Director of Public Prosecutions v Siaosi
[2024] VCC 2072
•17 December 2024
The Th
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01205
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SIAOSI |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2024 | |
DATE OF SENTENCE: | 17 December 2024 | |
CASE MAY BE CITED AS: | DPP v Siaosi | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2072 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – sentencing
Catchwords: Guilty plea – attempted armed robbery – prohibited person using an imitation firearm – armed robbery – possession of a drug of dependence - unlicensed driving – ‘soft’ targets selected – full admissions made to all allegations – remorse – risk of deportation - general deterrence, denunciation and community protection given significant weight in sentencing
Legislation Cited: Crimes Act1958; Control of Weapons Act1990; Drugs, Poisons and Controlled Substances Act1981; Road Safety Act1986; Sentencing Act1991
Cases Cited:Bugmy v. The Queen [2013] HCA 37 & (2013) 249 CLR 571; R. v. Verdins (2007) 16 VR 269; Darcie v. The Queen [2012] VSCA 11
Sentence: Total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment fixed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Jeong | Office of Public Prosecutions Victoria |
| For the Accused | Mr L. Hocking | Victoria Legal Aid |
HER HONOUR:
1James Siaosi, you have pleaded guilty to the following offences:
(a) Attempted armed robbery contrary to s 321M and s75A of the Crimes Act 1958, the maximum penalty for which is 20 years’ imprisonment (Charges 1 and 2);
(b) Prohibited person using an imitation firearm contrary to s5AB(2) of the Control of Weapons Act 1990, the maximum penalty for which is 10 years’ imprisonment (Charges 3, 5 and 7);
(c) Armed robbery contrary to s75A of the Crimes Act 1958, the maximum penalty for which is 25 years’ imprisonment (Charges 4 and 6); and
(d) Possession of a drug of dependence, namely cannabis, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the relevant maximum penalty for which is five penalty units (Charge 8).
2In addition, you have pleaded guilty to five related summary charges of driving while unlicensed contrary to s18(1)(a) of the Road Safety Act 1986, the maximum penalty for which is six months’ imprisonment or 60 penalty units.
3The charges arise from four separate incidents where, armed with an iron pole on one occasion and an imitation firearm on the other three occasions, you robbed or attempted to rob convenience stores and other places likely to hold cash, during a spate of offending between 15 April 2024 and 24 April 2024. You were arrested on 26 April 2024 and have been remanded in custody since that date.
4You were born in November 1993 and were 30 years old at the time of the offending. You have admitted your prior criminal history which is limited to one previous appearance in the Magistrates’ Court in July 2023.
Circumstances of offending
5The circumstances of your offending are detailed in the summary of prosecution opening on plea dated 7 November 2024 which is the agreed basis upon which you are to be sentenced.
15 April 2024 – Werribee South General Store
6Werribee South General Store is located on Duncans Road, Werribee, and is owned by Mr and Mrs Nandarge.
7On Monday, 15 April 2024, you drove to the store in a white Toyota Camry and parked. CCTV footage from the store captures this. No number plates were attached to the car.
8Wearing a hoodie and a balaclava over your head to disguise your appearance, you entered the store at 11.39am carrying a metal pole. Mrs Nandarge was working behind the counter at this time, while her husband was organising stock in a storeroom near the counter.
9Standing a metre away from Mrs Nandarge, you banged the pole on the counter and made repeated demands for money. In fear, Mrs Nandarge hid behind the counter. Mr Nandarge, hearing his wife scream, came out of the store and grabbed you. You ran out of the store, and Mr Nandarge followed after you, trying to capture images of you on his mobile phone as you drove away. This attempted armed robbery is the subject of Charge 1.
10You had been in the store for less than 15 seconds. Although the entire incident was short-lived, Mrs Nandarge was frightened by your aggressive behaviour.
23 April 2024 – McDonald's, Hoppers Crossing
11
The McDonald's in Hoppers Crossing is located on Morris Road. On Tuesday,
23 April 2024, 21-year-old Rhythm Lubana was working as a cashier at the window of the McDonald’s drive-through. At approximately 3.34 pm, CCTV footage captures you drive up to the drive-through speaker box in your white Toyota Camry. No number plates were attached to the car.
