Director of Public Prosecutions v Rei-Paku
[2012] VCC 2210
•21 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01790
Indictment No CI2307232
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY REI-PAKU |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2012 | |
DATE OF SENTENCE: | 21 November 2012 | |
CASE MAY BE CITED AS: | DPP v Rei-Paku | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2210 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty - Armed robbery and theft – Youthful offender – Affected by Ice at the time of the offending
Sentence: Total Effective Sentence 27 months Youth Justice Centre – s. 6AAA Sentencing Act 1991 declaration - Ancillary order Disposal order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Bhai | Solicitor for Public Prosecutions |
| For the Accused | Ms Murphy | Victoria Legal Aid |
HER HONOUR:
1 Ashley Rei-Paku, you have pleaded guilty to one charge of armed robbery and one charge of theft. Armed robbery has a maximum penalty of 25 years’ imprisonment and theft has a maximum of 10 years’ imprisonment.
2 The matter was opened by the learned prosecutor as follows.
Background
3 You were born on 1 January 1992. You are currently 20 years old and were so at the time of the offending. The victim, Jesse Lemaistre, was aged 18 at the time of the offending. You did not know you. However, you knew the victim’s ex-girlfriend, Tamika Morrison.
Charge 1
4 At about 8:10 pm on 4 March 2012, you attended the victim’s home at 5 Wilson Street, Fawkner with another unknown male.
5 Present at the address were the victim, his sister-in-law, Tenille Harrison, and her three small children.
6 Harrison observed you at the front door. You asked her if he could speak to the victim. The victim went to the front door and spoke to you. You told the victim that you had seen his car for sale on Facebook and asked if it was still for sale. The victim told you that it was. You asked the victim if he could pop the hood and start the car so that you could look at it.
7 The victim went outside to the front of his house and started the car. Harrison was uneasy about the situation and stood at the front door to watch. The other male stood in the driveway.
8 While the victim was in the driver’s seat you were asking questions about the car. You suddenly said to the victim “Do you know your ex Tamika?” The victim said yes. You then told the victim that you were taking the car.
9 The victim attempted to pull the keys out of the ignition but you grabbed the victim in a headlock and the two of you struggled for a short time. You then pulled out a machete and held it to the victim’s throat and said “Give me the keys”.
10 Harrison yelled out to the victim to give you the keys. The victim gave you the keys. You pushed the victim away and told him not to call the police.
11 You reversed out of the driveway and drove away.
Charge 2
12 At approximately 8:20 that night (4 March 2012), you drove the stolen vehicle to the Caltex Service Station, Fawkner. The vehicle did not have any numberplates.
13 You filled the vehicle with petrol to the value of $54.82. You drove away without making any attempt to pay for the petrol.
14 This incident was captured on the service station’s CCTV system.
After the offending
15 At approximately 9:30 that night (4 March 2012), Tamkia Morrison received a telephone call from you. You told her that you had a car. You picked up Morrison from a friend’s address in Coburg. Morrison thought she recognised the car as belonging to the victim, who was her ex-boyfriend. Morrison got into the car with you.
16 You told Morrison that you had gone to the victim’s address and told the victim that if he did not hand over the keys he was going to get hurt.
17 On 14 March 2012 (ten days after it was stolen), the vehicle was located by police at 570 Geelong Road, Brooklyn. The vehicle had been involved in an accident and was extensively damaged. A machete was located on the front passenger’s seat.
Arrest and Interview
18 You were arrested on 5 March 2012 in relation to other matters.
19 On 26 April 2012, while in custody on those matters, you were interviewed by police. You said:
(a) You could not remember the incident (Q/A 35);
(b) You had suffered a number of head injuries which affect your memory (Q/A 62-63);
(c) You had been taking the drug ‘Ice’ at the time of this incident (Q/A 66-67);
(d) The only reason you would have done it was if Tamika Morrison had asked you to (Q/A 90);
(e) You had cars of your own (Q/A 92).
Plea of Guilty
20 You were committed to this Court at the committal mention on 1 October 2012. You pleaded guilty and the matter proceeded by way of a straight hand up brief.
21 It is acknowledged that the plea of guilty was entered at the first reasonable opportunity.
22 The armed robbery which you committed was particularly nasty and was somewhat premeditated which is an aggravating feature. Not only did you threaten to use a weapon, you held a most dangerous weapon to the victim’s throat in the course of committing the offence. You behaved like a thug; your conduct in respect of the armed robbery and the theft of petrol must be denounced. I do not sentence you on the basis that you were responsible for the subsequent car crash. However, I make the observation that if you hadn’t taken the car, the damage to the car would not have happened. It may be that you have a number of cars yourself and had no need for this particular one, but you obviously had no regard for what happened to the car once you took it.
