Director of Public Prosecutions v Siaoloa

[2016] VCC 1988

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01255

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN SIAOLOA

---

JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2016
DATE OF SENTENCE:	16 December 2016
CASE MAY BE CITED AS:	DPP v Siaoloa
MEDIUM NEUTRAL CITATION:	[2016] VCC 1988

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr S. Parker

HER HONOUR:

1Shaun Faafetai Siaoloa, you have pleaded guilty to the following offences:
(1) aggravated burglary, intent to assault person present; and (2) common law assault.  The maximum penalties for these offences are 25 years and five years respectively.  Additionally, you have agreed to me dealing with, and pleaded guilty to, a related summary offence, Summary Charge 4, commit indictable offence whilst on bail, maximum penalty is 30 penalty units or three months.

2By way of background, during February 2015 you, then aged 40, were in a relationship with Greer Fletcher, age 23.  The relationship was volatile and tumultuous.  You were living together in a share house with Stacey Taylor in Thornbury, though Ms Fletcher was the tenant and you didn't have a key to the unit.

3On 3 December 2015, at about 6.30 pm, Ms Fletcher came home and you had an argument about a phone call.  She went out of your room into
Ms Taylor's room.  When Ms Fletcher came back to your room she saw you packing your bags.  You then left.  Ms Fletcher locked the back and front doors of the unit.  You remained in the vicinity of the unit and were yelling at
Ms Fletcher.  She gathered up the rest of your clothes and gave them to you at the back door.  You grabbed her, forcing her down to her knees, and slammed her face down to the ground.  That is part of the conduct of Charge 2, common law assault.

4Ms Fletcher ran back to the house, crying, and immediately locked the back door.  You kept banging on that door.  Neither of the occupants called the police as both were scared, and thought that you could not get into the unit.  You remained outside the unit then fell asleep for a few hours.  At about 10 pm you woke up and began banging on the front window of the unit.  Ms Fletcher called the police.  Another neighbour called 000.  Ms Fletcher and Ms Taylor heard the sound of smashing glass and you entered the unit through the kitchen window.  Both women were in the bedroom and had locked the door to it.  You were yelling, "You're fucked now", and you were heard running up the stairs.

5Ms Taylor was so scared she jumped out of her bedroom window and landed on her side.  You kicked the bedroom door, breaking and damaging the lock and went in the room, going after Ms Fletcher.  That is the conduct constituting Charge 1, aggravated burglary.

6You punched her with a closed fist to the back of her head numerous times.  You grabbed her by the hair and pulled her out of the house, through the front door.  You continued to hold her hair while the other hand was holding her left arm, and headed towards Station Street.  You continued to punch her in the head.  That is part of the conduct of Charge 2, common law assault.

7At 10.24 pm police arrived.  Ms Taylor ran to them from the back of the unit and told them you and Ms Fletcher were still inside.  Police called for back-up but soon determined that no one was inside, though the kitchen window was smashed.  You and Ms Fletcher were in the street close by.  She had managed to text Ms Taylor as to her whereabouts.  At the unit, police located Ms Taylor's mobile in the backyard and saw the message which nominated the street name.  Police located you and Ms Fletcher at about 11.15 pm.

8You were arrested.  You told police you were upset because Ms Fletcher was cheating on you with your housemate, Ms Taylor, who was a lesbian.
Ms Fletcher confirmed to police you were her boyfriend and that in the past you had threatened her, that you were obsessed with her and accused her of cheating on you.  An ambulance attended and took her to the hospital.
Ms Taylor refused any medical treatment.

9In your interview you said you had argued with Ms Fletcher and that you were put in the dog house, and fell asleep outside.  When you woke up you were freezing and you were annoyed no one had checked on you.  You said you should not have done what you did, but you let your anger get the better of you.  You said you were blinded by rage, had trust issues and that you were angry and jealous.  You said you lifted the window up, it shattered and you jumped through it.  You went upstairs and the two women were in bed.  You said you did not understand why Ms Taylor jumped out the window.  You grabbed Ms Fletcher and you both left.  You walked together down the street and talked.  You said you could not remember about the bedroom door, and denied hitting, hurting or making threats towards Ms Fletcher.

10Ms Fletcher was seen by Dr Sutherland at the Austin Hospital.  On examination she:

i.had visible red marks on the right side of her face, behind her left ear;

ii.a circumferential mark on her left arm, consistent with being grabbed;

iii.minor bruising on the back of her right, lower limb. 

It was conceded by the prosecutor the injuries suffered were at the lower end of seriousness.

11On 16 November 2015,  you entered bail to appear on 12 January 2016 at Broadmeadows Magistrates' Court.  This incident occurred when you were on bail and therefore constitutes a breach.

12I was provided with a victim impact statement from Ms Greer Fletcher, dated
2 September 2016, which was read in court.  Your offending has had a significant impact on both her and her family.  She has suffered post-traumatic stress and consequently has difficulty in crowds, working and sleeping.  She suffers anxiety and is seeing a psychologist.  I understand she has now recovered from any physical injuries that she suffered.

13As to your personal circumstances, I received a report from Ian McKinnon, dated 3 September 2016, and I take that material into account.  You were born on 4 December 1975.  You were 40 years old at the time of the offending.  You moved to Australia when you were 19 and you are a New Zealand citizen.  You were raised in Auckland by your parents, who are both Baptist ministers in New Zealand.  You also have a sister who lives there.

14I received a number of character references and other material from family and others who have been involved with you in the community.  I take this material into account.  It is apparent that you have been able to be a role model to younger members of your community at various stages of your life.  Different family members have been present during these proceedings, and it is obvious you retain their support.

