Director of Public Prosecutions v Renata-Raimona

[2020] VCC 434

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02430

DIRECTOR OF PUBLIC PROSECUTIONS

v

XZAVIER RENATA-RAIMONA

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February, 3 & 8 April 2020
DATE OF SENTENCE:	16 April 2020
CASE MAY BE CITED AS:	DPP v Renata-Raimona
MEDIUM NEUTRAL CITATION:	[2020] VCC 434

REASONS FOR SENTENCE
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Subject:  Criminal Law

Catchwords:            Robbery; Armed robbery; Committing an indictable offence whilst on bail; possession of a prohibited weapon. Young offender

Legislation Cited:     Sentencing Act 1991 (Vic)
Cases Cited:            R v Verdins & Ors 16 VR 269; Brown v The Queen [2020] VSCA 60;

Sentence:9 months detention in Youth Justice Centre & Community Corrections Order (18 months, 150 hours community work, treatment and rehabilitation programs)

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. McMaster	Office of Public Prosecutions
For the Offender	Ms A. Wong	Victoria Legal Aid

HER HONOUR:

1Xzavier Renata-Raimona, you have pleaded guilty on indictment to two charges of armed robbery and two charges of robbery, as well as related summary offences - three of committing an indictable offence whilst on bail and one of possession of a prohibited weapon (knuckle-dusters) without exemption. 

2You were only 19 years of age at the time of your offending. 

3In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed.  Armed robbery carries a maximum of 25 years imprisonment; robbery 15 years imprisonment; committing an indictable offence whilst on bail, three months imprisonment; and possession of a prohibited weapon carries a maximum penalty of two years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences. 

4The circumstances of your offending were set out in a document entitled, “Summary of Prosecution Opening for Plea' dated 11 February 2020.  It is a detailed document and represents an acceptance by you of all of the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence.

5In short compass, on 8 June 2019 you committed charge 1, robbery.  With co-accused, Zac Tardent[1], himself only 14 years old, you approached Tyson Lyons at around 4 pm whilst he was waiting for a bus.  You both asked

[1] A pseudonym

Mr Lyons for money and Tardent asked his shoe size before demanding he take them off, saying “Do you want to get smacked?”  Lyons was alone, vulnerable, scared and removed his Nike Air Max 270s, giving them to Tardent.

6You then told Mr Lyons to empty his pockets, which he did.  You also patted him down before you and Tardent left with Mr Lyons' phone and shoes.  When doing so, you cautioned him not to call police or you would find him. 

7You were on bail at the time of this offence, which forms summary charge 2, commit an indictable offence (robbery) whilst on bail.

8Charges 2 and 3, armed robbery, occurred 12 days later on 20 June 2019 and at the same time.  Victim, Ozan Duru, was 17 years of age and victim, Luke Di Vincenzo, 19 years of age. 

9Mr Duru and Mr Di Vincenzo left Highpoint Shopping Centre at around 8.30 pm and walked towards the tram stop.  You and two unknown co-offenders approached them.  Each of your co-offenders were wearing knuckle-dusters, one of whom demanded that the victims empty their pockets and unlock their phones and to “'Give us your jacket”.  You stated, “Give us your stuff or we'll bash you”.  Duru gave his jacket to you.  Each victim handed over their property.  You and your co-offenders left after one of your co-offenders punched Duru to the face using the knuckle-duster, causing his nose to bleed.  You are not charged with this event and will not be punished for it, but it does paint a picture of the overall circumstances of the offending in which you were involved.

10You were on bail at the time of these two armed robberies, forming the basis for summary charge 4, commit indictable offence whilst on bail. 

11Charge 4, robbery, occurs on 20 August 2019, on which occasion you were again with Tardent and another co-accused, Luca Haritos[2], who was aged 15 years.  Your victim this time, Taylan De Young, was aged 13 and was on his own - making him an easy target for the three of you.  He knew Tardent and Haritos from school. 

