Director of Public Prosecutions v Siaoloa
[2021] VCC 1988
•1 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00108
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN CAREY SIAOLOA |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2021 | |
DATE OF SENTENCE: | 1 December 2021 | |
CASE MAY BE CITED AS: | DPP v Siaoloa | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1988 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Plea - Sentence
Catchwords: Armed Robbery – Commit indictable offence whilst on bail – early plea
of guilty - Accused acted in Company - category 2 offence - consideration
of S.5(2H) of Sentencing Act – drug and alcohol abuse – moderate
anxiety - minimal range of depressive symptoms – remorse – delay –
low risk of reoffending - good prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: Akoka v The Queen [2017] VSCA 214; Worboyes v R [2021] VSCA 169.
Sentence: Total effective sentence of 7 months imprisonment – 12 months licence
disqualification – cancellation of all driver licences.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms M. Schwartz | |
| For the Accused | Ms C. Dwyer | Ms D. Markotich |
HIS HONOUR:
1 Justin Carey Siaoloa, you pleaded guilty to one charge of armed robbery and one charge of having committed an indictable offence whilst on bail, being a related summary offence.
2 The circumstances are outlined in the prosecution document which was tendered upon your plea. I will summarise the events based on that agreed statement of facts.
3 At the time of the offending you were 26 years old, you have previously lived in proximity to and developed a friendship with Tyla Oxborough and her brother Brandon in Sydenham.
4 At the time of the offending Brandon Oxborough was 22 and he was wheelchair-bound. Tyla Oxborough was 24 years old and at the time of the offending you were living in Williams Landing with her and Tyla's mother and her brother Brandon. Nineteen-year-old Seth Hoober who knew the Oxborough lived in Maryborough.
5 On 22 November 2019, you were with the other three named together at the Williams Landing address. You devised a plan to lure a person to that address by the use of a Facebook profile of Tyla Oxborough on the pretext of a sexual encounter at which point the male would be robbed.
6 That morning Tyla Oxborough added the victim as a friend on Facebook and began a conversation. The exchange which included audio messages, turned to sexually suggestive and ultimately the victim Steven Atkins who was unknown to all of you was invited to the Williams Landing address. He was instructed to park in the rear laneway to the premises, which he did at about 20 past 10 in the morning.
7 Having arrived Atkins noted the garage door was rolled up and he entered the garage area where he was greeted by Tyla Oxborough who embraced him and Atkins kissed her on the cheek. He noticed she was not wearing any clothes under her coat.
8 The two of them sat down on a couch in the garage. At this time, you, Hoober and Brandon Oxborough went to the victim's vehicle and looked inside. You then closed the roller door to the laneway and entered from the house side by way of another roller door, which you opened completely. You all entered and surrounded Atkins.
9 Brandon was in his wheelchair and was talking about his sister not being a slut and what he would do to the next guy she brought over. When Atkins got up to leave, Brandon Oxborough, 'You're not going anywhere. Maybe I'll cap you with my gun.' And asked Atkins how much money he had on him.
10 Brandon Oxborough told Atkins he would keep his car unless he transferred a thousand dollars to him. Atkins logged into his banking application and showed that he did not have the funds to meet those demands. He was told to get a friend to transfer the money and Atkins attempted to call his mother but was prevented from doing so.
11 At one point, one of you produced an extendable baton and gestured in a threatening manner towards the victim, as another said to the victim, that he would be 'fucked' if he didn't give them the money.
12 A demand was made for his phone and smartwatch which he handed over. Whilst emptying his pockets, Atkins dropped his car key onto the floor. You picked up the key which included keys to Atkins's Ford Utility and you went to the car. You got in and drove away.
13 The Ute contained various tools and a wallet which contained private cards, a laptop computer, an Apple iPad Mini 3, and four large storage containers which had shoes and clothes in them.
14 Inside your co-accused continued to demand money from Atkins. He left the premises followed by Brandon Oxborough, who at that time was speaking to you by phone. The victim provided the passcode to the Apple iMini inside the car you were driving and which you had been promised.
15 The victim was instructed to wait on a particular corner for the vehicle to be returned to him, but it was not. On the following day you were a passenger in a stolen vehicle which the police tried to intercept. When the vehicle was later found abandoned police found you hiding nearby and they found the victim's stolen iPad and the victim's personal ID documents at the scene.
