises at Evergreen Terrace in Wyndham Vale. This is Charge 8. The previously stolen number plates of 1DH 2CM was affixed to the rear of the vehicle in its place. The stolen number plates XEQ 082 were placed on the red Mazda XDF 958. These plates XEQ 082 were covered from the red Mazda XDF 958 on 19 November 2015 when you were arrested at the Werribee Plaza Shopping Centre carpark.
21Charges 9 and 10, these are charges of reckless conduct endangering persons, Mr Peters, and a prohibited person possessing a firearm. On the Wednesday 18 November, you were at 94 Eureka Drive in Wyndham Vale for the purpose of assisting with the removal of furniture items from that house. Also in attendance were your girlfriend Ms Barnwell, another person named Peter Kearney was also in attendance for a short period. He was collecting a white leather couch. For the purpose of transporting the furniture from your premises, you were in possession of the stolen Nissan Navara blue ute and a stolen box trailer.
22At approximately 4 pm on 18 November 2015, an off-duty policeman, Mr Peters, observed your girlfriend Ms Barnwell driving the Nissan ute and box trailer in a fast and erratic manner. He followed Ms Barnwell to 94 Eureka Drive in Wyndham Vale. Mr Peters made an enquiry of Ms Barnwell as to what she was doing. You were present. After Peters spoke to Ms Barnwell, you shouted to him, "You're fucked". You approached Peters in an aggressive manner. The Nissan ute at that time was in the driveway. You then walked to the rear passenger door of the Nissan ute and removed the 22-calibre Remington rifle wrapped in a blue towel. You proceed to unwrap the towel and walk towards Mr Peters holding the rifle. As you walk towards the rear of Peters' car, he drove off to get himself out of that situation. As he drove away along Eureka Drive, you fired one shot in the direction of his car. That is the charge of reckless conduct endangering serious injury and also you are a prohibited person in the possession of a firearm.
23The bullet that you fired struck the rear tailgate of Mr Peters' station wagon. A photograph of that was tendered during the course of the plea. A short time after that, you can be seen on the CCTV driving the blue Nissan ute and the box trailer out of the driveway at 94 Eureka Drive in Wyndham Vale. Police attended at the address on 19 November 2015 and located that discharged cartridge. At the time of your arrest in the Werribee Plaza, you were found in possession of a .22 rifle and a blue towel.
24Charge 11 is handling stolen goods belonging to Mr Micallef. Just after midnight on Thursday 19 November, you drove the blue Nissan ute to Wendouree Parade, Caroline Springs. Mr Paulson was a front passenger seat in that blue Nissan ute. At the time, a white 2015 Mazda BT50 ute registered number 1FD 891 owned by Mr Micallef was parked in Wendouree Parade. The blue Nissan ute pulled up beside the white Mazda BT50 ute. Two people, one of them being James Paulson and a person other than yourself, entered the ute by smashing the driver's window. The other person and Paulson stole personal belongings and tools from that ute.
25Mr Micallef and his father Mario Micallef were at home at Wendouree Parade and heard the smashing glass. They could see the blue ute parked next to their white ute. They went outside and confronted the two persons who by this stage had returned to the blue Nissan ute. The persons all then drove off in the Nissan ute. You came in possession of these stolen goods a short time later. That is, as I say, Charge 11. From the white Mazda BT ute, credits cards in the name of Julian Micallef, passport in the name of Julian Micallef, service books relating to the ute and other items were stolen. Mr Micallef's passport and the service books for that Mazda ute were found by police on 19 November 2015 at your premises at 33 Masthead Way in Werribee South.
26Charge 12 and 13 are charges of obtaining property by deception and theft. Just after midnight on 19 November 2015, you drove the Nissan ute into the BP service station Little Boundary Road in Laverton North. The vehicle can be clearly seen on CCTV. You went into the service station, you purchased various items within that shop there. These items were purchased by you using the credit card in the name of Julian Micallef which had just been stolen shortly before. That is a charge of obtaining property by deception. You also stole a second packet of LED lights when the attendant was not looking. That is Charge 13. You were in possession of both packets of LED lights when you were arrested later that day.
