Director of Public Prosecutions v Siaosi
[2024] VCC 92
•13 February 2024
charge
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR 22-00520
CR-23-01315
CR-23-01321
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FIAMATE SIAOSI |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2023, 17 October 2023, 22 November 2023, | |
DATE OF SENTENCE: | 13 February 2024 | |
CASE MAY BE CITED AS: | DPP v Siaosi | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 92 | |
REASONS FOR SENTENCE
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Subject: criminal law - sentence
Catchwords: Pleas of guilty to charges on 3 indictments: CR-22-00520 pleaded guilty - one charge of aggravated burglary, 3 charges of theft, one charge of burglary and one charge of being a prohibited person in possession of a firearm, two summary charges, unlawful assault and unlicensed driving. CR -23-01315 pleaded guilty - handling stolen goods, theft of a car, discharging a firearm, aggravated carjacking, and being a prohibited person possessing a firearm one summary charge of failing to answer bail.CR-23-0132 pleaded guilty - intentionally causing injury and being a prohibited person in possession of a firearm, two summary charges, unlicensed driving and committing an indictable offence while on bail. Offender 41 years of age, suffering terminal cancer, adjustment disorder with depression.
Citations: Verdins v R [2007] VSCA 102
Sentence: global total effective sentence of 8 years and 3 months with 4 years to be served
before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Ms A. Yianoulatis | Bowler & Co |
HER HONOUR:
1Today I am sentencing Fiamate Siaosi on three indictments.
2Mr Siaosi, you have pleaded guilty on indictment number CR-22-00520, to one charge of aggravated burglary, 3 charges of theft, one charge of burglary and one charge of being a prohibited person in possession of a firearm. You have also pleaded guilty to two summary charges, unlawful assault and unlicensed driving.
3These offences occurred on 30 June and 1 July 2021 with two other offenders, Simon Green and Luke Bird. I sentenced them on 9 October 2023, after having heard the pleas on 30 August. You also appeared on that date, having been arraigned, pleading guilty, on 26 June 2023. Your matter had resolved on 11 June 2023.
4You have also pleaded guilty on indictment number CR -23-01315, to charges which arose from offending that occurred on 1 November 2022. The co-accused, Atalani and Ata were sentenced by Her Honour Judge Karapanagiotidis of this Court on 20 November 2023. The charges to which you have pleaded guilty are: handling stolen goods, theft of a car, discharging a firearm, aggravated carjacking, and being a prohibited person possessing a firearm. You have also pleaded guilty to a summary charge of failing to answer bail.
5The third set of charges arose from offending on 3 November 2022 on indictment number CR-23-01321, intentionally causing injury and being a prohibited person in possession of a firearm. You also pleaded guilty to two summary charges, unlicensed driving and committing an indictable offence while on bail.
I shall set out the circumstances in relation to each group of offences, identifying them by reference to the date of the occurrence. I shall then refer to your personal background and circumstances. Finally, I shall pronounce sentence and explain the reasons.
CIRCUMSTANCES OF OFFENDING
(1) The offending on 29 June/1 July 2021 in Brunswick – CR-22-00520
6On 30 June 2021 at about 10 pm Green, Bird and Siaosi went to the front of an apartment building at 300 Victoria Street, Brunswick. The prosecution summary described them as having loitered at the rear and at the entry of the property for about 40 minutes, captured on CCTV.
7Bird can be seen trying unsuccessfully to enter the building by forcing open the front door. All three then walked away from the front door and continued to loiter at the rear and the front of the building.
8Green can be seen on CCTV at the front of the premises putting on a fake red beard. At this point Siaosi had a face covering, which had been removed by the time he left the building.
9The front door was opened by a resident, and Bird stopped the automatic doors from closing and entered carrying a pizza box. He then opened the front door for Siaosi.
10That is Charge 1, aggravated burglary. It is put on the basis of complicity, as is the charge of unlawful assault.
11On level 1, the three men entered an apartment via the unlocked front door. Charmaine Refalo and Jade Hallowell were seated in the living room of the apartment and saw the three men enter.
12They were each wearing face coverings to conceal their identity. Green was carrying a firearm.
13Hallowell stood up to confront them, grabbing the firearm held by Green, and swung him around. Green hit the wall next to the bedroom door.
14Bird and Green rushed in and Hallowell was pushed onto the bed. He saw that one of the men was carrying a pinch bar. He was hit numerous times. Hallowell managed to tackle one of the men, either Bird or Siaosi. Parts of the firearm broke and fell on the floor The men stopped hitting him. That is summary Charge numbered 6, unlawful assault.