16 You admitted that you knew Brandon and Tyla. When you were formally interviewed you told police that the drug ice was the issue that led you to recent trouble. Said, it was all Brandon's idea and it was Brandon who had chatted with Atkins on Facebook by way of his sister's page. You said, Hoober had the baton and that having decamped with the victim's car, you had parked it down the way from the Oxborough home with the keys inside. You admitted that you had agreed with Brandon Oxborough that you would get to keep the iPad.
17 The next day, 4 November, the premises were searched, Hoober and Brandon were arrested, the extendable baton was found in the living room. Atkins's mobile was found in Brandon's bedroom. Messages from Tyla Oxborough's Facebook page were located on the Apple Mac computer as well as audio files. Hoober's fingerprints were later ascertained to have been on the baton.
18 Two days later again investigators returned to the premises and arrested Tyla. The Ute was later recovered and the rear canopy and all of the victim's property had been removed from it.
19 No formal victim impact statement was received upon your plea, however, I can reasonably infer that the victim would have been fearful and traumatised by these circumstances. The offending took place with a number of people, arrayed together against him in a closed environment, by use of threats and intimidation with a use of a weapon. He was restrained, preventing from making calls. His car and personal items were stolen.
20 While I cannot conclude anything about the specific impact, or long-term impact upon Mr Atkins, I can note that such offending causes trauma, which is often long-lasting and which affects many aspects of victim's lives from their social and home life to their work and lifestyle, mental health, hypervigilance, lack of trust and confidence in everyday dealings with others. That is why armed robbery carries a maximum term of imprisonment of 25 years.
21 By this maximum the legislators have indicated the gravity of such conduct, and it is reflective of the consternation, fear and anxiety which the community and victims experience. This is a conduct which must be deterred, both generally for those who are minded to behave in this way and you specifically in the future.
22 The court must adequately denounce such conduct in unequivocal terms and protect the community from such criminal disregard for the victim's rights and everyday entitlement to live free of violence, threat, force and dishonesty. This is so, irrespective of the fact that your criminality on one view was pathetically amateurish, not well thought out, bound to be fail and essentially foolish.
23 In determining the objectives seriousness of the offences, I consider that these relevant aspects render this a serious example of the offence. The offending involved some planning and organisation and understanding between all of the offenders. By the time you and the others entered the garage you had joined the enterprise. The offence was committed in company with the victim in your control in a closed environment. He received threats and a weapon was used to menace and intimidate him.
24 The value of the items stolen was relatively high, even though the vehicle taken was ultimately recovered. You were on bail at the time of its commission, a matter which I will deal with separately in order to avoid double punishment by way of aggravation of the main offence.
25 Your plea has a utilitarian value, having avoided a criminal trial. Such value is enhanced as having been made at the time of pandemic when the delay consequent upon that pandemic have severely disrupted the ability of the criminal justice system to deliver its outcomes.
26 Your plea and acceptance of responsibility enables finality to be reached at this difficult time. The plea is also made at a time when it exposes you to incarceration, which is much more burdensome by the pandemic, and therefore it must carry a greater than usual mitigatory value as explained in Worboyes, by the Court of Appeal.
27 The current pandemic renders more burdens from any period of reclusion, but the restrictions on prisoners by way of lockdowns, quarantine periods, the suspension or decrease in the delivery of services, programs, work opportunities, vocational and psychological programs and has severely impacted visits and contacts and generally limit to an even greater extent the usual experience of incarceration. And I take these considerations into account.
28 Before moving to your personal circumstances, I note that armed robbery is a category 2 offence under s75A of the Crimes Act, as the offence was committed in company.
29 In relation to the provisions of the Sentencing Act s3(1) of the definition part (da)(iii) which defines armed robbery by the offender in company with one or more other persons as a category 2 offence. The brings into relevance s5(2H) of the Sentencing Act. The court must impose a sentence of imprisonment excluding a community corrections order. Unless one of the circumstances outlined in sub-paragraphs (a) to (e) are met.
30 It was not argued in your case that such circumstances were enlivened and none were sought to be raised in order to displace the requirements of sentencing under category 2 regime outlined.
31 I accept that your plea is accompanied by remorse. Although your record of interview with police was essentially a no comment interview, a committal was run in which the victim was cross-examined, mainly by other co-accused but also by your counsel to clarify the role you had played and going to issues of reliability rather than credibility.
