Director of Public Prosecutions v Rimene-Pohe

[2021] VCC 1586

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01078

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAADI RIMENE-POHE

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JUDGE:	HER HONOURJUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2021
DATE OF SENTENCE:	14 October 2021
CASE MAY BE CITED AS:	DPP v Rimene-Pohe
MEDIUM NEUTRAL CITATION:	[2021] VCC 1586

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Gibson QC	Office of Public Prosecutions
For the Accused	Ms L. Conwell	Stary Norton Halphen

HER HONOUR:

1On Christmas night 2019, a group of young people had gathered at the home of 16 year old Kyle Vermeulen in Mooroolbark.  Sometime after 10:00pm, Nicholas Pinto arrived. He was a young man of about 18.  He was  upset and angry. He told the group that his mother had been bashed, his dogs hit, and someone had let off fireworks which had gone through a fence and hit a car. He asked the group to come to his house. He rang another friend, told him his mother had been pushed down, and asked him too to come to his house.

2None of the group, at Kyle Vermeulen's house nor the person that Nicholas Pinto spoke to on the phone,  had any way of knowing whether what Nicholas Pinto said was true, whether he had told them the whole story, whether he had made up or exaggerated what others had done, or omitted or minimised what he or his mother had done.  And as the materials that were placed before me would indicate, it is highly likely that Nicholas Pinto had not told the whole story, that he had exaggerated what others had done and he had omitted or minimised what he and his mother had done.

3Nonetheless, six young males including you, Braadi Rimene-Pohe, immediately piled into Nicholas Pinto's car and he drove you all back to his house a short distance away.  Three young females who had been at the house, followed in a separate car and the friend that Nicholas Pinto had called arrived in his car at the same time.  At Nicholas Pinto's direction, that man, the driver, sent a message to a Snapchat group, telling them to come immediately to Nicholas Pinto's house. 

4All three cars arrived at Nicholas Pinto's house at about the same time.  As soon as they arrived, everybody got out of the cars and Nicholas Pinto then headed down the street, calling on his companions to follow him, towards what he told them was the house of the guy that hit his mother.  The six young males who he had driven to his house followed him.  The other young man who had driven his own car to the house followed in his car.  The three young women stayed back at the Pinto house.  They were not part of what happened after that.  The CCTV footage reveals some but not all of what happened after that.

5The house that Nicholas Pinto was headed to was occupied by Michael Clark and his wife Sue, one of their children, her partner and their child.  Other family members were present because it was Christmas Day and some others had just left or were just leaving.  Mr Clark and his wife Sue had not been involved in whatever it was that had occurred that had upset Nicholas Pinto and had led him to making the accusations that he had.  It would appear that some of the young adults, children and partners in the Clark house had been involved in something with Nicholas Pinto, but again, none of that was known to you, Braadi Rimene-Pohe, or any others in the group.

6As the group of seven young males on foot and the male in the car came towards his house, Mr Clark came outside, saw them approaching, returned to his house and re-emerged behind his wife and Jessica Rae, his or stepdaughter. This time Mr Clark, who was at the rear of the three coming out of the house, was holding a baseball bat. 

7The youths began yelling at Ms Clark and her daughter.  Mr Clark yelled at them telling them to leave.  One youth, Hudson Martin, threw a bottle at Ms Clark and her daughter.  They had to duck to avoid it, so did Mr Clark.  Mr Clark ran towards Hudson  Martin.  The mob of youths then started to retreat with Ms Clark and her daughter following them. 

8There was some physical altercation between Ms Clark and you, Braadi Rimene-Pohe.  You went to a car parked outside the Clark house, threw something across it towards the house and then punched the windscreen of the car twice, cracking or smashing it.  I have viewed the CCTV footage.  I am satisfied that it does show you transferring something into your hand before you used that hand to smash the windscreen.  That is certainly the way the prosecution puts it and although Ms Conwell told me on your instructions you had nothing in your hand, given that all I had was your instructions transmitted through your counsel, compared to what I saw myself while repeatedly watching the CCTV, I have reached that comfortable level of satisfaction that you did have something in the hand that you used to smash the windscreen of the car.