15All three men left and Hallowell soon realised that his bag containing his wallet and two phones, had been taken, as well as his keys. This is Charge 2, theft of those items.
16Also in the apartment that night was Charmaine Refalo, a friend of Hallowell's. She saw the three men come in aggressively through the unlocked front door. She saw that one man had a long black gun, one had a black and silver kitchen knife and
17the third had a hammer. She observed that all three were wearing face masks. The man with the hammer came towards her, raising the hammer. She heard Hallowell tell them to get out, and then the men pushed Hallowell towards his bedroom.
18Refalo ran out of the apartment. She went to a friend's house and called the police.
19The police arrived at about quarter past midnight, and awaited the arrival of other police. Hallowell told police that the men had entered his apartment with weapons, possibly including a firearm, that he had been assaulted, and his two mobile phones had been stolen, together with his building access card which had been in his bag.
20He described being struck around the head in his bedroom and assaulted at various points in the room. He produced a wallet which he said one of the men had left behind. It contained an identification in the name of Luke Bird, whom Hallowell said he knew, and that he was one of the offenders. He said Bird had done 'the wrong thing' by him recently and that Bird owed him $50.
21Injuries were observed on Hallowell and photographs were taken. These included bruising and swelling on his arm, red marks and scratches on numerous parts of his upper torso, swelling and broken skin behind his left ear and swelling on his left cheek. Various broken parts of a firearm were found on the bedroom floor.
22It was later ascertained that when the three men arrived at the building and gained entry by following a resident through the open door, they made their way to the basement, forcing entry through secure doors using a jemmy bar.
23Metal compliance tags taken from fire extinguishers were later located in the door catches to prevent the interior doors from locking. When police searched the basement soon after their arrival that night, they found a black Ford utility with the rear hard lid open, held open by a black pole. The vehicle belonged to Hallowell and appeared to have been rummaged through.
24CCTV footage at this location shows Green carrying a firearm when in the basement, and later when leaving the building after the aggravated burglary.
25From the basement the men then walked up to the ground floor, gaining access to the fire escape by forcing the door open to Level 1, and then via the fire escape to the apartment.
26Just after midnight, by then, 1 July, police went to the apartment and located in the bedroom a wallet containing ID documents belonging to Bird already referred to, and items broken off a .22 sawn off rifle. They also found a pizza box and a metal compliance plate from a fire extinguisher wedged into the door.
Offending on 1 July 2021
27CCTV footage from the storage facility shows that at approximately 8.28 am on 1 July, Siaosi and Green went to the Public Self Storage in Epping, in a black BMW X5 with no registration plates. Siaosi was wearing a yellow 'flouro' top, and Green an orange 'flouro' top. Green was still wearing the red false beard.
28Siaosi and Green entered the building and removed tools and property belonging to Hallowell from a self-storage unit and together loaded them into the BMW. Green then left in the car and Siaosi left on foot. This incident was captured on CCTV. This is Charge 4, burglary and Charge 5, theft.
29That night, 1 July, at about 8.40 Siaosi returned to the apartment building at 300 Victoria Street, Brunswick, and stole Halliwell's Ford Falcon utility. He later admitted this to the police. That is Charge 3, theft of a vehicle, and summary Charge 13, unlicensed driving.
30Green was arrested on 5 July 2021 in Preston, police having found him in a black BMW (AEM 912). Various tools, a high-Vis jacket and a set of registration plates (TOJ 800) were found in the boot of the car.
31Green was transported to his home address in Mill Park, and Siaosi opened the door to the police. A search warrant was executed for that address, and Siaosi disclosed to the police that there was a loaded firearm in the front room under the coffee table which police then located. This gives rise to Charge 6, possessing a firearm as a prohibited person.
32Siaosi was interviewed on 5 July 2021 and stated that he had been asked to help as a good friend was being stood over for money. He admitted that he was present and said he had never met the complainant before. He said the property taken was whatever had been on the table, and it had been put into a bag. This included a note stating that the complainant had a storage locker, with the name and location, and the entry and exit combination.
33He stated that when the police arrived earlier that day he was in possession of a loaded firearm as he was expecting someone else, and after the police identified themselves, he put the firearm back under the coffee table. The three men had taken the keys for a Ute and a motorbike that was in the car park. Siaosi said he returned and took the Ford V8 XR6 Turbo car and left it somewhere.
34He identified himself on the CCTV footage, gaining access to the building.
35Parts of the firearm were examined and DNA comparisons made. DNA strongly consistent with that of Green was found on the trigger and grip regions, and consistent with that of Siaosi was also found on the grip region. DNA consistent with being his was also found on the metal tube from the gun. The firearm was tested with the cartridge located in Green's bedroom, and the two were found to be compatible, and capable of functioning as a single-shot rifle.