12As you approached the speaker box, Ms Lubana asked you to wait as she served another customer. She then returned to you at the first cashier window and unlocked the window to serve you. Seated in your car, with your face covered with a black cloth and a hoodie to disguise your appearance, you pointed a black handgun at her, held low in the car. Although Ms Lubana did not know this at the time, the gun was a realistic-looking imitation firearm.
13You told Ms Lubana to give you all the cash she had in the drawer, ‘right now’. Seeing the handgun, Ms Lubana started to step back to lock the window. You appeared to panic a little, looking around, and repeated, ‘right now’. Thinking quickly, Ms Lubana closed and locked the window and stepped away to speak with her manager. You then drove away. This attempted armed robbery is the subject of Charge 2.
14The entire incident was captured on CCTV and lasted one minute.
15Ms Lubana told police that she was so scared she could not scream when you committed this crime and was shaken when she spoke to her manager.
23 April 2024 – Coles Express Service Station
16The Coles Express Service Station is located on Point Cook Road, Point Cook. On 23 April 2024, Ms Soundharya Chilkuri was working alone at the service station as a cashier. CCTV footage from the petrol station captures you park your white Toyota Camry, with no number plates attached, at 4.05 am. Ms Chilkuri heard the doorbell ring and unlocked the door from behind the counter.
17You entered the store wearing a black mask covering your face up to your nose, a cap and a hoodie pulled over your head to disguise your appearance. Only your eyes and forehead were visible. You entered the store, pulling the imitation handgun from your pocket and walked up to the counter. You pointed the gun in Ms Chilkuri’s direction[1] and said, ‘give me the money’, four or five times. Fearing for her life, Ms Chilkuri took all the five-dollar notes from the till and handed them over to you. You then said, ‘Give me the whole till’, in response to which Ms Chilkuri handed you the cash drawer, and you left the store. The till contained $194.
[1] CCTV, Still 6
18CCTV footage captures you leaving the store at 4.05.45 am, before driving away.
19Ms Chilkuri called police and her employer. She was left very shaken by your offending, believing she was going to die and would not see her baby again.
24 April 2024 – Club 741, Brooklyn
20Club 741 is a brothel that operates in Brooklyn. At 9 pm on Wednesday, 24 April 2024, you entered the club and were directed to the waiting room by one of the staff. You were wearing a beige hooded jumper and a Louis Vuitton shoulder bag. On this occasion, you had made no attempt to disguise your appearance. After a few minutes, the staff member returned, and you requested ‘Olivia’ for two and a half hours.
21The staff member went behind the reception counter and started to calculate the price while you stood in front of her at the counter. She then heard you say, ‘Let me make this easy for you’ or words to that effect, twice. The staff member looked up to see you holding what appeared to be a black pistol pointed at her. To her, it looked like a 20-centimetre-long Glock. Shocked, she looked twice to make sure it was a pistol, and then panicked. You said something to her, but she could not recall what it was.
22Another staff member was inside the staff room monitoring the live CCTV feed. She could see you at the counter, and heard you say, ‘all the cash you’ve got’ through the staff room door. The staff member at the counter then handed you all the cash from the till, excluding five-dollar notes. You took the money and left the premises.
23In her statement to police, the victim described her fear of being shot had she not handed the money over to you.
Investigation and arrest
24Police began surveillance of your home on 26 April 2024 and matched the white Toyota Camry parked at the property with that seen on the CCTV captured at the Werribee South General Store and McDonald's.
25Police cordoned off the area, following which you surrendered yourself and were arrested.
26When the police searched the premises, they located a black imitation handgun inside the Louis Vuitton shoulder bag. The police also found the clothing worn during the offending and a purse belonging to your wife containing cash in the sum of $2,375.
27Further enquiries confirmed that you were disqualified from driving due to driving under the influence of drugs on 5 October 2021. You were unlicensed at the time of this offending as you had failed to complete a drug behavioural change program to restore your licence.
28You were also prohibited from possessing a firearm, including an imitation firearm, under the Firearms Act 1996 due to a court finding that you had dishonestly undertaken the retention of stolen goods on 28 July 2023.
29You participated in a record of interview with police at Werribee Police Station and made full admissions to all allegations.
30You told police that you had a significant drug addiction and had relapsed at the time of the offending. You said you had been criticised and ostracised for this by your community, family and friends, as drug use was contrary to their religious beliefs. You told police this caused you to feel suicidal which you say was the catalyst to your offending.