9Jessica  Rae, who had headed back towards her home, and whose car it was that you had damaged, ran back towards you after you damaged it and threw a bottle at you.  You again started to return back and went back towards Nicholas Pinto's home.  Ms Clark at that stage, it would appear, took the bat from Mr Clark and tried to hit one of the youths.  He ran at her, they collided and fell.  Hudson Martin, the original bottle thrower, picked up the baseball bat and struck Mr Clark to the head with it, so forcefully he fell to the ground and did not move.

10It was then, after Mr Clark had been felled, that you, Braadi Rimene-Pohe, approached Mr Clark as he lay on the ground and kicked him to the ribs four times.  Mr Clark was incapacitated.  He made no attempt to protect himself.  Whilst you were kicking him, another of your group, Kyle Vermeulen, was also stomping on his head.  Mr Clark suffered extensive forced trauma injuries to his head and he died of those injuries three days later.  Kyle Vermeulen and Hudson Martin are awaiting trial in the Supreme Court over their roles in causing the death of Mr Clark.  It is clear for sentencing purposes, that you are not before the court being held criminally responsible for inflicting the injuries that resulted in Mr Clark's death.  The criminal responsibility of those alleged to have caused the head injuries is yet to be determined.

11You, Braadi Rimene-Pohe, have pleaded guilty as a result of your behaviour to one charge of criminal damage, that is smashing the windscreen of the car, one of common law assault, that is kicking Mr Clark after he had fallen to the ground, and affray for your part in the mob behaviour and unlawful violence that occurred in that quiet suburban street on Christmas night.  It was a disgraceful and terrifying episode. It is easily accepted it would have caused a person of reasonable firmness of mind to be terrified.  The triple-0 calls from the many neighbours, who heard and saw the behaviour of the mob, reveal how terrified in fact they were.

12Although, as I have said, you are not criminally responsible for causing the death of Mr Clark, this disgraceful behaviour in which you took part shows how dangerous such mob behaviour is and why affray, mob violence, must be condemned and deterred.  A dispute about, at worst, letting off a cracker in the street, resulted in the death of someone who, on the evidence, was doing no more than trying to disperse the mob that had advanced at his house. A mob, some of whose  members had thrown missiles at the occupants, and one of them, you, had smashed a car. The violence and aggression escalated it would appear simply in retaliation for members of the Clark household trying to push the mob away.  There is simply no excuse for what happened that night, or for your participation in these events.

13Whatever happened between Nicholas Pinto and the occupants of or visitors to the Clark home, it was nothing to do with you.  Even if things had happened as Nicholas Pinto said, and you had way of knowing whether they had or not, you had no right or justification for acceding to his call to advance in a mob on the Clark house.  What business was it of yours to find out what had happened to his mother or to avenge whatever wrong Nicholas Pinto said had been done to her, a dog, a fence or a car?

14If neighbours cannot sort out their differences, speak to each other and raise concerns about conduct which annoys, or risks harm, in a polite, respectful and civilised way, there are proper, lawful remedies available.  If criminal offences may have occurred, again, there are proper, lawful remedies available, not by groups of angry young men fuelled by alcohol who decide to take on a cause they know nothing about, the truth of which they know nothing about and act in the way that happened that night.  It is clear that subject to considerations personal to you, the sentencing needs of just punishment, denunciation and deterrence are important factors in the sentencing mix.

15What then, are the personal considerations which also have to be taken into account and bear on the appropriate sentence to be imposed in addition to these matters? 

16First, and most importantly, you are a young offender.  You were 18 years and four months old at the time, and you are now 20.  You come from a close, law abiding family and you had never before and have never in the two years since, been in contact with the criminal law.  The law is very clear: with young offenders, encouraging rehabilitation will often carry much more weight and should generally carry more weight than it does for older offenders, even when the offences are very serious.  That is especially so where an offender is otherwise of good character and has good prospects for rehabilitation. 

17On the material that was presented to me, you do have good, in fact, I would consider very good prospects for rehabilitation.  This can  properly be described, as you described when you spoke to Corrections for the purposes of the CCO assessment, a terrible decision made by you.  It was a single decision one night in a group fuelled by alcohol, and which does not, I am satisfied, reflect the sort of person you otherwise have been and the values you otherwise have been brought up with.

