Director of Public Prosecutions v Robati
[2017] VCC 1515
•18 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-17-00307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEIMANA ROBATI |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2017 | |
DATE OF SENTENCE: | 18 October 2017 | |
CASE MAY BE CITED AS: | DPP v ROBATI | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1515 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence.
Catchwords: Charges of armed robbery, theft and possession of methamphetamine – Use of a sawn-off shot gun – Plea of guilty – Youthful offender – Risk of deportation – Guarded prospects of rehabilitation.
Legislation Cited: Crimes Act 1958, Drugs Poisons and Controlled Substances Act 1981, Migration Act 1958 (Cth), Sentencing Act 1991.
Cases Cited: R v Robati [2015] VCC 802.
Sentence: Total effective sentence of 4 years’ and 4 months’ imprisonment, with a non-parole period of 2 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Saville | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S. Andrianakis | Haines & Polites |
HIS HONOUR:
1 Heimana Robati, you have pleaded guilty to one charge each of theft[1], armed robbery[2] and possession of a drug of dependence, namely methamphetamine[3]. The maximum penalties for those offences respectively are ten years’ imprisonment, 25 years’ imprisonment and one year imprisonment.
[1]Contrary to s 74 of the Crimes Act 1958.
[2]Contrary to s 75A of the Crimes Act 1958.
[3]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
2 You were 22 years old at the time of this offending and are now 23 years old.
Summary of offending
3
I turn to the summary of offending. Your offending is detailed in the summary of prosecution opening for plea, which was tendered as Exhibit 1. Between
19 and 20 March 2016, a 2011 Toyota Hi-Lux was stolen by unknown offenders from a property in Ringwood North. The vehicle was worth approximately $25,000.
4
On 21 March 2016, around 9.30 pm, you were driving a vehicle in Dandenong with three unknown male passengers. You pulled up behind another vehicle,
a Volkswagen Jetta, with a male driver and two passengers. You pulled in so close to this Volkswagen that the driver was unable to move. You demanded that the driver “turn off [his] car”, before reaching in and taking the keys out of the ignition.
5 You then said, “Give me your phone”, to the driver of the Volkswagen. The driver questioned whether you were serious and you then pulled out a sawn-off shotgun, which you had concealed in your jacket and pointed it towards the driver’s head. The driver handed over his mobile phone and some loose change. You have then pointed the firearm at one of the passenger’s head and demanded his mobile phone. The passenger complied and handed over his phone. You also took his wallet from the car door. This conduct forms the basis of Charge 2 on the indictment, being armed robbery.
6 You have then thrown the keys back to the driver of the Volkswagen and told him, “Don’t come back to this neighbourhood again.” You got back into your vehicle and drove off.
7 The Volkswagen driver proceeded to follow your vehicle and one of the passengers called 000. The occupants of the Volkswagen identified the number plate on the vehicle you were driving as belonging to the Toyota Hi-Lux stolen a day or so earlier. This forms the basis of Charge 1 on the indictment, being theft.
8 You noticed that the Volkswagen was following you and you waved the shotgun at the Volkswagen.
9 The circumstances of your arrest on 22 March 2016, that is the following day, were detailed in the opening. I do not need to repeat them here, suffice to say that the stolen vehicle was never recovered.
10 Later on the evening of 22 March 2016, police executed a search warrant at your home address, located and seized three zip-lock bags containing ten grams of methamphetamine. This forms the basis of Charge 3 on the indictment, possession of a drug of dependence.
11 After your arrest, you were interviewed and denied any involvement in the armed robbery, suggesting that you had an alibi. You told police the substance located at your home was “sea salt.” You admitted to driving the Toyota Hi-Lux, but denied knowing it was stolen.
Gravity of offending and your role
12 I turn to an assessment of the gravity of the offending and your role. Assessing the objective gravity of this armed robbery is not easy. On the one hand it has characteristics of an opportunistic street level armed robbery, without any real planning and without the anticipation of significant reward. Yet, it involved
a sawn-off shotgun, which makes the armed robbery significantly more serious, troubling and indeed frightening. The armed robbery was committed in company. There were two victims. You pointed the gun at both of the victims’ heads, instilling in them what must have been a very high level of fear. Further, while there was no specific premeditation in relation to the target in question, the fact is you and your co-offenders were driving around in the car with the shotgun.