27You were identified by your LA Lakers 24 basketball singlet and an interlocking silver chain worn around your neck and a red glove and a jacket that you were in possession later on on 19 November 2015 when you were arrested at Werribee Plaza.
28Charge 14 is the theft of Victor tool trailer. A short time later between 12.30 am and 3.20 am on 19 November 2015, you attended at Pedder Street in Wyndham Vale and stole a Victor tool trailer registered number W95 216 owned by Mitchell Paterson. You attached the Victor tool trailer to the Nissan ute and drove away. It contained some $5,000 of power tools and hand tools. The Victor tool trailer was found by police at your address 33 Masthead Way, Werribee South, on 19 November 2015.
29Charge 15 is a charge of reckless conduct endangering persons. This is shooting at the police officers. In the early hours of Thursday 19 November 2015, Acting Sergeant Langerak from Werribee police station received a briefing about a shooting incident involving an off-duty policeman and a blue Nissan ute with a box trailer attached which had occurred in Wyndham Vale on the previous day. At 3.24 am on Thursday 19 November 2015, the blue Nissan Navara ute was observed by police, that is, Acting Sergeant Langerak and Senior Constable McCrann travelling along Kookaburra Avenue in Werribee. It was towing the Victor tool trailer. The driver of the blue Nissan ute was yourself.
30The police officers who were in a marked police Ford Territory vehicle attempted unsuccessfully to intercept the blue Nissan ute whilst it was travelling on Derrimut Road in Hoppers Crossing. The police had activated their blue-and-red emergency lights. You then began driving the blue Nissan ute on the incorrect side of the road. You did not pull up for the police. The police abandoned the chase of your vehicle at that time. In relation to that driving, you have been charged with the summary charge of driving in a manner dangerous which is summary Charge 47.
31A short time later, Acting Sergeant Langerak and Senior Constable McCrann were travelling north on Derrimut Road in Hoppers Crossing near its intersection with Warringa Crescent when the blue Nissan ute driven by yourself was seen travelling slowly along Derrimut Road toward the police vehicle. At 3.28 am, the two vehicles passed each other and as they did so, the firearm was discharged from the front driver's window of the blue Nissan ute, striking the police car at the front driver's panel some two or three from the position of the driver or passenger. The bullet penetrated the front quarter panel of the police vehicle. That is the charge of reckless conduct endangering persons.
32The blue Nissan ute then returned to 33 Masthead Way in Werribee South where that Victor tool trailer was secreted in the garage. It was later found there by police. At 7.20 am on 19 November 2015, police investigators located the .22 bullet on the western side of Derrimut Road near its intersection with Warringa Crescent.
33Charge 16 is theft of number plates TMW 213. On Thursday, the same day, 19 November 2015, two number plates TMW 213 were stolen from a 2005 Mazda3 sedan. These number plates were located by police at your premises on 19 November 2015.
34The next and remaining set of charges concern the incidents at the Werribee Plaza Shopping carpark. These are Charges 17 to 20. These charges are reckless conduct endangering persons, criminal damage and being a prohibited person in possession of a firearm.
35At 5.25 pm on 19 November, you drove the red Mazda XDF 958 to the Werribee Shopping Plaza situated at 215 Derrimut Road in Hoppers Crossing. You were in the company of two females being Ms Barnwell and Tamika Morrison. You parked the red Mazda in the multi-storey carpark and you were positioned with the nose of this vehicle facing the carriageway. You waited there whilst at least one of the women went shopping. Members of the special operations group from Victoria Police were engaged to effect the arrest of yourself on behalf of the investigators in this case. By then, there had been two shootings in the Werribee area in the previous 24 hours.
36At 5.55 pm, the special operations group members in three vehicles entered the carpark. One of the vehicles from the special operations group blocked the path of your red Mazda vehicle to prevent you from driving off. The special operations group members got out of their vehicle and immediately identified themselves and called upon you to get out of the vehicle. You did not comply with that direction. You then, in order to avoid arrest, reversed the red Mazda into the vehicle which was parked behind you. That was a silver Toyota sedan. You did that under acceleration.