Gravity of the offending
36As I said when sentencing the co-accused, the prosecution sought to characterise this offending as at the high end of seriousness, describing it as planned and quite brazen, committed in company, with disguises used to avoid recognition under CCTV cameras, being armed, at night, seen loitering around the entrances, and in a residential building. These features of their presence constituted a possible risk to the public.
37The partially contrary view advanced by Mr Nikakis who appeared for Mr Green, was that the entry to the building suggested it was unplanned and opportunistic, in following a person through the door, with the firearm hidden, and no members of the public in the vicinity.
38An objective view is that the incident was certainly planned up to a point, with an opportunity for entry to the building arising from the entry of the person the men followed through the door. The fact that the firearm was hidden suggests that at that point of entry there was no actual threat to anyone and nothing to suggest that there would have been. The behaviour of the men at this point was not confrontational.
39The offending was not at the highest end of seriousness, nor even very high; it was probably closer to mid-range, but it is difficult to be more precise. Once inside the apartment the firearm was not used and the assault against Mr Hallowell was in the form of a push.
40The seriousness of any aggravated burglary is demonstrated by the maximum penalty available, which is imprisonment for 25 years. It is recognised that there exists a wide range of possible examples of the crime.
41For the other charges the maximum penalties are as follows: for theft, for burglary, and for being a prohibited person in possession of a firearm, 10 years, for unlawful assault, 3 months, and for unlicensed driving, 6 months.
(2) Offending on 1 November 2022 – CR-23-01315
42CR-23-01315 relates to offending in which Mr Siaosi was co-offender with Jin Atalani and Michelle Ata. They are brother and sister, and Ms Ata is the partner of Mr Siaosi.
43He has pleaded guilty to a charge of aggravated carjacking, theft, being a prohibited person in possession of a firearm, discharging a firearm and handling stolen goods. There is also a summary charge of failing to answer bail. The charges relate to three incidents which occurred in November 2022. There were three victims of the offending.
44A summary of the offending is as follows.
Incident 1
45On 29 July 2022 a Nissan X-Trail car belonging to Rahul Singh was stolen from inside an auto shop in Deer Park. This was the car Siaosi was driving on 1 November, and it gives rise to Charge 2, theft.
46This car was used in the second incident which occurred on 1 November 2022, by which time it was bearing stolen registration plates. This gives rise to Charge 1, handling stolen goods.
Incident 2
47The victim in the second incident was Mohammed Symen, whose surname appears throughout the prosecution summary spelt as Symen, or Smyen. As the Victim Impact Statement bears his name spelt as Symen, I have adopted that spelling, subject to correction.
48At about 9 pm on 1 November 2022 the victim Mohammed Symen was in the front yard of his home. His Ford Territory vehicle was parked on the street outside his house. As he walked towards it, the stolen Nissan X-Trail driven by Siaosi, with the two co-accused as passengers, approached the property and stopped in front of it. Siaosi got out of the car and went up to Symen and asked him 'What’s your problem?' Symen did not know him and said 'I don’t know who you are'.
49Symen was afraid and got into his car and drove away. Siaosi returned to the Nissan and started to follow him. He then engaged in a pursuit of Symen through the surrounding streets. A witness saw the two cars driving away and called Triple 0.
50A short time later as the two cars drove along Blessington Parade, Lalor, Siaosi drove in front of Symen's car. Atalani leaned out of the rear window of the car and discharged a single shotgun round towards Symen's car. The shotgun pellets struck the bonnet and windshield of the car. This is Charge 3, discharging a firearm, put on the basis of complicity.
51Symen stopped his car so that it was angled across the road. Siaosi can be heard on CCTV footage yelling: 'go again, go again', as if encouraging Atalani to shoot at Symen again.
52Symen then drove his car towards Siaosi and collided with the car Siaosi was driving. The impact disabled both cars but the Ford continued to move along Blessington Parade and into Donovan Street. While it was still moving Symen got out of the car and ran along Donovan Street yelling for help.
53Siaosi and the co-accused got out of the car, taking with them various items from inside it. A witness recorded these actions on her mobile phone. The recording included a conversation in Samoan involving a discussion about a car being destroyed, that they have to leave and a female stating that she does not have everything. Male and female voices were also recorded shouting 'Marke' and 'Mish' which are references to Siaosi and the co-accused Ata.
54Meanwhile, as Symen ran along Donovan Street, witnesses heard him in distress and went to him. He told them to call the police , saying 'They have a gun'. Siaosi ran towards Symen and the two witnesses. All were yelling.