13 You also have relevant priors, including custodial terms for armed robberies and you committed this offending in breach of multiple court orders, to which
I shall return.
14 Your counsel made reference to the Judicial College of Victoria’s helpful summaries of armed robbery sentences, separated as they are into high range armed robberies and low range armed robberies. He submitted that this falls at the higher end of that low range list of armed robberies. Counsel for the prosecution agreed with that submission. I generally agree, though there is no bright line between the two categories. This armed robbery is certainly far from the lowest end, by reason of the use of the firearm.
15 In respect of the theft charge, the charge is put upon the basis that your use of the vehicle was inconsistent with the rights of the owner. In respect of the possession charge, the applicable maximum penalty is for offending which is not related to a trafficking purpose. This was conceded by the prosecution in their written submissions.
Criminal history
16 You have a substantial criminal history for someone of your age. You have received a number of sentences of detention and imprisonment, largely for offences of dishonesty, drug and property damage offences, but also for offences of violence.
17 Relevantly, you have been sentenced on two previous occasions for charges of armed robbery. On 22 July 2011 at the Dandenong Magistrates’ Court, you were sentenced to 12 months' detention in a youth justice centre for offending involving an armed robbery. Just over a year later, on 9 August 2012 at the County Court, you were sentenced to 14 months' detention for one count of armed robbery and one count of theft.
18 You had two recent opportunities to undergo treatment and rehabilitation in the community. On 12 June 2015, you were sentenced to 718 days' imprisonment, followed by a 30 month Community Corrections Order, imposed by Judge Punshon at the County Court for two charges of conspiracy to commit aggravated burglary. This Community Corrections Order had conditions for treatment and rehabilitation, as well as work hours.
19 On 23 February 2016, approximately one month before this offending, you were released after serving 70 days’ imprisonment on a 12 month community corrections order for dishonesty and driving offences. This order had both work hours and treatment and rehabilitation conditions.
20 You engaged in this offending which brings you before me while on the two community corrections orders which I have just mentioned.
21 It is an aggravating feature of your current offending that you have offended whilst on two court Community Corrections Orders. This also reflects poorly on your attitude towards the law and upon my assessment of your prospects of rehabilitation.
22
Your criminal history is such that specific deterrence is a consideration which
I must give some weight to in the sentence that I will impose. Your history is also relevant to my assessment of your prospects of rehabilitation.
Personal circumstances, disadvantaged background and context
23 I turn to your personal circumstances and your disadvantaged background and the context to this offending.
24 I have already noted that you are now 23 years old. You were 22 years of age at the time of this offending.
25 You were born in New Zealand. At age seven, you left New Zealand and arrived in Australia in 2001 with your father and brother. You were estranged from your mother and she remained in New Zealand. Your counsel instructed that you were not able or willing to provide instructions about your early life in New Zealand.
26 You have limited education, completing Year 7. You commenced but failed to complete, Year 8. Your father was working long hours at this time and you were frequently unsupervised. Without supervision you stopped going to school.
27 During this period, you started to commit minor dishonesty and graffiti offences. Your counsel identified that there was cycle of offending which involved you offending, police arresting you and bringing you home to your father, where your father would then punish you with some degree of violence, before kicking you out of home. You experienced periods of homelessness, sometimes days or weeks before your father would let you return. You would offend and the cycle would recommence. You were in your early-teens when this started.
28 You had commenced using heroin by age 14 and by the time you were 18 years of age, you were using daily. By age 16, you were using methamphetamine on a daily basis, up to one gram. Your offending revolved around and supported your drug habit, which was significant.
29 You and your father had become estranged by the time you received your first sentence of detention and you lost contact. Your offending had escalated and your father did not know how to handle you.
30 In November 2012, you were released on parole, having served seven months detention for charges of armed robbery and theft. You attempted to make contact with your father and brother upon your release, however you were unable to locate them. In fact, during that period of incarceration, your father and brother had returned to New Zealand. The first you had heard of this was from another family member. You were deeply embarrassed by the situation.