18You came to Australia from New Zealand as a child with your parents and your siblings.  Your father died unexpectedly shortly after your arrival.  You and your siblings have been brought up since then by your mother.  You and your family are proud of your Maori heritage, and your extended family and Maori culture have featured extensively in your life.  Your schooling was unremarkable in the sense that you were a good enough student and there were no domestic or behavioural difficulties to interfere with your schooling.  When you finished school, you went to work as a concreter. You were working as a concreter at the time of this offending, and have continued to do so.  You work six days a week in what is very hard, physical work. An excellent reference attesting to your commitment, reliability and your physical stamina was provided by your employer.  You are his only employee and he speaks very highly of you.  It is a reflection of that, no doubt that I have just been told, that despite the hours that you work and the reliance that is set out in his reference he provided for the plea that he has indicated his preparedness to ensure that if you are to be released on a community correction order, that he will do all that is necessary to accommodate your being able to comply with unpaid community work. 

19I was also told and I accept on the evidence of the testimonials from your mother and from extended family members, that you take your responsibilities to your family seriously, that you see yourself as responsible for assisting your mother in supporting your family and contributing a significant part of your earnings to that end.  You have no history of mental illness, personality disorder or behavioural problems.  Although you had been drinking on the night, you do not perceive alcohol to be a problem.  I will come back to that.  There is no history of any other substance abuse.  That is nothing apart from a concern about whether alcohol use is a problem to otherwise adversely interfere with your prospects for rehabilitation. 

20I accept that on the evidence before me, you have taken responsibility for your behaviour this night and your role in the offending.  I accept that you have felt the burden of accepting that you took part in conduct that led to the death of a man who was a hardworking, well-loved man whose loss has caused a deep and continuing grief to his broader family.

21I was impressed by the evidence and the testimonials that were presented on your behalf of the family meeting that you had to face within days of this offending after you had told your family what you had done and before the police had come, searched your home, arrested you and questioned you.  I accept the evidence that you exhibited shame and sorrow when you told your family what you had done and that you understood, as did they, that your shame is their shame too.  That is, that you had brought shame on your whole family and that they too were shamed by what you had done because it did not sit with the sort of person you had been brought up to be, the values that your family has and the values that you had had instilled into you.  I accept that although this is not part of court punishment, that you are carrying the burden, that stain of disappointing the expectations they rightly had in  you and to causing shame to all of them.  Your family provides a strong sense of community, collective responsibility for each other's behaviour and you have fallen short of that in a very serious way. 

22I take into account also that you have pleaded guilty to these charges and did so at the earliest opportunity. Not only do your pleas of guilty carry weight for the utilitarian values, saving the time, the cost of trial, and saving - really important in a case like this - additional trauma and distress to the family of Mr Clark. Although they will have to or may have to relive some of these events in the pending Supreme Court trial, you have not done anything to make them have to give an account or to face what may be the distressing indignity being questioned on the reliability of their accounts.  That carries considerable weight in a case such as this that you, by your pleas of guilty and acceptance of responsibility, has spared them the need to relive and recount what happened, in a court hearing.

23I accept also the utilitarian benefit, the cost of trial and the added significance of that in these Covid times when the delays in the court system are so much worse than they previously had been and the toll on families, upon victims of families and on accused people is so much greater as a result.  I also accept that a plea of guilty, when it carries as it does, a risk of imprisonment for offences such as these, also carries additional weight because of the added burden of imprisonment in Covid times. Therefore somebody who accepts the responsibility and does not try and put off their plea until Covid is at bay, also deserves extra weight, the law says, and I accept, to be given to their guilty plea.  I also accept in the circumstances that your guilty plea is evidence of remorse. Although when initially arrested, you chose on advice to exercise your right to make a no comment interview, it would appear that you have since then or since a very early stage after that, accepted and acknowledged your responsibility.  I take that plea of guilty as further evidence of the remorse that you have otherwise shown and therefore give further weight to the guilty plea in determining the appropriate sentence. 

24It has been nearly two years since these events.  The delay is not of your making.  It is caused in part, because the two others who have been charged are facing much more serious charges. They are not yet resolved, and, I accept, generally the more serious charges take priority in determining the way the cases are heard and what pleas to accept.  I accept too that Covid has caused additional delay and again, that is not of your making.  I accept the burden of having this hanging over your head in that time has been another burden or punishment that is appropriate to take into account.