37You then drove the red Mazda vehicle backwards for more than a car length in distance. This driving manoeuvre had the effect of pushing the silver Toyota sedan backwards causing forcibly to collide with a Hyundai Getz vehicle parked in the rows behind. At the time your red Mazda reversed, Mr Deng and his wife Ms Sonal Sonal were standing at the rear of that Hyundai vehicle getting ready to place their two-month-old baby into that pram which was positioned next to the boot of the Hyundai. That is the charge of reckless conduct endangering lives of those three people.
38The force of the impact of the silver Toyota caused the crushing of the pram against the boot of the Hyundai. There was a photograph tendered in respect of that on the plea. The Crown alleges that the decision by you to reverse the red Mazda XDF 958 at speed in a busy carpark in circumstances where shoppers were getting in and out of their cars placed or may have placed people in danger of death.
39After you had done that, you then proceeded to deliberately ram the special operations group vehicle which was blocking your path. You did this from a position of almost two car lengths' away, driving directly forward at the four-wheel drive vehicle causing damage to the passenger side of the four-wheel drive vehicle. That is part of Charge 18, which is criminal damage. Mr Deng and Ms Siurnal rushed to the rear of the Hyundai and attended to their child. You then reversed again at speed this time travelling more than two car lengths on an angle and impacting into a dark-colour Commodore, then a white Proton parked in the bays next to the Hyundai. That is criminal damage Charge 19.
40There was a video film shown of this during the course of the plea. It is alleged that the decision by you to reverse the red Mazda at speed and at an angle in circumstances where Mr Deng and Ms Siurnal were still in the vicinity further placed or may have placed them in danger and anyone else that was there. You then surged back and forward in your red car, colliding with parked vehicles in an attempt to clear a path to escape. That is also part of Charge 19, criminal damage.
41The special operations group members were forced to take evasive action to avoid being struck by you with your car. Your vehicle then became lodged on one of the cars in the carpark which allowed special operations group members to reposition their vehicles and box you in completely. You managed to dislodge your car from the Commodore and then drove forward, colliding with two more police vehicles. Again that is part of the Charge 18, criminal damage.
42You refused to get out of the vehicle when commanded to do so by the police members in attendance. The total damage to the motor vehicles involved at this time were approximately $40,000. Special operations group members then smashed the driver's window and deployed a Taser. The Taser was deployed on a second occasion as you tried to run away. There was a struggle and you were finally brought under control and arrested.
43The police located in your car knuckledusters and a knife was inside your pants. When they searched the car that you were driving, they located the Remington bolt action .22 calibre rifle loaded with seven rounds of .22 calibre ammunition. It was wrapped in a blue towel. That is Charge 20, prohibited person carrying a firearm. You were interviewed by police on 21 November 2015.
44In relation to the summary charges, the facts are as follows: as I say, there was summary Charge 16, possess a prohibited weapon which is the knuckledusters on the day of your arrest. Charge 21 was a possessing cartridge ammunition. These were found at your address on 19 November 2015 at Masthead Way in Werribee South. You were also charged with two charges of unlicensed driving which was your driving on 18 and 19 November 2015, and Charge 47 was drive in a manner dangerous which was your driving on the wrong side of the road at Derrimut Road, Hoppers Crossing, referred to earlier when the police tried to intercept you.
45Your offending is serious on any level. Your dishonesty charges show that you have no respect for other people's rights to property. You operate on the basis "I need it, I take it". Your violent offending is properly described as very serious. You have used a firearm to shoot at people on two separate occasions. The second occasion, your intended victims were police officers in a marked police vehicle.
46The most serious offending however was your conduct in the Werribee Plaza carpark on the day the police came to arrest you for your shooting offences. The ramming of the cars in an attempt to escape arrest was futile and frighteningly dangerous to persons in that area. The squashed pram shows how reckless and dangerous your behaviour was on that day. You had a loaded firearm in the car with you on the day of your arrest. You had become completely lawless with total disregard for any other person in your vicinity.
Victim Impact Statements
47There were victim impact statements filed on behalf of Julian and Mario Micallef, the victims of your crimes in Charges 11 and 12. They each set out the effect of your crimes in terms of them being without tools and their vehicle to work. They have installed further surveillance camera systems to their home and have even contemplated moving their address.
48The two police officers, Dylan Langerak and Christian McCrann had their victim impact statements read out in court. I will not repeat the contents here but suffice it to say that your offending of shooting at them whilst they were in a marked police vehicle has caused them serious psychological reaction and ongoing difficulties with their work and their personal lives.