32 A sentence indication was sought in late March, after the January 2021 committal, and a plea was indicated thereafter. The plea therefore was not offered at the earliest time, but not at the eleventh hour either, before a trial.
33 As I have said it carries some important utilitarian value, as it was fairly accepted by the prosecution. As to remorse these references to the record of interview and the committal of themselves, may not provide the fullest picture, with which to judge remorse and I rely on the expressions of remorse contained in much of the tendered material on your behalf, which attests to this sentiment as having fully formed thereafter as part of your rehabilitative efforts. I accept that you are remorseful.
34 I take your personal circumstances and background into account. You are 29 years old, you were born in Wellington, New Zealand. When aged six, you joined your parents and older sister who had relocated to Melbourne some time before. You have lived here since then. Your parents had moved to Melbourne some time before your arrival and you had been raised by your maternal grandparents before then.
35 Your parents were working long hours, so upon settling in Melbourne, you were raised by paternal grandparents for some two months. While being looked after in this period, you were subjected to some harsh physical discipline. This caused a rupture between them and your parents, as a result of which you had little further contact with them, as indeed your parents did as well.
36 Your parents have never separated. Your mother operates a café and operates a gym. Your father is the owner and project manager of a construction company. You are in good relationship with both of your parents. Your mother in particular, is close to you and she gave evidence during the plea. Your father was also a strict disciplinarian and acknowledges now that he was heavy-handed with you when you were young.
37 You have an older sister who is married and works in the family construction business. You also have a younger brother. Your secondary schooling proceeded to Year 11, without much difficulty, except the discipline inflicted upon you. However, with the view to providing further discipline, you were sent back to Wellington at age 17 to your maternal grandparents.
38 You were there for one year, during which you passed Year 12. Whatever, the intent in relation to discipline, in that year you began to use cannabis on a daily basis. You returned to Melbourne aged 18 and went to work in the family business, however you went from running a crew of two or three men for some time, for some five or six years, but your drug use increased to the point where you had not been working for some, eight to 12 months by the time of this offence.
39 You are addicted to GHB and methamphetamines. During this period you gambled. Your drug use was exacerbated by drinking alcohol to access. You start at age 16 and it became a problem from 18 onwards. In your 20s you were drinking a slab of beer with two others, every evening after work and that you would drink at home after that.
40 The drinking stopped when the woman who you were in a relationship with, Emily Tran, ended the relationship of some six years, because she became frustrated by your drug and alcohol abuse.
41 This did not stop your dependency on ice, which was current at the time of the armed robbery. By that time you were using eight points per day and GHB. You weighed 60-70 kilograms and had not undertaken any rehabilitative programs.
42 You have some prior convictions, it is not an extensive history but reflects your situation in that period. In August of 2016, you were placed on an adjourned undertaking without conviction, for possession of ecstasy, possession of a prohibited weapon without exemption, a failure to answer bail. In November 2016 you were found for failing to stop a vehicle on police direction.
43 In the course of the plea, I was properly told of a matter which was dealt with subsequently to the offending, but which related to offences committed before this offending. These were matters of driving while suspended, theft and two assaults with a weapon, the telephone and a table leg. Criminal damage and possess of prescription drug of October, December, 2018 which were dealt with upon a plea on 15 June 2020, by way of an adjourned undertaking for one year, on condition to complete a men's behaviour change program, from June 2020 to September 2020. And to engage with Narcotics Anonymous. You completed that program after 12 sessions in September 2021, which was before being bailed for the armed robbery in November.
44 From January 2020, having been on remand for 88 days, you entered an alcohol and drug rehabilitation program with a clear focus. A residential program from which you were discharged on 21 April 2020.
45 Thereafter you also completed a safe driving program. I note that the assaults I have just mentioned, were acts of domestic violence committed in 2018 on Emily Tran, who wrote a letter of your behalf to which I will refer in a moment.
46
Refocus Residential Program provided a letter by way of Senior Councillor Paul McDonnell who wrote on the 20 April 2020 that you were admitted on
29 January 2020, and you completed the treatment on 21 April 2020. During that program you participated in a structured living program, daily therapy, weekly counselling, educational sessions and six step meetings per week.
47 You were compliant and underwent twice-weekly urine-drug screening with negative test results. This was a residential program which was full-time. It was one for which your parents paid about $30,000. You were obliged to remain and fulfilled that obligation and had no phone use or social media although you could contact your family.