55Symen and the witnesses went inside a house to hide from the men. They turned off the lights and locked the door. At 9.09 Symen called Triple 0, while at the same time Atalani was depicted on CCTV footage from a house in Donovan Street, carrying a shotgun in his right hand.
56As Siaosi and the co-accused walked along Donovan Street, they passed the house where Symen and the two witnesses were hiding. A male voice called: 'I'll shoot you'. Siaosi then got into Symen's car before getting out a short time later.
57A third witness heard yelling and swearing and looked out of her window in Donovan Street, where she saw two men walking along the street. She started recording on her phone. As Atalani walked along he discharged another round from the shotgun.
58At about 9.13 pm the men turned into Dunmore Street and approached a house. Atalani rang the doorbell. The occupant came to the door and saw a man hunched over. He asked her for help; she did not open the screen door but told Atalani to go away.
59Shortly afterwards the co-accused left Dunmore Street and walked towards Carney Street in Lalor.
Victim Impact Statement
60The only Victim Impact Statement that was provided was by Mr Symen. He stated that the crime affected him very badly. He said he has anxiety and feels paranoid and scared about going out and hardly ever goes to the park now. He orders groceries to be delivered, rather than to go out to get them, and does not socialise with friends. He lost his car and has had to use public transport and taxis which adds to his expenses and takes longer to get to work. This in turn has reduced his earnings from his two jobs.
61Clearly the offending had a significant effect on him.
The gravity of the offending
62During the hearing of the application for sentence indication, Ms Yianoulatos, who appeared on behalf of Mr Siaosi, put her instructions that the incident arose from a disagreement on the road when the victim drove erratically and gave offensive hand signals. She submitted that the offending was unsophisticated and opportunistic rather than premeditated.
63In ruling on the application for sentence indication I informed the parties that I would proceed on the basis of the circumstances as put by the prosecution in the opening dated 23 October 2023, with no provocation by the victim Symen, and Ms Yianoulatos, took no issue with this.
64It was a terrifying attack on a member of the public, who said he thought he was going to die. The offenders were in a car, in possession of a gun and the victim's car was shot at. So terrified were the victim and the two witnesses that they hid in a nearby house. It was behaviour that threatened public safety in a serious way, and yet the mayhem the offenders created did not deter them from further offending and they went on to commit the third incident, ostensibly to obtain a car to suit their needs instead of using public transport. It is offending of a very high order of seriousness, of a type which clearly engenders extreme fear in the community. In such circumstances any need to distinguish opportunistic from premeditated offending is of reduced importance. However, the presence of a gun indicates at least some degree of premeditation, even if not specifically directed towards the particular victim, in the particular circumstances.
65The moral culpability of Siaosi is extremely high and is arguably not reduced by his claim to have been drug affected. The need for community protection as a sentencing principle in such a case outweighs any mitigation which might flow from drug addiction or dependence.
Incident 3
66While Incident 2 was happening, at about 9.13 pm that night, Filip Trpeski got into the driver's seat of his car, a Skoda Scala, parked in the driveway of his house. He activated the ignition but did not start the engine. He then used his mobile phone.
67As he did that, he was disturbed by Siaosi or Atalani knocking on the driver's window. One of them was brandishing a double-barrel shotgun in his right hand, pointing it directly at Trpeski's face, demanding that he get out of the car. He complied.
68As it cannot be proved who was in possession of the firearm, the case is put on the basis of each being complicit with the other.
69As Trpeski got out of the car he sounded the horn to alert his family and seek assistance. Siaosi or Atalani was still pointing the gun at his face, so he grabbed the barrel of the gun and pushed it away. He tripped Siaosi and landed on top of either him or Atalani, resulting in the two wrestling briefly. The other accused, either Siaosi or Atalani, intervened by grabbing the back of Trpeski's jumper and dragging him to a garden bed.
70At that point Trpeski surrendered and put his hands up in the air. Atalani entered the driver's seat and Siaosi got into the right rear seat of the car. Trpeski asked Atalani for his phone, and it was returned to him. As Trpeski understood what was intended he assisted Atalani to start the car, who then drove away and Trpeski called the police. His assistance in starting the car is a clear indication of the fear he was experiencing. That is Charge 1, aggravated carjacking.
71After police attended the scene and spoke with Trpeski they obtained the CCTV footage referred to. It showed the Skoda arriving at Joshua Court, the home of Atalani and Ata, at 11.51 pm that night, 1 November. Several people got out and entered the house. About 45 minutes later, at 12.36 am on 2 November, the Skoda was seen to reverse out of the driveway. A single occupant was seen to remain in the car for a short time before returning to the house.