25You are not an Australian citizen, although you came to Australia as a child with your family.  Therefore, there has been from the time that this matter has been unresolved, the risk of deportation hanging over your head. That, too adds to the burden or the weight to be given to delay.  The burden of the risk of deportation is a significant one here.  You are young, your whole family is here, the bulk of your life has been here.  Were you to be deported, you would have to start again in effect with no immediate family, no friends, no connections to the place that you were removed from, not by your choice but by your parents' choice when you were only a child.  Therefore, I accept that view of an uncertain future has added to the burden of delay and is proper to take into account.   

26I have already noted that you have not had any further contact with the criminal law since being charged with these offences nearly two years ago. That vital time of growing up between the ages of 18 and 20 is a time when often the stress of something awful hanging over a person's head leads them to engage in destructive behaviour or criminal behaviour.  You have not done that. You have not been in trouble in the nearly two years since this has occurred.  It fortifies the view that you are otherwise a person of good character and strength. You have shown by your capacity to stay out of trouble for the two years since then that again, your prospects for rehabilitation are very good.  It also shows, in my view, that you have learned already a very heavy, hard and salutary lesson about the consequences, unexpected and terrible consequences of what might otherwise have been thought to be not such bad behaviour.

27For all of these reasons, I accept that despite the seriousness of the offences, the significance of the ultimate consequence and the need to mark denunciation and deterrence, that imprisonment is not the only sentence available which is appropriate to serve the sentencing needs. Of course, it is not open to impose a term of imprisonment if other sentencing options are appropriately open.  Since the Court of Appeal in the case of Boulton[1] confirmed that community correction orders were open even for very serious offences, it has been understood that a CCO can be a significant sentencing option that meets the needs of deterrence, punishment and denunciation as well as encouraging rehabilitation for serious offences. 

[1] Boulton v R [2014] VSCA 342.

28In your case, I have come to the view that a community correction order is the appropriate sentencing outcome.  I am satisfied that it will be in the circumstances, a significant punishment and meets the needs of just punishment.  It is going to be for a considerable period, two and a half years.  So, as well as the nearly two years you have had this hanging over your head, you are having a sentencing order that you are subject to for another two and a half years.  It means nearly four and a half years altogether before you can say your punishment has been done, and that level of expiation has been achieved.  In my view, it serves a significant deterrent effect.  Not only should the consequences of this night serve as a deterrent to other stupid hot-headed, intoxicated young men who might think that they can rampage around like you and your mates did, the consequences and responsibility of knowing, bearing responsibility and the shame that somebody died as a result of this, an innocent person, is and should be a significant deterrent for anyone else who thinks that this is okay behaviour. 

29With you, I am satisfied that there is no further need to give significant weight to specific deterrence.  The evidence has suggested that you have learnt already from this and if you have not, then no additional sentence I suspect will.  But carrying the shame and burden of knowing those consequences is a specific as well as a general deterrent and a punishment.  I do not consider the community correction order that I am about to impose is a light option.  It has with it, a considerable period of unpaid community work.  That is a punishment.  You are giving up your time to do unpaid work for the benefit of others less advantaged than you.  When you might want to have leisure time and you might want to work and earn more money, instead, you will be doing unpaid community work and paying off part of your debt, your burden to society.  The duration too is a punishment, two and a half years and I am also going to impose conditions that you are undergo programs as directed.  They are not only for assessment and of necessary treatment in relation to alcohol, but also behavioural management programs designed to address behaviours that may have contributed to the offending and specifically, anger management.  To address not just anger at somebody directly but to confront your  thinking you can take on somebody else's anger and act as a result of that. And another thing that I am going to do is also make any hours that you spend in those rehabilitation programs count towards your unpaid community work obligation.

30If you breach the order, whether it is by non‑compliance with any of these conditions or by committing further offences, then it is likely that breach proceedings will be taken by Corrections and you will be brought back before this court and most likely before me to be dealt with for the breach.  Depending upon the gravity of the breach, that may well lead to the court having to resentence you for the original offences and that would mean all original sentencing options will be open.  Again, that is a significant punishment with significant hold over you for the next two and a half years.

31As I have already mentioned, I do not consider the circumstances such as to justify not recording a conviction.  This warrants recording a conviction against your name, notwithstanding your otherwise good prospects of rehabilitation. 