49There were no victim impact statements from any of the other many victims of your crimes. I take the effect of your offending on the victims into account when fixing your sentence.
Your Personal Circumstances
50I now turn to your personal circumstances. You are now 25 years old. At the time of offending, you were 23 years old. Your family background has been unstable and unsupportive in your developing years. Your mother is a Maori who was born in New Zealand but has lived in Australia all of your life. Your mother has had problems with drug and alcohol abuse and that continues to this day. Your father is Australian-born but is also a drug abuser and has had significant periods of imprisonment. Your father has recently re-partnered with a woman by the name of Jessica who has two daughters aged seven and one.
51You have an older half-brother, Shannon, who had introduced you to drug use and that is the basis of your offending now. You have one younger sister, Jordan.
52In your family constellation, the bright light was your maternal grandparents. Unfortunately your grandfather passed away in June 2017. Your grandmother is the only non-drug-affected member of your family. In the past, your grandparents have taken you to New Zealand for a period of ten months in an attempt to break your cycle of drug abuse, violence and abuse generally and give you a chance at a fresh start. They also organised for you to obtain employment with Toll to normalise and regulate your life. Unfortunately that did not work.
53You have been subjected to violence from your mother from around the age of 13, 14 years old. Prior to that, you had seen your father physically abuse your mother. Your childhood has been dominated by violence in your home. You completed Year 9 education whilst living with your father in New South Wales. You returned to Melbourne at the age of 16. Your mother and brother Shannon were abusing drugs and alcohol at that time and you joined them and lived with them.
54You commenced a relationship with a woman by the name of Caitlin. At that time, you had employment as a concreter. Caitlin became pregnant but unfortunately miscarried at the four to five month stage of pregnancy. Following that, your drug use escalated. Consequently you lost your job and Caitlin left you.
55You have been in custody on remand for these offences since 19 November 2015. Your main contact and support from Ms Barnwell. She was in court on the day of your plea and had submitted that upon your release, you would return to live with her rather than return to the drug environment of your mother and your brother Shannon.
56For such a young person, you have an extensive criminal history. The summary of your prior court appearances is as follows: there are a total of 66 previous convictions resulting from six separate court hearings. These prior convictions include some of the following. On 20 July 2012, you appeared before me on armed robbery, theft, reckless conduct endangering life, burglary and drive in a manner dangerous charges. On 10 September 2012 at the Sunshine Magistrates' Court, you were dealt with for reckless conduct endangering life. On 21 November 2012 in this court before another judge, you were dealt with for armed robbery and theft. On 10 December 2012, you were dealt with in the Magistrates' Court for reckless conduct endangering serious injury, theft and handle stolen goods. On 27 November 2013 at the Sunshine Magistrates' Court, you were dealt with for burglary and theft of a motor car, and on 21 July 2014 at the Melbourne Magistrates' Court, you were dealt with for theft, assault with a weapon, obtaining property by deception, possessing a controlled weapon, carry prohibited weapons without approval and possessing cartridge ammunition.
57Prior to your offending in matters before this court, you had spent approximately 1000 days in either juvenile detention or prison. You had six weeks of freedom from that incarceration when you reoffended. You have been on remand in prison for a further 617 days awaiting sentence today.
58I have read the three reports prepared by Dr Aaron Cunningham, psychologist, dated 28 June 2012, 1 July 2014 and 14 July 2017. The current opinion is that you suffer from symptoms of trauma and depression that are at a clinical level. You present as a very damaged individual from a background of family violence, drug and alcohol abuse. You also had expressed an anxiety of police based on your experiences on your arrest in September 2013 and November 2015. You state the prison security officers in their uniforms trigger memories of the special operations group arrest of you on November 2015.
59You have adapted well to prison life. You have engaged in courses to increase your skill base. You have clean urine screens over an extended period and have been attending drug rehabilitative courses at Caraniche. All of these steps are positive signs for rehabilitation. However in the past you have offended in a short time after your release from custody. What happens on your release from custody at the end of this sentence is up to one person: you.