72At 1.51 am, a man believed to be Siaosi got into the car and drove away. The car is then seen multiple times between 2 November and 4 November coming and going from Joshua Court. On 4 November Siaosi was seen using the Skoda to ram a car belonging to Sula Ata, the mother of co-accused Ata.
73The prosecution opening dated 23 October 2023, filed before the sentence indication hearing, sets out details of other aspects of the police investigation of all three incidents.
74One aspect concerned the firearms used. At about 12 noon on 2 November Mr Trpeski returned to his home address and found a firearm in the garden bed near his driveway. He called the police who attended and seized the gun and an unspent shotgun round. The prosecution case is that these items were disposed of there by Siaosi or Atalani after the second incident, and that therefore a different firearm was used in the third incident.
75The three co-accused were arrested on 10 November 2022. Throughout that day Siaosi was observed in the Kings Park area driving the Skoda with both co accused as passengers, and later travelling to Walmer Street, St Albans, where the arrest took place. During the search of the house that night at Joshua Court, a shotgun dismantled into three pieces was found, which is the basis for Charge 5, being a prohibited person possessing an imitation forearm.
76On 21 November a fingerprint lifted from the Skoda was found to match Siaosi's, and in June 2023 DNA analysis of that shotgun revealed DNA material matching his.
77Data examined on his mobile phone revealed conversations between him and the other co-accused before and after incidents two and three, that were consistent with what witnesses reported, and revealed that the phones of the three men were all in close proximity to each other just before the arrests.
78Siaosi generally made no comment when interviewed, save for questioning some of the allegations, such as how the Nissan was driving in front of the Ford at one stage.
Gravity of the offending in relation to Incident 3.
79Once again, a random member of the public was subjected to a terrifying ordeal with his car being taken when a double barrel shotgun was pointed in his face. The victim had the fortitude to fight back until he was overcome. It is just as serious as the previous incident which had occurred minutes earlier. The moral culpability of Siaosi is elevated by having been undeterred by what he had just done to Mr Symen, in being determined to satisfy his own transport needs through the commission of a serious criminal act.
Maximum penalties
80The maximum penalty for theft and for being a prohibited person possessing a firearm is 10 years' imprisonment. For discharging a firearm with reckless disregard for safety, and for handling stolen goods, 15 years, and for aggravated carjacking, 25 years. For failing to answer bail the maximum is 2 years' imprisonment.
81Aggravated carjacking is a category 1 offence and a custodial sentence is mandatory subject to the relevant provisions of the Sentencing Act.[1]
[1] S.5(2G)
(3) The third indictment, CR-23-01321.
82I turn now to CR-23-01321. The victim, Iosua Brown, was shot by you, Mr Siaosi, and suffered extensive injuries.
83In this offending Siaosi and a co-offender used the Skoda car stolen from the victim Trpeska on 1 November. Siaosi drove to a vacant property at 21 Erica Avenue, St Albans, known for drug trafficking and drug use activities. He entered that address on foot and remained there for half an hour between about 6.30 and 7 pm, after which the Skoda was seen being driven back towards the address by the co‑offender.
84Having driven into Erica Avenue, the co-offender approached the house on foot and entered the house. Soon afterwards the victim Brown walked out of the property, loitered outside for a few minutes and then walked down Erica Avenue, stopping on the corner of McIvor Road. Sioasi and the co-offender followed the victim and appeared to watch where he went. CCTV footage shows him concealing an item in his jacket, believed to be a firearm.
85About 5 minutes later the Skoda, with Siaosi driving, stopped next to the victim and the parties conversed. The Skoda then drove off and the victim walked away from the area. About half an hour later he returned to 21 Erica Avenue. A minute later Siaosi walked towards Erica Avenue and the Skoda was driven away by the co-offender. Siaosi then walked down the driveway of 21 Erica Avenue, carrying a firearm. At 9 pm CCTV audio footage recorded a single gunshot. Siaosi then ran from the premises carrying the gun. This is Charge 2, being a prohibited person in possession of a firearm.
86The victim, after being shot, walked to a coin laundry in St Albans where a witness saw he was bleeding and called an ambulance. This is the evidence which is the basis of Charge 1, causing injury intentionally
87The victim was taken to hospital and underwent multiple surgeries for the removal of several shotgun pellets and plastic from a shotgun cartridge, from his chest. He refused to make a statement.