[2] A pseudonym

12You followed Mr De Young to Rebel Sport, you put your arm around him and said “Let's walk down here” and removed his headphones.  You asked Mr De Young what was in his bag.  You demanded the speaker which he said that he had and then handed to you.  You gave the headphones and speaker to Tardent. 

13You then asked about Mr De Young's phone.  When he refused to hand it over you clenched your fists and said “Give me your phone or I will drop you”.  Mr De Young handed over his phone.  You then demanded his Apple ID password and threatened to hit him when Mr De Young claimed he had forgotten it.  Mr De Young entered his password into the phone.  He refused to hand his bag over to you on your next demand and you appear to have been persuaded by Tardent to let him keep it.  You then threatened to kill Mr De Young if he told the cops or his brother about what happened, and you and your co-offenders walked off with his phone, headphones and speaker. 

14You were also on bail at the time of this offence, forming the basis for summary charge 10, commit indictable offence whilst on bail, that being robbery.

15Police searched your premises on 3 September 2019 and items relevant to your offending were located.  Knuckle-dusters were found and form the basis for summary charge 11, possess prohibited weapon.  You were arrested at this time and subsequently interviewed by police making some admissions.  You identified yourself on the CCTV of each event but your interview overall denied or minimised responsibility for your offending.

16As a direct consequence of your offending you were remanded into adult custody and have now served some 226 days on remand.  This is your first and only exposure to a custodial setting. 

17I accept the submission made by the Crown that the objective seriousness of your offending is low to medium and that the offences were both unsophisticated and unplanned.  I accept the Crown's submission that the use of knuckle-dusters for the armed robbery offence can be seen to be a weapon at the lower end of seriousness. Indeed, for offences of their type I in fact find them to be at the lower end in terms of their objective gravity.  Your offending is immature and would appear to be a way to alleviate boredom and part of your peer relationships at that time.

18However, your offending is also serious and has occurred in company and on vulnerable and isolated victims over what is about a ten week period.  This observation should not be lost in the sentence to be imposed. 

19Whilst no victim impact statements have been tendered, your offending cannot be without its ramifications upon each of your victims who were each young people like yourself and were otherwise going about their daily lives as they were entitled to do before you and your co-offenders interceded.  They would have been understandably afraid. 

20To your credit, you have acknowledged your responsibility for your offending in your early plea of guilty.  This demonstrates a willingness by you to facilitate the course of justice and, importantly, has saved the need for witnesses to attend and relive the circumstances.  In the context the materials before me, I am satisfied that your plea of guilty also exhibits remorse.  All of these factors will be taken into account in your favour. 

21In terms of any prior criminal history, you have one appearance on
25 July 2017 at the Sunshine Children's Court in relation to charges of criminal damage, robbery, unlicensed driving, careless driving and possess methylamphetamine.  In relation to that matter you were placed on what is called an adjourned undertaking for a period of 12 months.  This order was made without a conviction being recorded.  It would appear that you abided by this undertaking to the court and your criminal history, whilst somewhat relevant, has little role to play in my sentencing process.  It does not represent any pattern of offending and demonstrates an ability to abide by a sentencing order of a court. 

22As I am obliged to do, I also take into account your personal circumstances.  You were born in New Zealand.  Your mother, Ruby, is Maori, and your father, Corey, comes from the Cook Islands.  You are the eldest of four siblings and have a younger sister, Harmony, aged 17, and two younger brothers, Malachi, aged 13, and Luke, aged 12.  So far you are not setting them the best example of being an older sibling.

23As a young child you were exposed to considerable domestic violence between your parents which occurred in the context of your father's abuse of alcohol.  Your family moved to Australia when you were aged approximately 12 to 13 years.  I am told that your father has apparently modified his behaviour since the family arrived in Australia.  You are fortunate to enjoy an extremely close relationship now with each of your parents and each of your four siblings. 