Sentencing Considerations
60I turn to sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them, your personal circumstances and those of your victims. I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as an offender are rehabilitated and reintegrated into society.
61You have pleaded guilty to these charges and it was indicated after the committal proceedings. Your plea has a utilitarian value allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
62You have, by your plea, relieved your victims from giving evidence against you. It facilitates some closure for them. Your plea is also a clear acknowledgement by you that you accept your responsibility for your criminal conduct in this case. Your plea also recognised you are willing to facilitate the course of justice in the community. I also accept your plea to these charges indicates and demonstrates some remorse on your part.
63As part of the governing principles to be considered in sentencing you, I must take into account the current sentencing practices. That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics of those sentences. I have considered those statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. I also take into account the sentencing practices as of now.
64You were 23 at the time of your offending. You are now 25 years old. In chronological terms, you are no longer a youthful offender. Nevertheless you have spent approximately 80 per cent of your life between the ages of 20 and now incarcerated. You have by your criminal past denied yourself the opportunity to grow up and mature in mainstream society.
65In the case of R v Mills, three propositions of sentencing were set out: (1) youth of an offender particularly a first offender - that is not you - should be a primary consideration in the sentencing court where the matters are properly raised; (2) in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending, thus for example in the individualised treatment, a focus on rehabilitation is preferred. As you know, that was the opportunity I tried to afford you last time I sentenced you.
66In more recent times, the Court of Appeal in R v Wyley [2009] VSCA 17 has made pronouncements on the consideration of youth and sentencing practices. President Maxwell stated as follows:
"Mills constantly reminds sentencing courts and this court on appeal that there is a great public benefit in the rehabilitation of offenders and in maximising the prospect that the offender will carry on a law-abiding life in the future. But the consideration is not unique to young offenders nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a longer period of imprisonment rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lyonson, R v Nguyen are not to be viewed as excluding the principles of Mills but simply as instances of how these principles are to be applied."
67The offending in this case calls for due weight to be given to the principles of general deterrence and the protection of the community. This was raised in the case of Azzopardi v The Queen (2011) VSCA 372 where Justices Redlich, Coghlan and Macaulay stated as follows:
"The general proposition which flows from these authorities is that where the degree of criminality of the offences requires the sentencing objective of deterrence, denunciation, just punishment and the protection of the community become more prominent in the sentencing calculus. The weight to be attached to youth is correspondingly reduced. As the level of seriousness of criminality increases, there will be a corresponding reduction in the mitigating effect of the offender's youth but only in circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations due to youth is all but extinguished."
68A substantial imprisonment sentence is the only appropriate disposition given your significant criminal history over your short life and the nature of your offending in this case. You were released from prison on 28 August 2015 without supervision or corrective support from the parole board. Your first offence in this series of offending occurred on 11 October 2015 only some six weeks after you were released from prison. You have been in custody since your arrest on 19 November 2015. The total time in custody is 701 days before your release on 28 August 2015 and 617 days since your arrest on 19 November 2015. I take these lengthy periods of imprisonment into consideration on the issue of totality.
69When sentences are imposed for numerous offences as in this case, the sentencing judge such as myself should stand back and look at the overall picture and decide whether the total of what would otherwise be an appropriate sentence is a fair and reasonable total sentence to impose on you. This is an aspect as I say of the totality principle. In Thomas' Principles of Sentencing, he says as follows:
"The effect of the totality principle is to require the sentencer who has passed a series of sentences each properly calculated in relation to the offence which is to be proposed and each properly made consecutive in accordance with the principles governing consecutive sentences. To review the aggregate sentencing, consider whether the aggregate is just and appropriate. The principle has been stated many times in various forms."
70In this case, you have offended after you had the opportunity to remain a free man as a law-abiding citizen. I am mindful not to impose a crushing sentence on you when fixing the cumulation between individual sentences particularly on the day of your arrest and the total of all the cumulated sentences. I have fixed a non-parole period which encourages you to continue your good behaviour in prison and your work as a billet. It also gives you the opportunity if granted parole to have the support and supervision upon your release from prison.