32Braadi Rimene-Pohe on the three charges then to which you have pleaded guilty, you are convicted and you are sentenced on all three charges to be placed on a community correction order for a period of two and a half years or 30 months.  The order commences today, 14 October 2021, and ends on 13 April 2024. 

33There are mandatory terms that apply to all community correction orders.  They are these; you must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by s17 of the Sentencing Regulations.  That means, you must not be impaired by alcohol or any other substances when you attend for participating in any part of your community correction order and you must submit to drug or alcohol testing if directed.  You must report to and receive visits from the Secretary or Delegate.  You must report to the community corrections centre at Dandenong.  That is at 46-50 Walker Street in Dandenong, within two clear working days after the commencement of this order.  Today is Thursday, that means you must do it either this afternoon, tomorrow or Monday.  Given these Covid restrictions, I understand that initial reporting will be by telephone and the number of the Dandenong Community Correctional Services Centre is on the order which you will be provided with shortly.  I have no doubt that Ms Conwell will also make sure that you have that number and you understand your initial reporting obligation.

34You must let a community corrections officer know within two clear working days if you change your address or change your job.  You must not leave Victoria without first getting permission to do so from the Secretary or Delegate.  When we are eventually allowed to leave this State, you cannot do so without the permission of the Secretary or the Delegate and you must obey all lawful instructions from and directions of the Secretary or Delegate. 

35They are the mandatory conditions, that apply to all community correction orders. In addition, the following conditions apply to this order; you must perform 300 hours of unpaid community work over the period of 30 months as directed by the regional manager. I order all hours of treatment and rehabilitation satisfactorily undertaken count as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with the unpaid community work condition, the Secretary to the Department of Justice or the Delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act. 

36In addition, you must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager and you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager and specifically courses in anger management.  Do you understand the effect and conditions of this order, Mr Rimene-Pohe?  Do you consent to it being made?

37OFFENDER:  Yes.

38HER HONOUR:  All right, can you just tell me what your understanding is of this order and its effect?

39OFFENDER:  That I have two days to, to call them up and I've got 300 hours to do over two and a half years.

40HER HONOUR:  Yes, and the other programs?

41OFFENDER:  Yeah, the alcohol and the anger management.

42HER HONOUR:  That's right and what happens if you breach either by failing to abide by the conditions or by committing other offences?

43OFFENDER:  I could appear back in court and face charges for the charges that I just done.

44HER HONOUR:  I am satisfied that you understand the effect and conditions of the order and I am satisfied that you consent to it being made.  Given that this is a remote hearing, the record will note that you have indicated your understanding and your consent verbally.  A copy of the order will be provided and you will be asked to put your signature on it at a later stge.  Once this proceeding is finished, I will sign the order which has an endorsement of it of your verbal consent and that will be provided both to Ms Conwell and to you.  Do you understand that?

45OFFENDER:  Yes, I do.

46HER HONOUR: In addition to the community correction order on those three charges, I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you either to a period of youth detention or to a term of imprisonment in an adult gaol and had it have been to a term of imprisonment in an adult gaol, the sentence would have been one of 18 months imprisonment with a nine month non-parole period.  I also order that you pay compensation in the amount of $220 to Jessica Rae in respect of the damage caused to the windscreen of her car.  Are there any further orders that are required to be made, Mr Gibson?

47MR GIBSON:  No, there are not, Your Honour.

48HER HONOUR:  Ms Conwell?

49MS CONWELL:  Nothing further, Your Honour.

50HER HONOUR:  Do the orders that I have pronounced reflect what I said I intended to do?

51MR GIBSON:  They do.

52HER HONOUR:  Can I thank you, Mr Gibson and you, Ms Conwell, for the considerable assistance that each of you provided in the course of this plea?  Can I thank again all of the family members of Mr Clark for their attendance and participation, and can I say, Mr Rimene-Pohe, I hope that you do not come back before me for breach of proceedings.  If I ever see you in a court again, I want it to be because you are appearing as a character witness for somebody who has done something wrong,  for whom you've been able to be a sad and sorry role model for making amends.  Thank you everybody for your assistance, we will now adjourn.

53MR GIBSON:  As Your Honour pleases, thank you. 

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