15You have a 20 year old daughter who resides in New Zealand who recently had a child.  You saw the baby whilst you have been in custody.  You married a long time friend, Teejay, in 2012, though you separated in 2015.  I was informed that she has visited you in custody, and that you hope to resume a relationship with her on your release.

16Since coming to Australia in 1998, you have worked in the construction industry with your uncle and did so until 2010.  You have been gainfully employed most of your time in this country. 

17You have had significant drug issues since 2014 when you commenced using methamphetamine or ice, MDMA and cannabis on a regular basis.  This drug use contributed to the breakdown of your relationship with Teejay and the tumultuous and obsessive nature of your relationship with Ms Fletcher.  Your drug use is no excuse for your behaviour, though it provides an explanation for your conduct on this night and the overall deterioration of your lifestyle and presentation around this time.

18I was informed that since you have been in custody, you have ceased using any drugs.  As you yourself recognise, you are in a better place physically and mentally without drugs.  You have gained a position of responsibility, being a billet in your unit whilst in custody. Such is consistent with your current presentation and indications regarding abstinence from illicit substances.

19You have a number of prior convictions with two previous court appearances.  These relate mainly to drugs and are not of a violent nature.  It is noted that you did not encounter any difficulties with the criminal law until you were aged about 38 years, presumably at a time when you were immersed in substance abuse issues.

20I take into account your plea of guilty.  You have pleaded guilty at the earliest opportunity and there is a significant utilitarian benefit in the plea, saving the community the cost and inconvenience of a trial.  Additionally, Ms Fletcher and other witnesses were not required to give evidence and relive the events of this night.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.

21Additionally, I accept your plea is indicative of remorse.  Such is consistent with the material tendered on your behalf, including your own letter to the court.  I accept that your time in custody has allowed you to reflect on your behaviour and that you are truly sorry for your conduct, regretting what you have put people through and letting family members down.

22I take into account that your immigration status is somewhat uncertain at this stage.  Your counsel informed me that when your bail was revoked, an application was made to revoke your permanent residency in Australia.  You have been in this country for 18 years.  That application succeeded, though you have lodged an appeal in relation to that decision, which is yet to be determined.  As matters currently stand, on your release from custody you will go into immigration detention.  I accept your time in custody is more onerous given the uncertainty of your immigration status.

23There are a number of features that augur well for your rehabilitation.  You first encountered problems with the criminal law when you were age 38, you otherwise have led a blameless life.  I accept that during your time in custody you have taken positive steps towards your rehabilitation and are currently drug free.  You continue to have the support of your family, including your ex-wife, and you have good job prospects with work available with family members.

24As recognised by the Court of Appeal in DPP v Bowden [2016] VSCA 283 at 23, in determining the appropriate sentence for the offence of aggravated burglary, it in large part depends on a careful assessment of the relative seriousness of the offence. Various considerations relevant to that assessment are there set out, some of which are relevant to your offending. It is clear you intended to assault Ms Fletcher as you forced the bedroom door, and thus your way into the bedroom. The offending occurred in the context of a volatile and abusive relationship. In addition, given the events earlier in the night, you were aware she was afraid of you.

25I accept that there are some features of your offending, namely, that it occurred at the residence where you were in fact living, and that the injuries suffered were minor, making this a less serious example of this kind of offending.

26This offending occurred during the operational period of a community correction order imposed on 24 April 2015 and whilst you were on bail.  I understand that the matter which the bail related have yet to be determined in the Magistrates' Court.  This is your first time in gaol and you have been in custody for approximately ten months.  Your counsel submitted that you should be sentenced to a term of imprisonment for a period that does not require you to serve any more time in custody.  The prosecution submitted a sentence which did not require further actual gaol time was outside the range.

27The maximum penalty for aggravated burglary is 25 years and reflects the grave seriousness with which this offence is regarded.  Although I accept it occurred at a place where you had been living, your actions in breaking the door of the bedroom in order to assault Ms Fletcher were frightening for her and Ms Taylor.  General deterrence, just punishment, denunciation of your conduct and protection of the community have a significant role to play in sentencing you.

28Additionally, although your prior matters do not involve violent offences you have breached a community correction order and bail, both orders of the court, in engaging in this conduct.  Specific deterrence has a role to play.  It is necessary to strike a balance between the matters in your favour, including your personal circumstances, plea, remorse and steps towards rehabilitation with those other matters listed above and the gravity and seriousness of this particular instance of offending.

29If you could stand up, please.

30In respect of Charge 1, aggravated burglary, you are convicted and sentenced to a period of imprisonment of 18 months; in respect of Charge 2, common assault, you are convicted and sentenced to period of imprisonment of two months; in respect of the Summary Charge 4, committing an indictable offence whilst on bail, you are convicted and fined $200.

31Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this offence I would have imposed a sentence of three and a half years with a non-parole period of two and a half years.

(At a later stage)

32HER HONOUR:  Thank you.  I am sorry, Mr Siaoloa.  I forgot to declare your pre-sentence detention, which is the time you have already spent in custody, and that will be taken off the 18 months.

33ACCUSED:  That is all right, Your Honour.

34HER HONOUR:  But I need to declare that formally in court.  So what is the PSD, please?

35COUNSEL:  It is 302 days, Your Honour, not including today's date.

36MR PARKER:  That's agreed, Your Honour.

37HER HONOUR:  302 days' PSD.  Do you agree with that?

38MR PARKER:  Yes, Your Honour.

39HER HONOUR:  Yes, all right.  I declare pre-sentence detention of 302 days and that will be added to the formal order.  Thank you.

40COUNSEL:  Thank you, Your Honour.

- - -