71I assess your prospects of rehabilitation as poor, but you are not a lost cause. You are young. It is up to you to make the most of any opportunity given to you by the parole board when you are released from prison. Also taking into account the assessment of Dr Cunningham in his report dated 14 July 2017 that you present with symptoms of trauma and depression that are of clinical concern. I accept that these symptoms will make your time in custody more burdensome than a prisoner who does not suffer from that psychological compromise.
72I take into account the submissions on your behalf that you are a risk to become institutionalised. The base of this submission is that you have spent a large portion of adult life in custody. The balancing factor to this submission is that you have offended in a very serious manner over a four-week period after being at liberty for only six weeks. Your offending calls for stern punishment to satisfy the sentencing requirements of general and specific deterrence, just punishment and protection of the community.
73Would you stand please.
74On Charge 1, you are sentenced to one year imprisonment.
75On Charge 2, you are sentenced to two months' imprisonment.
76On Charge 3, you are sentenced to one year imprisonment.
77On Charge 4, you are sentenced to four months' imprisonment.
78On Charge 5, you are sentenced to nine months' imprisonment.
79On Charge 6, you are sentenced to one month imprisonment.
80On Charge 7, you are sentenced to six months' imprisonment.
81On Charge 8, you are sentenced to two months' imprisonment.
82On Charge 9, you are sentenced to 18 months' imprisonment.
83On Charge 10, you are sentenced to one year imprisonment.
84On Charge 11, you are sentenced to six months' imprisonment.
85On Charge 12, you are sentenced to two months' imprisonment.
86On Charge 13, you are sentenced to one month imprisonment.
87On Charge 14, you are sentenced to six months' imprisonment.
88On Charge 15, you are sentenced to two years' imprisonment.
89On Charge 16, you are sentenced to two months' imprisonment.
90On Charge 17, you are sentenced to three years' imprisonment. That is the base sentence.
91Charge 18, you are sentenced to 18 months' imprisonment.
92Charge 19, you are sentenced to 18 months' imprisonment.
93Charge 20, you are sentenced to one year imprisonment.
94In respect to the summary charges, Charge 16, you are sentenced to one month imprisonment.
95Charge 21, you are fined $200.
96On Charge 45, you are sentenced to one month imprisonment.
97Charge 46, you are sentenced to one month imprisonment.
98On Charge 47, you are sentenced to three months' imprisonment.
99In terms of cumulation, as I said, Charge 17 is the base sentence of three years. Cumulated on that sentence is the following: in respect of Charge 1, three months; in respect of Charge 2, seven days; in respect of Charge 3, three months; Charge 4, one month; Charge 5, two months, Charge 6, seven days; Charge 7, two months; Charge 8, seven days; Charge 9, nine months; Charge 11, two months; Charge 12, seven days; Charge 13, seven days; Charge 14, two months; Charge 15, one year; Charge 16, seven days. As I say, Charge 17 is the base sentence. Charge 18, two months; Charge 19, two months; and Charge 20, three months.
100In respect of the summary charges 45, a cumulation of seven days; 46, cumulation of seven days; and Charge 47, one month.
101That is a total effective sentence of six years and ten months. I fix a non-parole period of four years and six months before you are eligible for parole.
102But for your plea of guilty, I would have sentenced you to a period of nine years with a minimum term of six and a half years. I declare that you have served 617 days pre-sentence detention which is to be deducted from the sentence I have just imposed.
103On Charges 1, 3, 5, 15, 17 and summary Charge 47, your licences are cancelled and you are disqualified for a period of two years from this day. There were forfeiture orders requested and consented to, I have signed two forfeiture orders and one disposal order in relation to your matters.
104Does that cover everything?
105MR GIBSON: Just two matters, Your Honour. The cumulation period on Charge 10 please?
106HIS HONOUR: Yes, there is none. It is wholly concurrent. Sorry, I didn't order the concurrency parts. That's fully concurrent and the same with summary Charge 16.
107MR GIBSON: If Your Honour please. And just lastly, Your Honour, in my Crown submissions Exhibit A, I omitted the letter "A" on the end of the indictment number which Your Honour obviously adopted so I just point out that the indictment of course ends in the letter "A".
108HIS HONOUR: Thank you, yes, thanks for that correction, I'll amend my sentencing remarks to reflect that because I referred to the number of the indictment in it.