31You also told police that you had a drug debt and needed money to support your family, after losing your house and car. You told police the Toyota Camry was a rental car and admitted removing the licence plates. You admitted purchasing the imitation firearm online before attending McDonald's ‘to do something more serious and attract police attention’. You told police that after each armed robbery, you used the money to purchase more drugs. After robbing the brothel, you said you gave some money to your wife for Mother’s Day.
Nature and gravity of offending
32
Armed robbery is a serious offence as is reflected in the maximum penalty of
25 years' imprisonment fixed by Parliament. Attempted armed robbery also carries a significant maximum penalty of 20 years' imprisonment. However, the nature and the gravity of these offences can vary significantly.
33In my view, there are a number of features that inform the seriousness of your offending;
· the fact this was not isolated offending, but involved a spate of offending comprising two attempted armed robberies followed by two armed robberies, over a period of nine days;
· the fact you selected ‘soft’ targets with few staff, that each handled cash and in relation to the third incident, targeted a convenience store in the early hours of the morning where the cashier was working alone;
· the fact the weapon used by you in respect of three of the incidents was a realistic replica of a handgun, can only have heightened the fear experienced by each of the victims of those incidents;
·
the fact that the imitation handgun was pointed at the victims, including a
21-year-old cashier at McDonald's, whilst making the threats;
· the fact the metal pole was used to menace the shopkeeper during the first incident, hitting the counter with it while demanding money; and
· the fact the offending involved a degree of planning, where you had purchased the imitation firearm online following the first incident, in addition to removing the number plates on your car and taking steps to disguise your appearance to avoid detection for the first three incidents.
34Offending such as this causes real trauma to the victims. Although no victim impact statements were provided in this case, your offending can only have been extremely frightening for each of the victims of your armed robberies, even where you fled before succeeding in your demands for money. People working in convenience stores and similar businesses are vulnerable to this kind of violent criminal activity, particularly those working alone or late at night with no or minimal security, and deserve to be protected by the law.
35Against these factors, however, I accept that your offending was not particularly sophisticated and that, whilst undoubtedly traumatic for the victims, each incident was of a short duration and was not accompanied by any acts of physical violence. In the first two instances, when you faced any form of resistance, you fled.
36While these are not a low-level examples of this kind of offending, nor are they the most serious examples. But you must have known what you were doing was very wrong. You bear a significant level of moral responsibility for your offending, however this is moderated to some extent by your personal circumstances, to which I now turn.
Personal circumstances
37Much of the detail of your personal circumstances is outlined in the report of psychologist, Ms Carla Lechner, who examined you on 17 September 2024.
38You were born and raised in Samoa until you were 16 years of age. Growing up, you enjoyed a close relationship with your parents, particularly with your mother and your four siblings. You attended school in Samoa until Year 10.
39You enjoyed the support of a loving family with a strong Christian faith as you grew up. You were not exposed to violence between your parents but did witness violence within your extended family. You saw your extended family be violent towards your father, but at the age of 10 you felt helpless to intervene.
40Despite the love and support of your family, your childhood years were marred by physical abuse against you at the hands of your maternal cousins. You were also subject to ‘random’ acts of bullying at school.
41
You report that you were the victim of sexual abuse between the ages of six and nine by two separate members of your mother’s extended family. During your assessment with Ms Lechner, you told her that the sexual abuse ‘brought sex into my life at a very young age’ but that you never disclosed the sexual abuse previously for fear that it would 'cause problems' within the family. You told
Ms Lechner that this experience of sexual abuse continues to affect you, that you are ‘never free’ of the feelings of ‘sadness and anger’ that you felt as a teenager.
42In 2010, when you were 16, your family left Samoa to live in New Zealand where you completed Years 11 and 12. This was a difficult transition for your family. In a letter provided to the court by your parents[2], they write that they found work in fruit orchards, pruning and picking fruit, ‘come rain or shine’ in order to get the money needed to support the family and to pay for your education. You would help out by working with your father fruit picking after school and on school holidays. However, you also began smoking cannabis and drinking significant amounts of alcohol at around this time.
[2]Exhibit 2 – Character reference from Mauola and Timena Siaosi and the Siaosi family, undated.
43After leaving school, you worked in a range of jobs in New Zealand, including in retail and as a meat worker. You are also a talented musician, and spent time playing music – bass, keyboard and drums, in your church.