31 After this you lived with an aunt for a while and experienced periods of homelessness. Due to your visa status, you were not entitled to access Centrelink or housing or other support. You do not have a work history, in part because of your custodial history.
32
Since you have been in custody, you have had contact with your father and brother in New Zealand and you speak once every couple of months. You have also made contact with your mother for the first time since you left New Zealand. You also speak on the telephone every couple of months, but do not have
a meaningful relationship.
33 Your counsel also sought to rely on some remarks made by Judge Punshon in sentencing you in 2015. These were sought to be relied on by your counsel as providing some context to this offending.
34 Relevantly, your counsel drew my attention to references made by Judge Punshon to a psychological report of Mr Michael Crewdson. I am going to now quote from the Judge Punshon sentence:
Next, your counsel relied upon the psychological material already referred to. He specifically did not seek to activate the principles in Verdin’s case. However, he noted that there is much that is now known about your psychological makeup and with patience and appropriate help, there is no reason why you cannot successfully rehabilitate. Mr Crewdson was not prepared, given your age, to class you as having an anti-social personality, indeed your developmental history did not reflect evidence of this. Your education was retarded, most likely because learning difficulties were not identified.
Mr Crewdson, who discussed the significance of intellectual testing, in summary concluded that he considered you were in the borderline region of intellectual functioning. You have some strengths which might assist you to plan crimes, but also you have deficits which would likely impede rational decision making and a clear appreciation of the consequences of your actions.[4]
[4]R v Robati [2015] VCC 802 [21].
35 Your counsel also drew my attention to an observation by Mr Crewdson, referred to in Judge Punshon’s sentence, that you lacked parental boundaries and became emotionally dependent on peer contact.[5]
[5]Ibid [24].
36 Your counsel submitted before me that those matters and your disadvantaged background are relevant to explain the current offending and probably go some way to explaining your criminal history as well. The matters about which
Mr Crewdson spoke, including his suspicion that you were in the borderline region of intellectual functioning, would appear to have general ongoing application.Additionally, your disadvantaged background offers some explanation for your criminal behaviour and not doubt has contributed to it.
I take these matters into account.
37 I note, however, that your counsel in the matter before me, like in the matter before Judge Punshon, specifically did not seek to enliven the principles in Verdin’s case.
Likelihood of deportation
38 I turn to the issue of the likelihood of deportation.
39 You are a New Zealand citizen. On 25 August 2016, your visa to remain in Australia was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Your counsel submitted that he believes that this occurred as a result of you being sentenced to two months' imprisonment because of the contravention of the Judge Punshon Community Corrections Order. In any event, it is not because of the current armed robbery offending that your visa has been cancelled. Your counsel, in the end, submitted that while it cannot be said that your deportation is an additional punishing consequence specifically of this armed robbery offending, I should take this consequence indirectly into account under the totality principle, when taking into account the two months' imprisonment imposed by Judge Punshon.
40 I accept that the reality is that you are likely to be deported upon serving your sentence. Your visa has been revoked and you have taken the fatalistic view that it is somewhat pointless trying to have that decision reviewed. You will serve your time in the knowledge that you will be deported upon serving your sentence. Your partner and child will, at least for the short term, be remaining in Australia. This will make your imprisonment more burdensome than it would have been otherwise. I also take this factor into account under the principle of totality, as argued by your counsel. That is, indirectly as an additional punishing consequence.
Plea of guilty
41 I turn to your plea of guilty. Your plea of guilty was not late plea, but neither was it an early plea. You indicated your intention to plead guilty to these charges prior to an initial directions hearing in this Court. You ran a contested committal, however that was complicated by the fact that there were other charges which were part of the committal proceeding that were ultimately discontinued after the committal.
42 You receive credit for the objective utilitarian benefit through the saving of time and resources associated with the running of a contested trial.
43 While it was not pressed with any force at the plea, I accept that your entry of the plea of guilty is also representative of some evidence of remorse and
a willingness to facilitate the course of justice.
Youth
44 As I have already noted, you were 22 years of age at the time of the offending and are now 23. I take into account your youthfulness and the need to allow for your rehabilitation in sentence.