109Yes, I have just been reminded in respect of the cumulation on summary Charge 47, there was a cumulation of one month. Yes. Is there anything, Ms Hollingworth?
110MS HOLLINGWORTH: No, Your Honour.
111HIS HONOUR: All right. I think your client wants to ask you something.
112MS HOLLINGWORTH: May I be excused?
113HIS HONOUR: Certainly.
114MS HOLLINGWORTH: Yes, I believe, Your Honour, I didn't hear this myself but referred to his current girlfriend as Georgia. It's not, it's Melissa who's back in court today. So Georgia was the girlfriend at the time of these offences but the current girlfriend is Melissa.
115HIS HONOUR: Yes, all right, thanks. Thank you.
116MR GIBSON: If Your Honour please.
117HIS HONOUR: Thank you. Remove the prisoner, thanks.
118Does that complete your matters here today?
119MS HOLLINGWORTH: Just the issue of the media application, Your Honour.
120HIS HONOUR: Yes, thanks, of course, the media thing, yes. Right. I just let you know what I have, I don't know whether the parties have been given copies of these. So I've got an application by Michael Scanlan from Seven News and Jayde Vincent from Nine News. In the first of those, Michael Scanlan was seeking - he's ticked the box for CCTV, footage of shots being fired at police. I think this plea, there was no such footage shown so I cannot release that because I never had it. So I think that deals with that. Is Mr Scanlan in court?
121VOICE (from the body of the court): Yes, Your Honour.
122HIS HONOUR: Did you hear what I just said then?
123VOICE (from the body of the court): Yeah.
124HIS HONOUR: Yes, so that wasn't shown. There's footage of - as I'll refer to in my sentencing remarks and this probably applies to Jayde Vincent's application from Channel Nine, there's two things ticked, the prosecution summary - well, I've read out the relevant parts of that, and the CCTV which is - of the - I assume you mean the 19 November arrest?
125I'll just - I'll hear the parties on it if they want to say anything.
126MS HOLLINGWORTH: There was no actual footage of him being arrested, it was in the ‑ ‑ ‑
127HIS HONOUR: No.
128MS HOLLINGWORTH: ‑ ‑ ‑ in the carpark and ‑ ‑ ‑
129HIS HONOUR: Yes. No, that's true. There is footage of the incident and - was there any concern from Victoria Police of the method in which they go about these arrests, Mr Gibson?
130MR GIBSON: No, Your Honour, there wasn't.
131HIS HONOUR: If there wasn't, then your position is neutral, I take it:?
132MR GIBSON: Yes.
133HIS HONOUR: I'm going to retain the copy that's handed up to me as an exhibit because it is an exhibit, that's why I retain it.
134MR GIBSON: Yes.
135HIS HONOUR: Is it possible that the Crown can facilitate the bit that relates to the incidents on 19 November?
136MR GIBSON: It is, and we have.
137HIS HONOUR: Thank you.
138MR GIBSON: And it's here.
139HIS HONOUR: Thank you.
140MR GIBSON: Excuse me, Your Honour, I'm trying to ‑ ‑ ‑
141It's also got the before and aftermath of the shooting at the off-duty police officer and I understand that the box ticked is footage of shots being fired. Of course as Your Honour quite correctly said, that moment is not captured but the before and after is, and I'm not sure if there's going to be a further application in relation to that. But if it is, the Crown's position again is the same as the Epping carpark plaza and at this stage, that image is also on this CCTV - on this disc that we have here. So ‑ ‑ ‑
142HIS HONOUR: Yes.
143MR GIBSON: I assume that that is - was part of their application although it was described as shots being fired. If it's enlarged in that way then both images are on this disc and that can be handed over.
144HIS HONOUR: Yes. Thanks. Well, as far as I'm concerned, that can happen.
145MR GIBSON: Yes.
146HIS HONOUR: I don't have them in my ‑ ‑ ‑
147MR GIBSON: It's not a matter for the court, that's right.
148HIS HONOUR: Yes, that's right. So I think I've dealt with those applications, thank you. That concludes the matters to Rei-Paku at the moment. Thank you very much for your assistance, Ms Hollingworth. No doubt you have had a very significant and sensible input to this case here, I thank you for it.
149MS HOLLINGWORTH: Thank you, Your Honour.
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