44You met your wife through church eleven years ago. She was 13 and you were 17 years old at that time. When she became pregnant at the age of 15, you faced the challenge of being young parents, and the disapproval of your father in particular. Your first child was born in May 2013, and you married your wife two months later. You have another child, now aged 5, who has been diagnosed with autism spectrum disorder, who's behaviour can be difficult to manage.
45In 2016, you came to Australia with your family and obtained employment in cabinetmaking, labouring and construction. You were able to support your family financially. However, your abuse of alcohol continued, drinking up to a carton of beer over two days each week. You undertook a course to become a barber in 2019, and worked in this role prior to the COVID-19 pandemic.
46When the pandemic began, you fell into financial hardship and were evicted from seven different rental properties due to your inability to pay the rent. You began using ice during your time working as a barber, and your consumption of alcohol decreased. However, your use of ice increased in the face of financial stress, and by the time you were remanded, you report smoking around a gram of ice a day and were not sleeping. You had ceased living with your family on a permanent basis to hide your ice use from them and your community and were living on the streets. You report experiencing thoughts of suicide at this time.
47You told Ms Lechner that your offending was a ‘cry for help’, stating you were hoping to be caught by police, or that you would end your life.
48Since being remanded, you have ceased all drug use, are exercising daily and are working in horticulture. You have taken the opportunities available to you to complete a number of courses, including programs to prevent a relapse into cannabis and ice use. You now have weekly contact with your family and children. You told Ms Lechner that gaol has ‘saved my life…I am glad it happened, it got me clean’. Ms Lechner states you have a recent history of a major depressive disorder but that this has markedly improved since ceasing all drug use.
Matters in mitigation
49Having discussed the objective gravity of your offending, I now turn to the various matters that operate in mitigation of your sentence.
50First and foremost, you entered an early guilty plea to the charges at a committal case conference in the Magistrates’ Court, and in doing so acknowledged responsibility for your offending. There is significant utility in your guilty plea, particularly in saving the victims from having to recount these events in court. Your early guilty plea also saved the court and the community the time and resources associated with a trial.
51Beyond the remorse inherent in your guilty plea, you have reflected upon the impact of your offending, telling Ms Lechner, ‘I’m deeply remorseful for the victims…I’ve changed their lives, I wish I could take the time back’. Ms Lechner states you were close to tears when you spoke with her. Your parents write that you are ashamed of your actions. I accept that your guilty plea is accompanied by genuine contrition for your offending. This fact also has bearing on my assessment of your prospects of rehabilitation, which I return to shortly.
52Secondly, your experiences of being exposed to violence in your formative years, coupled with the sexual abuse you were subject at a very young age, enliven the general principles enunciated in the case of Bugmy[3] in moderating your sentence. Ms Lechner is of the opinion these experiences led to symptoms of complex PTSD, such as low self-esteem, avoidance (through substance abuse), and behavioural dysregulation. As was observed in the case of Bugmy, the moral culpability of an offender who's formative years have been impacted by disadvantage or dysfunction, such as yours, cannot be equated with an offender who's childhood has not been marred in this way.
[3]Bugmy v. The Queen [2013] HCA 37; (2013) 249 CLR 571.
53I have moderated your sentence accordingly.
54However, it was conceded by your counsel that there is no evidentiary basis to conclude that your symptoms of PTSD were causally connected to your offending or otherwise enliven the principles enunciated in the case of Verdins[4].
[4]R. v. Verdins (2007) 16 VR 269.
55Thirdly, although you have lived in Australia with your wife and children since 2016, you remain a New Zealand citizen. Your wife, children, parents and parents-in-law, and your siblings, all live in Australia now. Upon being sentenced for this offending, there is a realistic prospect that you will be deported upon completion of your sentence. Although I cannot speculate upon any action the Minister may take in this regard, I accept that the uncertainty associated with the risk of deportation, and an understandable concern about the impact this may have on your family, will be a source of considerable anxiety for you in custody. I have taken the additional burden this will have on your time in custody into account in mitigation of your sentence.
56Finally, I consider that you have reasonably good prospects of rehabilitation for a number of reasons. As stated, you have reflected on your offending and are remorseful for your conduct. You retain the love and support of your wife, family and siblings. The character references which were tendered on your behalf from your wife, parents and other family and friends all speak of you as a loving and kind person, who has worked hard to provide for your family. You have a history of employment and experience working in a range of industries, including as a barber. Your wife and children have continued to visit you regularly since being remanded, and the letter provided by your wife reflects on the changes she has seen in you now you are drug free.