45 That said, while your youth remains an important consideration and requires more weight to be given to encouraging rehabilitation than would be the case for an older offender, the seriousness of this offending and the fact that you have already accumulated a prior criminal history, means that the benefit you receive for your youth is moderated.
Prospects of rehabilitation
46 I turn to your prospects of rehabilitation. Despite your relative youthfulness,
I am already guarded about your prospects of rehabilitation. Custodial sentences and Community Corrections Orders have not deterred you from
re-offending.
47 There are, however, a number of positive factors, aside from your relative youth. There is an indication that this most recent and substantial period of imprisonment has allowed you to deal with your drug problem, which underpins much of your criminal offending. I have received a number of urine screen results relating to samples taken from you whilst in custody. These urine screen results are all negative for the presence of illicit substances. They show that you have been consistently abstinent from drug use since at least April of this year. I am encouraged by this fact. I note that I received one screen at the plea hearing and subsequent to the plea hearing, I have received the further screen test results from your legal representatives.
48 You have also tried to use your time productively while in custody, keeping fit and for the first time, undertaking a number of vocational courses, certificates of which were exhibited on your plea.
49 While your deportation to New Zealand will deprive you of the opportunity to pursue a life in Australia, it does represent a fresh start for you and an opportunity to reconnect with your family in New Zealand. Finally, your partner, Ms Marianna Campbell, remains supportive of you and was in court at your plea. You and your partner have a young daughter together who was born while you have been on remand for this offending. She is now one and a half years old and you have had limited contact with her while you have been in custody. But she clearly does provide a real incentive for you to turn your life around. Your long-term goal is to build a new life for yourself in New Zealand, with your partner and your daughter, to eventually relocate to be with you.
Pre-sentence detention and totality
50 You have been in custody since your arrest on 22 March 2016.
51 Can I just clarify the PSD as of today?
52 MS SAVILLE: It is 507.
53 HIS HONOUR: Not including today?
54 MS SAVILLE: That is correct.
55 HIS HONOUR: All right.
56 You have been in custody since your arrest on 22 March 2016. You have served a total of 507 days, not including today, as pre-sentence detention in relation to this matter. I will declare that in a minute.
57 On 30 June 2016, you were also sentenced to two months' imprisonment on
a contravention of the Community Corrections Order imposed by His Honour Judge Punshon on 12 June 2015. I have already made reference to this two month term of imprisonment. On 18 May 2017, you were sentenced to seven days' imprisonment total for a contravention of the Dandenong Magistrates' Court Community Corrections Order, to which I have also already made reference.
58 When you served these sentences, you were at the time, on remand for the armed robbery which brings you before me. These periods of two months and seven days respectively, cannot be declared as pre-sentence detention in the matter in respect of which I am about to impose sentence. I do, however, take these periods into account in a Renzella or totality way.
Balancing factors
59
Against the factors in your favour, I am, of course, required to impose
a sentence which deters you and others from engaging in this kind of serious offending. The sentence I impose must publicly denounce such criminal behaviour and protect the community.
60 Will you please stand, Mr Robati.
Sentencing
61 On Charge 1, being the theft, I convict and sentence you to nine months’ imprisonment.
62 On Charge 2, being the armed robbery, I convict and sentence you to four years’ imprisonment.
63 On Charge 3, being the drug possession charge, I convict and fine you $200.
64 I direct that four months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2.
65 You are therefore sentenced to a total effective sentence of four years’ and four months' imprisonment.
66 I set a non-parole period of two years and ten months.
67 I declare that you have served 507 days of this sentence, not including today, and direct that this fact be entered into the records of the Court.
68 Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty,
I would have imposed a total effective sentence of six years’ imprisonment, with a non-parole period of four years.
69 You can sit down, Mr Robati.
70 Anything else, counsel?
71 COUNSEL: No, Your Honour.
72 HIS HONOUR: All right. Yes, if Mr Robati could be taken away please.
73 Thank you for your attendance, counsel.
74 COUNSEL: As Your Honour pleases.
75 HIS HONOUR: Yes, adjourn the court please.
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