24You were bullied at school and left when aged approximately 14 years and have had employment since - including in construction, warehousing and unloading containers.

25When aged only 18 years you also became a father to a son, Jeremiah.  You became estranged from both him and his mother towards the middle of 2018.  You frankly admit your alcohol use increasing significantly in response as you struggled to cope with your emotional response to the loss of each of these relationships, particularly that with your son.

26In more recent times you have formed a relationship with Ms Tamar Taukamo, who visits you regularly in prison.  You are presently engaged to be married.  This is said to be a supportive relationship and you look forward to a future together.

27You also describe your family as supportive and intend to return to live with them upon your release.  Your mother has provided a reference and I have taken the contents of her letter into account.  She expresses her sorrow at the physical and emotional abuse you were exposed to in your childhood.  She speaks of the remorse you have for your offending and the positive contribution you make to their family way of life.  She describes you as a helpful, thoughtful and humble member of the family who will be forever loved and supported.  Your mother has attended court on each occasion that this matter has been listed. 

28You aim to work in civil construction or warehousing upon your release.  You want to be a hard-working and productive member of the community.  I accept that this is a genuine desire.

29Also properly raised on your behalf is the prospect of your deportation and potential return to New Zealand.  I accept in a general sense that the anxiety caused by simply not knowing whether you are to be returned to New Zealand when all your close and significant relationships are in Australia makes your time in custody more burdensome and certainly more stressful.

30I have had recourse to a report dated 10 February 2020 authored by Mr Jeremy Parker, psychologist.  His report confirms that prior to being remanded you were diagnosed with depression and in fact sought treatment through Headspace in Sunshine.  You attended counselling on four occasions but have not been able to access any further services since being remanded.  This information at least demonstrates that you, firstly, identified the need for assistance and, secondly, sought that assistance even if it did not get the full opportunity to do so. 

31Mr Parker finds the trauma in your childhood through the violence between your parents is likely to have influenced your longer-term psychological functioning.  He opines that it is likely that you experience a persistent depressive disorder.  You will require assistance to improve your functioning.  There does not seem to be any impediment to you responding to such assistance.  I note that your counsel does not call into your aid the principles contained in R v Verdins & Ors (2007) 16 VR 269.

32The impact of the COVID-19 pandemic has also been raised on your behalf.  I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing.  In Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated:

“In the absence of any adequate material concerning the impact of the virus upon the correction system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court (and others) should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case.”[3]

[3] At [48]

33In your case I accept that there are no longer visits with family or access to programs.  Of course access to treatment is important for a young person.  With your close family and as someone who had the good fortune to experience regular visits, I take the new constraints of your environment into account in a general sense. 

34I also accept that you remain genuinely concerned that upon any release from the custodial environment you could be transported to immigration detention, limiting your access to and the positive impact that your supportive family otherwise offers, and with no real idea when deportation would occur given the current prohibition on international travel.

35The armed robberies committed by you were in company and therefore become what is described as a Category 2 offence under the Sentencing Act. Being so described, s.5(2H) of the Sentencing Act requires the imposition of a custodial order for this offence unless circumstances set out in paragraphs (a) through to (e) of that subsection exist alone or in combination.  They do not in your case; nor is it contended on your behalf that they do so. 

36Prior to the change in legislation which dictates to some degree the course I must take, it is my view that the charges on the indictment, together with the summary matters, would have attracted the imposition of a community corrections order without the need to impose any form of gaol or detention.  Be that as it may, I am bound by the provisions. 

37In written submissions filed by the Crown dated 14 February 2020 the submission, as I read it, was that the imposition of a period of imprisonment combined with a community corrections order was available with appropriate moderation for your youth.  I am now told that this submission was never intended and was there in error.  The same written submissions, and indeed oral submissions, were that due to your youth you would be eligible for your sentence to be carried out in a youth detention facility.  Indeed, on the day of your original plea hearing (14 February 2020) both parties submitted that I should have you assessed as to your suitability for a youth justice centre order. 