23 Your criminal conduct is deserving of appropriate punishment and must be denounced. Further, strong weight must be attached to general deterrence. But as you are still a relatively young man, in all of the circumstances, I must do what I can to maximise your prospects of rehabilitation.
24 It appears that at the time of the offending you had been taking the drug, ‘Ice’ which may well have heightened your dangerousness. The fact that you could not recall what happened is of little comfort to anyone. If you are to spend your future in the community rather than in gaol, you would do well to stay away from drugs and bad influences.
25 I was told that you pleaded guilty to these matters which proceeded by way of hand-up brief on 1 October 2012, having been charged on 16 July this year. However these charges had not been served on you at this time nor at the time that you were sentenced in respect of other offences by His Honour Judge Carmody on 20 July 2012. On that occasion His Honour sentenced you to a total effective sentence of 30 months Youth Justice Centre (YJC). You had pleaded guilty to one charge of armed robbery which was committed on 29 February this year, as well as 2 charges of burglary, 3 charges of theft one of which was in respect of a motor vehicle, one charge of reckless conduct endangering persons, and there were also a number of summary charges. Your counsel told me that you had made every effort to have all outstanding matters dealt with at that time but as at that time you had not been served with the charges for these matters.
26 I was also told that there are some charges which are yet to resolve, arising from incidents which occurred in December 2011. I shall put these to one side in sentencing you.
27 You are still a young man who has managed to keep out of trouble until quite recently. Ms Murphy told me that your offending is very much tied up with a period of drug abuse in which you engaged, which occurred at a time when you did not care whether you lived or died. You have had a most unfortunate upbringing. Your mother and father have been very poor role models. When you committed the offences for which I now sentence you, you had became involved with a gang or group who call themselves ‘the mongrel mob’ which perhaps gives some idea of their collective level of intelligence. I understand that this group of individuals had some family connection with your mother. According to you, this group required you to perform criminal acts for them - for example, delivering a stolen car to a New South Wales recipient. More fool you, Mr Rei-Paku. By agreeing to do their bidding, here you are facing yet another sentence. However, in respect of the armed robbery before me, you say that it was this person, Tamika, who asked you to take the car-something that you recalled once the fog of being affected by drugs sufficiently cleared.
28 In Judge Carmody’s sentencing remarks, he said the following:
“You gave evidence at your plea on 6th July 2012. You impressed me as having insight into your situation regarding your family, your peer association and your drug use. I assess you as a person worthy of a chance at rehabilitation and weighing that chance with the punishment for your offending”
29 The learned Prosecutor most fairly drew my attention to that passage and indicated that she appeared at the plea before His Honour. She said that she took no issue that you showed insight into your offending at that time.
30 The Crown submitted that, providing you were assessed as suitable, a further period of detention in a YJC was appropriate in your case. The Crown submitted that a sentence of between 24 and 28 months detention was warranted with an order for cumulation of 6 months or less. The Prosecutor, Ms Bhai submitted that the armed robbery which was the subject of His Honour’s sentence where he imposed 24 months for this was less serious than that for which I sentence you, observing that the lower end of the Crown range was 24 months - the suggestion being that I ought impose a higher sentence than this to reflect the seriousness of the armed robbery. In any event, Ms Bhai told me that you had 22 months to go in respect of the previous sentence, which I bear in mind when imposing an order for cumulation. I must also have regard to the principle of totality.
31 At the original hearing I understood Ms Murphy to be submitting that the Crown range was appropriate. At the further plea hearing she said that although a YJC disposition was entirely appropriate, a sentence toward the bottom of the Crown range was called for. However, she also accepted that the armed robbery for which I sentence you has more serious features to it than that for which Judge Carmody imposed sentence.
32 I was told of your background. You were born to parents who both had significant drug problems. Your father left the family when you were only six years old and he did not return to the family home until eight years later. Your father was addicted to heroin and evicted by your mother. Your mother was addicted to amphetamine. You told Dr Cunningham psychologist that was alright at times but not at other times, but that she was always on drugs. Your mother stabbed you when you were 14 years old after you asked her what was for dinner. You subsequently left and went to stay with your father. However, when your father was incarcerated shortly thereafter you returned to your mother. After a time you lived with your older half brother, Shannon, for two years. He played a father figure role. After this, you moved in with your maternal cousins and extended family, who were involved in this gang called the Mongrel Mob. You became involved in drug abuse and committed the offences before me and those before Judge Carmody.
33 You have fairly limited education, having left school in year 9. You have some trouble reading and writing. I hope that you try to improve on these skills while in YJC as this will help you in all sorts of ways in the future. You have worked with the TOLL group which was lined up by your grandparents, then at a company called Rocla. You have been unemployed for the past two years but have a great interest in cars, which I hope you pursue in the future-in a law abiding way.