88Hospital notes indicated the injuries were not immediately life-threatening, but a report provided by Dr Schreiber of the Victorian Institute of Forensic Medicine said the shot caused circumstances that were potentially life-threatening as they could have caused whole-body infections by pathogens, including peritonitis, which affected the victim's abdominal wall. There were many other possible bodily impairments that could have been caused by the injury. He was discharged after 11 days.
89The victim died of a drug overdose on 22 June 2023 before any update on his recovery could be obtained. Clearly the injury was likely to have been very serious but the prosecution could not prove this beyond reasonable doubt, because of the hospital notes recording a non-life threatening injury.
90When arrested Siaosi denied any knowledge of the premises where the shooting occurred, but later when shown CCTV images he agreed he had been there and had had a heated exchange with the victim. He stated that he knew nothing about the shooting and made no comment when it was put to him.
Gravity of the offending
91This offending should be classified as being at the top of the range of causing injury intentionally, both on the basis of the injuries and the circumstances in which they were inflicted. It represents revenge-style violence which is never justified in any form, and which places people generally at risk of serious harm. Mr Siaosi shot the victim through a window, having targeted him, but other people who were in the house could have been put at risk. His callous attitude towards the victim after he shot him, leaving him potentially for dead, adds to the seriousness.
Mitigating circumstances.
92Mr Siaosi, I turn now to your personal circumstances, matters that may mitigate sentence, and other matters to be taken into account.
93At the time of the first set of offending, in June and July 2021, you were living in a state of transience, residing with Simon Green for 6 months before the offending, doing odd jobs on the premises instead of paying rent, and making whatever contributions you could towards the bills.
94You were using methylamphetamine heavily at the time, affecting your ability to think clearly, and you consider that your judgment was significantly impaired. While under the influence of drugs you agreed to take part in the offending with Green and Bird on 30 June and 1 July 2021. I heard your plea to those charges on 17 November.
95You were still drug-affected by the time incident three was committed, on the same day as incident two, apparently having used a gram of ice that day. Your instructions are that following the collision you had no money for transport and so the carjacking of Mr Trpeski's car took place.
96The third set of offending, indictment number CR-23-01321, concerns the offending on 3 November 2022. Your instructions are that you were again under the influence of drugs.
97Your other explanation is that emotions were running high because the victim Brown had physically assaulted your partner, to the extent that she was very fearful of him. Of course vigilante-type retribution has no place in a civil society and is to be condemned along with the other forms of violence that might wrongly be considered justifiable.
98It is convenient here to consider your criminal history. You have previous convictions for violent offending, including recklessly causing injury, reckless conduct endangering serious injury and making a threat to kill. Otherwise your record is littered with convictions for driving and drug offences, indicating a lack of regard for the safety and rights of others and the absence of respect for authority.
99You are aged 41, and you have 6 children aged between 5 and 21. You have two new grandchildren you have not yet met. You were born in Samoa and moved to New Zealand with your family aged 4. You migrated to Australia when you were 15. You did not complete secondary school and worked as a shark filleter for 9 years, and then in different warehouses after that.
100You have a strong relationship with your family and as a member of the Samoan community here, involved in the church and in community sport.
101In 2020 you served a 6 month term of imprisonment and on release could not find consistent employment. As a result, you couch-surfed with friends and turned to selling and using drugs. You had not had a problem with drugs before that, and you believe that this led to a downward spiral with increased drug use, and ultimately resulting in this offending.
102Some submissions during the plea hearing centred on the role of self-induced drug taking in terms of a possible justification or mitigating circumstance. The outcome is that drug addiction may explain but not excuse offending, particularly where extensive repeat offending has occurred under the influence of drugs or alcohol. You did not have a lengthy drug habit as many other offenders do, but you have several alcohol-related court appearances over the years, and must have had some idea of the effect of drugs and alcohol in causing emotional responses of the type which facilitated your offending on these occasions.
103The most significant mitigating factor is the fact that you are suffering from terminal cancer. You were diagnosed in April 2023 with Stage-4 ALK lung cancer. This was confirmed by Associate Professor Dowling in a letter dated 6 July 2023. It is a rare cancer, it has metastasised in the neck, and there is no cure. You have been prescribed oral radiation tablets and a recent CT scan showed the cancer was in the same state as previously. The scan also indicated that there are lesions on the brain which are potential metastases, but this has not yet been confirmed. It is likely that you may be more vulnerable to catching COVID-19 in custody, which will add to the burden of imprisonment for you.
104There is no medical opinion as to your likely life expectancy, but it is highly likely to be considerably shortened, meaning that you may not be able to spend your remaining years with your family.