38The purpose of such orders are to punish a young offender whilst also promoting rehabilitation and separating them from experienced adult offenders who might increase their criminal knowledge and possibility of re-offending.  Based on both of those submissions and my own assessment of the gravity of the offending, and taking into account your obvious youth, I did have you assessed as to your suitability for a youth justice centre order and the matter returned before me on 8 April 2020.

39Section 32(1) of the Sentencing Act requires that if a sentence involving confinement of a young offender is justified, a court may make a youth justice centre order if it has received a pre-sentence report and either believes that there are reasonable grounds for the rehabilitation of a young offender or it believes that young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.

40A report authored by Mr Gene Bell, senior court advice officer for Youth Justice, dated 30 March 2020 has been received.  You have participated in that assessment and, to your credit, expressed concern that you may not successfully regulate your emotions within the Youth Justice environment if faced with immature behaviours and the attitudes of young men in detention.  You also acknowledge the difficulty you had in coping with your emotions at the time of your offending in the context of your relationship breakdown and loss of contact with your son, which led you to experience high levels of frustration, anger and a resort to the use of alcohol on a daily basis.

41Mr Bell observed that you were remorseful and empathetic to your victims and to the impact of your offending upon them and on other members of the community.  You acknowledged that you did not care about yourself or others at the time of your offending but since being on remand you had time to consider your lifestyle prior to your arrest and desire to make positive changes upon your release.  Your frankness overall with the assessment process is to your credit.  Your insight is reflective of a burgeoning maturity and augurs well for your rehabilitation. 

42In Mr Bell's assessment you did not present as immature and he was guided somewhat by your then belief that you would struggle to maintain your frustrations and emotional responses within the youth custodial environment.  He formed the view that you presented with a reasonable prospect for rehabilitation in your capacity to thoughtfully consider your position and acknowledge your limitations, in what he described as a mature, reflective and respectful manner.  On balance he assessed you as unsuitable for a youth justice centre order as he believed that environment would frustrate you and, in that sense, would not enhance your overall prospects for rehabilitation. 

43Whilst the recommendations made in this report must be given weight in the overall sentencing synthesis, they are not controlling, and the court is not required to follow them, as each case depends on its own facts.

44Up until today , in submissions before me it was the joint position of the parties  that a youth justice centre order would adequately reflect all the relevant sentencing considerations.  Based on the assessment report the Crown's position has now changed to the submission that I need to impose an adult custodial sentence.  Your instructions to your counsel were that you wished to pursue a sentence that would see you detained as opposed to incarcerated. 

45In determining whether to make a youth justice centre order, a court must also consider the nature of the offence and the age, character and past history of the offender. In your case the offending is at the lower end in terms of its objective gravity, your past history is limited and your character, with relevant supports, is certainly redeemable. In terms of the requirements contained in s.32, the assessment report, and all other matters put before me, I am satisfied in accordance with s.32(1)(a) that there are reasonable prospects for your rehabilitation.

46At further plea and sentence on 8 April 2020, further submissions were made about combining a youth justice centre order with a community corrections order.  I accept that this cannot be done in relation to a single charge or the imposition of an aggregate sentence in relation to all the offending, but there is no impediment if the charges are dealt with separately.

47The matter was further adjourned so that an assessment for a community corrections order could be undertaken.  I have received the assessment outcome report dated 14 April 2020.  You are assessed as suitable for a community corrections order.

48In the report, authored by Mr Paul Sguerzi, you appear to be developing some level of insight into your offending behaviour and you acknowledge your need to treat your use of alcohol and to have anger management.  Your approach in this assessment is consistent with what I have heard overall.  You appear to understand the seriousness of your situation and expressed to him a desire to move away from negative peers and to lead what is described as a “normal life”. 

49I make the ancillary orders as sought for disposal of the knuckle-dusters.

50In terms of the basic purposes for which a court may impose a sentence, they include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.  I do express my denunciation of your behaviour.