48 Although the letter from Mr McDonnell does not specifically refer to restrictions on the liberty of those undertaking the treatment offered by that facility, viva voce evidence was given by Barbara Kustra the Director of Refocus. She told the court you still reported to police on bail, had a curfew and you were only to leave to attend AA or NA meetings. You received one-hour visits on the weekend. There were none during the pandemic lockdown, that is after the first couple of weeks.
49 I am prepared to accept that such residency should be accorded appropriate credit for that period. Although the program is voluntary and that compulsion is not an element of the program, I do note that your bail was granted on the very day you were admitted to refocus, with a residential condition and had a curfew condition. It was varied after your completion, so I infer from that, that your bail was certainly conditioned upon your attendance and that you did not breach that condition. This is an aspect together with the obligation arising out of the cost borne by your family which would have amounted and did amount to a constraint to remain in residence which you abided by, and as explained in Akoka, I take into account as relevant to the instinctive synthesis and apportioned some credit to the reality of your residency there, which will ameliorate your sentence. Urine drug screen certificates were also tendered to the court, spanning the period 30 January 2020 to 13 November 2020, all which were negative.
50 As I have indicated the Director of Refocus, Ms Barbara Kustra gave evidence that you benefited from this program, responded well and outlined that relapse, while always possible, is greatly decreased by the course, and usually triggered by negative mood states, access to other drug uses in isolation. I take this evidence into account.
51 Your mother also gave impressive evidence. She outlined your family history and background and explained the various transitions to different households. She outlined the physical abuse which is present. She said that upon your return from New Zealand, you fell in with a bad crowd and again you were sent back to New Zealand for a period. She said you were uncommunicative with the family. She now helps to run the family civil construction business, as well as run a gym to help Polynesian kids and you have helped out there from time to time. She has noticed the changes in you since the time of the offences, when you were violent to your partner and intervention orders were taken out.
52 She said your period in custody had been harsh, but had been beneficial, and lately you have opened up the family work, the gym, you have reconnected with church and are remorseful for your actions. She gave evidence that going back to gaol would be hard, but that there is an acceptance that you will need to pay some penalty for the offending.
53 Jeffrey Cummins an experienced Consulting Clinical and Forensic Psychologist prepared a report for the court, which was exhibited dated 23 September 2021. Mr Cummins noted that you acknowledged that methamphetamine use lead to the offending as well as your residential day program, current employment and volunteering at the gym.
54 He initially assessed you in April and May 2021, and subsequently you attended his rooms in June, August and September of this year. He noted your history and background and noted that you told him that the men's behaviour change program, it taught you constructive anger strategies.
55 As to the offending you told Mr Cummins you were embarrassed and ashamed. You were avoiding contact with your parents, you would not talk and would not listen. You have stopped contact with drug-using acquaintances, as a result of the rehabilitation program. He assessed the risk of further violent offences as low. He found your current relationship, with your parents and work, protective factors as well as the cessation of alcohol and drug use.
56 He also interviewed your mother who confirmed what she told the court on oath. The self-reporting questionnaires revealed moderate anxiety, the upper end of the minimal range of depressive symptoms, clinically significant evaluation of scales, measuring trauma. Defensive avoidance, disassociate of thinking and depression.
57 Personality testing revealed an emotionally inhibited and self-critical personality, behavioural dysfunction, impulsive excitability. Alienation from others and socially awkward.
58 You were provisionally assessed with anxiety-related disorders, including post-traumatic stress disorder, agoraphobia and depression and an excessive compulsive disorder. You did not present with an anti-social personality disorder. At the time of the offending, you were in the grip of a severe stimulant use disorder and dependence. You had suffered complex post-traumatic disorder. The trauma and stress are related disorder, a trauma and stressor related disorder reflecting multiple post-traumatic stress disorders.
59
You are emotionally immature, requiring further therapeutic intervention.
Mr Cummins opines at the time of the offending, my perception and judgment and reasoning were impaired.
60 You are now committed to remaining drug-free and in his view your prospects of achieving long-term rehabilitation are favourable. I take this report into account.
61 I take into account the references which were tendered on your behalf including one written by yourself. This letter dated November 2021 reflects on the period of 88 days at Fulham as an eye-opener and cause for reflection. I accept the letter reflects a significant advance to rehabilitation which you have made. In my view your prospects of rehabilitation are good. Your mother wrote a letter on your behalf in confirmation of the matters you gave evidence about.