105The clinical psychologist Ms Carla Lechner has recently diagnosed an Adjustment Disorder with depression, which has resulted from your cancer diagnosis and it is unlikely those symptoms will improve. You are fearful of dying in prison and you are experiencing a range of symptoms consistent with Ms Lechner's diagnosis.
106The principles in the case of Verdins, specifically limbs 5 and 6 of that judgment, are enlivened in these circumstances, and I can take into account that prison is more burdensome for you because of this.
107Similarly, the anguish you are very likely to suffer knowing that you will be deported once released from prison, is also to be taken into account in sentencing you. You are not an Australian citizen and at present you are on a special category visa, but that will end and you will face inevitable deportation to New Zealand once you are released from prison. You will have lost the opportunity to remain in Australia and re-build your life and you will be removed from your family. Your only family connection in New Zealand is your son's estranged former partner and your infant grandchild. You have no friends there.
108You have pleaded guilty to all these charges and so three possible trials have been avoided. Although the backlog of cases caused by the pandemic has almost been overcome, these pleas are nonetheless of considerable value to the criminal justice system and that is acknowledged by a discount on your sentence. Importantly you have also spared witnesses from having to give evidence and saved the expense and inconvenience of a trial. I also accept the pleas as indications of remorse to some extent, taking into account that you wish to apologise to Mr Trpeski. On the other hand, you proffered excuses for your behaviour towards Mr Symen which are not consistent with remorse.
109General deterrence has a significant role to play in sentencing for crimes such as these. Protection of the public is of high importance, and the use of a firearm in very aggressive and threatening circumstances in a public place warrants appropriately severe punishment, with firm condemnation by the Court.
110As for specific deterrence, you put yourself first in this offending, apparently with no thought for the threat to others, or their rights to a peaceful life. In your record of interview on 10 November 2022 you spoke of yourself as having lived a good life earning good money, before, in your own words, you made stupid decisions. You said you were the only one of your six siblings all living in Melbourne who has done this, and you would like to be able to push a re-set button and start again. You said you would not do the same things again.
111While this falls short of actual remorse and regret for what you inflicted on your victims, it does disclose a wish to change the way you have been living your life, and that suggests there are some prospects for rehabilitation. In prison you have completed whatever courses were available to you, although being a remand prisoner has excluded you from some courses.
112In considering whatever the future might hold, you wish to take steps to distribute your superannuation to your children, and you intend to remain abstinent from alcohol and drugs. This suggests a positive approach to your rehabilitation to which I can attach some weight.
Sentence
113The crime of aggravated carjacking is a category 1 offence requiring a custodial sentence pursuant to s 5(2G) of the Sentencing Act. Section 10AD of the Sentencing Act additionally requires that a non-parole period of 3 years be fixed unless the Court finds that a special reason exists. Ms Yianoulatos submitted that although a prison sentence is the only available disposition, your medical condition of a terminal rare cancer might, in combination with your inevitable deportation, amount to a special reason. More specifically she submitted that the time you have spent in custody is sufficient, and that any additional time imposed should not be crushing.
114Ms Piggott for the prosecution responded to this submission, noting that your illness appears to be stable at present, and the circumstances do not amount to a special reason.
115I take the view that those matters do not amount to a special reason. In any event, the nature and gravity of the offending does not allow for a non-parole period of less than 3 years.
116This sentencing task is not straightforward as it covers three indictments and several incidents. The principle of totality must come into play as a more significant factor than in many other cases. Your personal circumstances do call for some leniency. In relation to the Brunswick offending, indictment CR-22-00520, and the offending on 1 November with co-accused Atalani and Ata, parity must also be considered, and I have borne that in mind when determining individual sentences.[2]
[2] I note that parity only applies to one charge in the Brunswick offending, the charge of aggravated burglary.
117For example, although you do not have the benefit of youth in your favour, as was the case for the co-accused Atalani, you are facing imprisonment while suffering from a terminal illness, and I place some weight on the certainty of deportation once you have completed your sentence. Those factors provide some degree of balance in weighing parity considerations.
118Your circumstances also enliven the principles in the case of Verdins[3] in relation to limbs 5 and 6 as I indicated previously, and I take into account that those matters will be making your experience of imprisonment more burdensome than for others.
[3] Verdins v R
119Other sentencing principles include the need for the sentence to reflect general and specific deterrence as I mentioned briefly previously. The incidents involving the victims Singh and Trpeski had the potential to place members of the public at risk of harm, and the presence of a firearm in the incidents covered by the three indictments, elevates the seriousness of that offending. The injuries inflicted on the victim Brown by shooting him are particularly serious. Community protection calls for an appropriately severe sentence.