34 According to your report to Dr Cunningham (report dated 28th June 2012, who saw you on 19th June 2012), you began drinking alcohol when 16. You drank four slabs per week of Bundaberg rum or Jack Daniels mixed drinks. You reported using up to 4 grams of methyl amphetamine per day. You mainly used this when associating with your cousins.
35 As you know the original plea hearing was adjourned off in order for a progress report and an assessment to be obtained from YJC. I note that at the original plea hearing you were supported by your mother and other members of your family. I was told that in the past you’d had a somewhat troubled relationship with your mother but that in more recent times she and other family members were willing to provide you with support. Whilst it is most important to your rehabilitation to have some support both while in YJC and in the community, it has to be the right kind of support. As you are aware, your mother cannot offer this at present. I was told at the further plea that she has often prevailed upon you to obtain drugs for her. This led you to offending whilst on bail. Obviously, this is not the kind of support that you need in order to stay out of trouble. Your mother has told you that she is about to embark upon or has started drug rehabilitation but you are sceptical about this. It may be that other members of your family, like Shannon, are better placed to give you appropriate support, without exposing you to the risk of committing further crimes. You are most protective of your 13 year old sister who is still living with your mother and you wish to maintain a relationship with her. I understand that your mother is your mother and you want to have some contact with her but it would be very wise to do so at a distance until you can be assured that she is drug free. I was told that it is your intention to live apart from your mother, cousins or any criminal associates when you are released, which is a very good idea.
36 I take into account that before being sentenced by His Honour Judge Carmody, you were in adult remand for 118 days. Although my sentence is a separate one to His Honour’s, you have been in custody for a continuing period, part of which was spent in adult gaol-no doubt a salutary experience for you. I factor this in when applying the principle of totality, and assessing your prospects of rehabilitation and assessing the weight that I need give to specific deterrence and the need to protect the community.
37 I have now received a progress report and assessment for YJC and both are most favourable testaments to you. It appears that you are doing very well in YJC, which is most encouraging.
38 I also accept that you have done what you can to facilitate justice in the matters for which I now sentence you, and that your early pleas of guilty are indicative remorse which appears to be supported by the testimony you previously gave before HH Judge Carmody.
39 Your early pleas of guilty have saved the witnesses, especially the victims, the trauma and time of giving evidence and has saved the Court the time and expense of running contested proceedings. You are therefore entitled to a significant discount in the sentence that you would otherwise receive.
40 I take into account the report of Aaron Cunningham psychologist dated 28 June 2012 who concludes that you suffer from a substance abuse disorder. You have had a difficult and dysfunctional upbringing, having been exposed to drug abuse, anti-social behaviour and violence from an early age. You committed the offence before me whilst affected by drugs, and it would appear that there is a definite link between drug abuse and your offending. I put you on notice that if you commit further offences in the future whilst being affected by drugs, then your decision to take drugs may well be treated as an aggravating feature by a Sentencing Judge, which will result in a higher sentence being imposed than would otherwise be the case.
41 Your progress at YJC has been excellent. You are engaging in all services available to you. Your level of engagement with all rehabilitative services is regarded as high and your attitude towards intervention was described by Gene Bell, who assessed you for a further period of YJC, as being ‘high’. In view of your lack of prior convictions and your progress at YJC but also taking into account this offending and that before His Honour Judge Carmody, I rate your prospects of rehabilitation as fairly good. Much depends on your decision to stay off the drugs and to stand up to and/or stay away from those who would tempt or pressure you to commit crimes. I must place some weight on specific deterrence but not strong weight. I must also place some weight on protection of the community.
42 I also take into account that the offences for which I now sentence you were committed at about the same time as those for which His Honour sentenced you, but they are also separate offences with separate victims which will be reflected in the sentence which I impose.
43 Please stand up Mr Rei-Paku.
44 In respect of both of the charges you are convicted, and in respect of charge 1 you are to be detained in YJC for a period of 26 months. In respect of the charge of theft you are to be detained for a period of 2 weeks. The sentence on charge 2 will be served concurrently with the sentence on charge 1, making a Total Effective Sentence of 26 months in respect of charges 1 and 2. The sentence which I impose will commence today and will run concurrently with the sentence that you are now undergoing. Therefore, it effectively adds about 4 months onto the notional period of detention in YJC.
45 If not for your pleas of guilty I would have sentenced you to a term of imprisonment in adult gaol for a period of 2 years with a non-parole period of 12 months’ imprisonment to be served cumulatively in part with the sentence that you are presently undergoing.
46 As you are undergoing sentence and pre-sentence detention was declared by His Honour Judge Carmody with respect to your remand, there is no pre-sentence detention to be declared in respect of the sentence I impose.
47 I make the disposal order sought by the Crown and which is not opposed by you.
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