62 Emily Tran with whom you had a relationship over many years, also wrote of your regret, how drugs brought out your aggression and how your recent rehabilitative efforts have impacted on your life in a positive fashion.
63 I received certificates in relation to the safe driving program and the men's behaviour change program, completed between June and September 2020. I have read the references from Edward Kruckel, Operation Manager for United Civil Works, who writes of your remorse and regret, your growing realisation as to your past lifestyle and your value as an asset to the business.
64 Romney Talataina is a personal trainer, employed by UCE Bob's fitness who writes of your mentoring boys at the gym and of the changes you have begun to make.
65 Phillip Iosua, a site foreman, writes similarly details reference in which he praises your transformation.
66 Timothy Tofilau, Supervisor at Fulton Hogan, for who you worked as a young man between 2011 and 13, writes of your reintegration into employment and the community in positive terms.
67 I also received a series of drug screens from January to November which I have mentioned. There is the aspect that you are not an Australian citizen, however you have long lived here and most of your family and work and business is here.
68 The question over deportation is a relevant one, and may weigh heavily on you, but I do not intend to impose a sentence greater than 12 months, and your ongoing rehabilitation and pro-social and family engagement are matters which I found persuasive to impose a much more lenient sentence in your case, which hopefully will avoid that outcome.
69 The court accepts you have made efforts to reform, that you're remorseful and that your prospects of rehabilitation are good. The sentence must address not only principles of just punishment and deterrence but rehabilitation as well. The court must consider that it's sentence for a serious criminal offence such as armed robbery, must be such as to deter those who are maybe like-minded to commit similar offending and general deterrence must therefore play a significant part in the sentence.
70 While it must denounce this type of conduct to protect the community, I recognise the sentence of the court should not delay or impede further rehabilitative efforts which have been positive so far. In my view there is still a need to deter you specifically to a reduced extent because of your efforts and because the long-term interest of the community and its protection is best served by the rehabilitation of offenders.
71
I have reviewed the comparable cases which were referred to and in my view there are specific distinguishing aspects in each of them. I am of the view that the offence is serious enough to warrant imprisonment but just as in
Brandon Oxborough's case a significant level of parsimony and leniency should be extended to you, because of your recent efforts, which makes for a sentence which in my view is merciful.
72 Consideration of parity are also relevant, although the relevant considerations are significantly different, they have a similar impact on your ultimate outcome.
73 Please stand Mr Siaoloa.
74 On armed robbery you are convicted and sentenced to be imprisoned for six months. On the summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to two months' imprisonment. I order that one month on the summary offence, be served cumulatively on the sentence and Charge 1 on the indictment. That makes a total effective sentence of seven months.
75 I declare you have served 88 days, by way of pre-sentence detention and will have that number recorded in the records of the court.
76 Under s89(4) of the Sentencing Act I cancel all your licences to drive. I disqualify you from driving for a period of 12 months. Mr Siaoloa your pre-sentence detention means that I think you have served about three months on a sentence of seven months, being a total effective sentence you have about four to serve.
77 HIS HONOUR: Ms Schwartz are there any other ancillary orders that I need to sign or be aware of?
78 MS SCHWARTZ: No, Your Honour there are no orders.
79 HIS HONOUR: Yes, thank you.
80 MS SCHWARTZ: Thank you, Your Honour.
81 HIS HONOUR: Yes. The only other matter that I need to address is the 6AAA and I declare that under that section, but for your plea I would have sentenced you to 12 months' imprisonment.
82 MS WRIGHT: As the court pleases.
83 MS SCHWARTZ: Your Honour pleases.
84 HIS HONOUR: Sine die, Mr Schornikow. Before I leave, I note that Mr Siaoloa's family is in court, the parents. I will stay on the bench so as to allow them to approach and speak to him. Unfortunately, you can't have physical contact with him, but you can certainly go up and speak to him, and the officers will wait until you're finished doing that and then they'll take him down.
85 MS WRIGHT: Thank you, Your Honour.
86 HIS HONOUR: If you wish to, if you don't wish to, that's fine.
87 MR SIAOLOA: Thank you Your Honour.
88 HIS HONOUR: Thank you Mr Siaoloa. Thank you.
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