57Your prior criminal history relates to an appearance in the Magistrates’ Court on 28 July 2023 for the offences of dishonestly undertaking the retention of stolen goods, unlicensed driving, using an unregistered vehicle and displaying incorrect number plates, for which you were placed on an adjourned undertaking without conviction. You have no previous history of engaging in violent or confrontational offending. You have two other pending matters in the Magistrates’ Court including a plea listed in January 2025 for the offence of hindering police. One other matter remains outstanding. I accept the serious offences for which I am to sentence you involve conduct that was out of character for you, driven by an escalating problem with drug abuse in response to financial and other stressors you experienced in the lead up to this offending. Ongoing drug treatment and counselling is clearly warranted to prevent any relapse.
58You have engaged in multiple courses aimed at improving your prospects of rehabilitation upon your eventual release from custody. This is to your credit. Subject to your ability to remain abstinent from illicit drug use into the future, and a willingness to engage in ongoing drug treatment, there are many positive indicators for your future. The need for the sentence I impose to specifically deter you from future offending is correspondingly reduced.
Other sentencing considerations
59In cases involving armed robberies of this nature, general deterrence, denunciation and community protection are sentencing considerations of significant weight.
60To achieve these sentencing objectives, the law has consistently regarded armed robbery offences, particularly those involving ‘soft targets’ such as convenience stores, as deserving of ‘stern punishment’ given their prevalence. Others must be deterred from similar offending conduct by the sentence I impose.
61I have had regard to current sentencing practices, and the authorities to which I was referred, in particular to the case of Darcie v The Queen[5] which has certain similarity to yours. Current sentencing practices are a guide, no more, and are just one of many sentencing considerations. Every case must ultimately turn on its own facts and circumstances.
[5][2012] VSCA 11.
62Finally, a degree of cumulation is warranted to reflect each separate incident of offending and the impact on the separate victims of your offending. I am conscious that there is some duplication between Charges 2, 4 and 6 and the offence of being a prohibited person using an imitation firearm. I have taken care to ensure that you are not doubly punished for the same conduct. I have also considered the sentencing principle of totality in determining the appropriate level of cumulation in respect of each incident of offending. Finally, I have sought to ensure your ongoing rehabilitation, mindful that this is your first experience of imprisonment, in fixing an appropriate non-parole period.
Sentence
63Balancing the matters to which I have referred, whilst guided by the maximum penalty for each offence, I sentence you as follows:
64
On Charge 1, attempted armed robbery, you are convicted and sentenced to
20 months’ imprisonment.
65On Charge 2, attempted armed robbery, you are convicted and sentenced to two years six months’ imprisonment.
66On each of Charges 3, 5 and 7, being a prohibited person using an imitation firearm, you are convicted and sentenced to 12 months’ imprisonment.
67On Charge 4, armed robbery, you are convicted and sentenced to three years’ imprisonment. This is the base sentence.
68On Charge 6, armed robbery, you are convicted and sentenced to three years’ imprisonment.
69On Charge 8, possession of a drug of dependence, namely cannabis, without conviction, you are fined $250.
70
On summary charges 15 to 19, being the charges of unlicensed driving, you are convicted and sentenced to an aggregate sentence of two months’ imprisonment. You are disqualified from obtaining a licence or permit for a period of
12 months from today’s date pursuant to s 89A of the Sentencing Act 1991.
71I make the following orders for cumulation upon Charge 4 and upon one another:
(a) Four months of the sentence imposed on Charge 1;
(b) Eight months of the sentence imposed on Charge 2; and
(c) Twelve months of the sentence imposed on Charge 6.
72All other sentences are to be served concurrently.
73This gives a total effective sentence of five years’ imprisonment. I fix a non-parole period of three years’ imprisonment. This is the period of imprisonment you must serve before you become eligible for parole.
74Pursuant to s18 of the Sentencing Act 1991, I declare 235 days of presentence detention as already served under the sentence I have imposed.
75I indicate, pursuant to s6AAA of the Sentencing Act 1991, that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of six years, six months’ imprisonment with a non-parole period of four years, six months' imprisonment.
76Finally, I make the disposal and forfeiture orders sought by the prosecution, noting that they are not opposed.
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