51I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty, and written and oral submissions of each of the parties.

52Section 32A of the Sentencing Act allows for the imposition of an aggregate sentence for a youth justice centre order.  In your case I propose to impose an aggregate sentence on charges 2 and 3, as I am satisfied that the offences are founded on the same facts, or form, or are part of a series of offences of the same or similar character.  Indeed they occurred at the same time.  In so doing, I also bear in mind the principles of both totality and proportionality, which also have application to all charges on the indictment and the summary offences transferred. 

53I intend to take the same approach in relation to the remaining charges on the indictment and the summary offences with the view that you be transitioned into the community with adequate supports and supervision, which also affords the community greater protection, firstly, through treatment and, secondly, with the ability to respond to any non-compliance.

54Courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.  Your ability to access appropriate services has a role to play.  A community corrections order can be punitive, achieve deterrence and may be suitable even in cases of relatively serious offences which might have otherwise attracted, in your case, a medium term of detention.

55It is not lost on me that the sentencing principles in relation to young offenders apply.  I am not satisfied there is any reason for such principles to be displaced.  In terms of those principles, I am satisfied that focusing on your rehabilitation takes some precedence over the weight that must still attach to general deterrence and denunciation in an effort to avoid further offending.

56I am satisfied the time you have served in the adult system is capable of acting as both a sanction for your wrongdoing and a deterrent from future offending.  There is clear public benefit in supporting a change of course for a young offender which can only be in the community's interests overall.  I accept that you are highly motivated to make a positive change and are well supported by family to do so.  Such resolve should be supported, and can be, through rehabilitative orders. 

57In terms of the armed robbery charges, you are convicted and to be detained in a youth justice centre for a period of 9 months.

58I reckon 226 days as having been served in accordance with this sentence, which is to commence today. 

59In relation to the remaining charges on the indictment and the summary matters, you are convicted and sentenced to 18 months, to be served by way of community corrections order which will commence upon your release from youth detention.  During this order you are to undertake 150 hours of community work, submit for supervision by the Office of Corrections, and to undergo treatment and rehabilitation in relation to your use of alcohol, and to undertake offence-specific programs, particularly in relation to the management of your anger.  This order is made with conviction.

60I have reduced the community work component of the order in reflection of the time you have already undertaken in adult custody and of the community work ordered, together with the 18 month duration, which represents what I describe as significant punishment.  Treatment components are designed to further your rehabilitation and, accordingly, 50 hours of treatment will be offset against your community work. 

61In addition to the conditions I have imposed there are standard conditions.  The first and foremost of those is that you must not commit any other offences during the 18 month period which could be punished by imprisonment.  You must report within two working days of your release to the nearest community corrections office.  You are required to advise your supervising corrections office of any change of address of where you are living or working, and you must do so within two clear working days.  It is a term of all corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections officer. 

62In my view this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available.

63This order can be breached if you do not comply with it in terms of the conditions or re-offend whilst it is in place.  If you do so, you will appear before me for breach of the order and I may have to resentence you on the original charges for which it was imposed, as well as sentence you for contravening the order.  I can only place you on such an order if you are prepared to sign documents to that effect.  Are you prepared to do so?

64OFFENDER:  Yes.

65HER HONOUR:  I do not actually know when they will physically come through to you.  They will at some stage. 

66Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges.  If not for your pleas of guilty, I would have sentenced you to 20 months in a youth training centre.

67Anything arising?

68MS WONG:  No, Your Honour.

69HER HONOUR:  Mr Renata-Raimona, we will only meet again if you breach the order.  I am not expecting to see you.

70OFFENDER:  No, you will not.

71HER HONOUR:  Thank you to the parties for their continued assistance.  Any idea what the closest community corrections office is likely to be?

72MS WONG:  The report says Werribee.

73HER HONOUR:  Does that sound right?

74MS WONG:  Yes.

75HER HONOUR:  Thank you.

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