120As for specific deterrence, there are some qualified indications of remorse which suggest a basis for rehabilitation, but regret at being caught and punished looms large as well. That said, you have indicated an intention to change the way you have been living your life and your illness has no doubt played a large part in you reaching that position. Pleading guilty can also be accepted as an indication of remorse, and I take that into account.
121Your pleas of guilty have avoided the need for a trial, which is of value to the criminal justice system and I think I have already made reference to that, and you are entitled to a discount on your sentence for that. You have already been in custody for almost two years, during which the COVID-19 pandemic has continued to play a part in public health generally, and prisoners continue to be exposed to infection. As I noted earlier, your compromised health may mean you are more vulnerable than others to infection, and that may be an additional cause for concern for you while serving your sentence, which I take into account.
122I have set out in a footnote to these remarks what the maximum sentences are for the charges.[4] I am going to now proceed to sentence you, Mr Siaosi.
[4] For aggravated burglary, 25 years; for theft, 10 years; for burglary, 10 years, for being a prohibited person possessing a firearm, 10 years; for unlawful assault, 3 months; for unlicensed driving, 6 months; for handling stolen goods, 15 years; for discharging a firearm, 15 years; for aggravated carjacking, 25 years; for failing to answer Bail, 2 years; for causing injury intentionally, 10 years; for committing an indictable offence while on bail, 3 months.
123I sentence you to the following terms of imprisonment:
124On Indictment No CR-22-00520:
For Charge1, aggravated burglary, 9 months,
For Charge 2, theft, 6 months,
For Charge 3, theft of motor vehicle, 8 months;
For Charge 4, burglary, 6 months;
For Charge 5, theft, 12 months;
For Charge 6, being prohibited person possessing a firearm, 12 months;
For summary Charge 6, unlawful assault, 1 month;
For summary Charge 13, unlicensed driving, 3 months.
125On indictment No CR-23-01315:
For Charge 1, handling stolen goods, 12 months;
For Charge 2, theft, 8 months;
For Charge 3, discharging a firearm, 2 years and 6 months;
For Charge 4 aggravated carjacking, 4 years;
For Charge 5, being a prohibited person possessing a firearm, 12 months;
For summary Charge 6, failing to answer bail, 1 month.
126On Indictment CR-23-01321:
For Charge 1, causing injury intentionally, 4 years;
For Charge 2, being a prohibited person possessing a firearm, 12 months;
For summary Charge 7, committing an indictable offence while on bail, 4 months;
For summary Charge 8, unlicensed driving, 4 months.
127The sentence for Charge 4, on CR -23-01315, aggravated carjacking, is the base sentence for purposes of cumulation.
128The orders for cumulation are as follows:
129Dealing with CR-22-00520 first:
6 months of the sentence for Charge 3,
3 months of each of the sentences for Charges 1 and 4,
2 months of the sentence for summary Charge 13,
And 1 month for each of the sentences for Charges 2, 5, 6, and summary Charge 6.
These cumulation orders result in a total of 18 months.
130On CR-23-01315 cumulation orders are as follows:
12 months of the sentence for Charge 3,
2 months of the sentence for Charge 5,
and 1 month for each of the sentences for Charges 1 and 2, and for summary Charge 6.
These cumulation orders result in a total of 17 months.
131On CR-23-01321 the orders for cumulation are:
12 months of the sentence for Charge 1,
2 months of the sentence for Charge 2,
and 1 month of each of the sentences for summary Charges 7 and 8.
These cumulation orders result in a total of 16 months.
132This results in a global total effective sentence of 8 years and 3 months.
133I fix a period of 4 years which you must serve before being eligible for parole.
134In determining the individual sentences, the head sentence and the non-parole period, I have taken into account your likely medical prognosis in combination with your certain deportation in applying overall appropriate leniency.
135If you had pleaded not guilty to these charges I would have sentenced you to 11 years' imprisonment with a non-parole period of 7 years.
136You have now been in pre-sentence custody for 671 days, not including today. I declare that time to be reckoned as already served, and I shall note that on the court record. [5] Your pre-sentence detention requires a complex calculation, and so I have set it out in a footnote to this paragraph of my sentencing remarks. Of course, I will hear any view to the contrary if need be.
·[5] Arrested 5/7/2021 to 1/4/2022 = 271 days
·Returned to custody 11/11/2011 to 18/1/2023= 69 days
·Sentenced 19/1/2023 to 2 months 60 days; PSD declared (2 months from 19/1/2023 to 18/3/2023, equates to 59 days) therefore only 58 days would be required to serve the sentence imposed.
·Remand recommenced 20/1/2023 to 12/2/2024 (day before sentence)= 389 days
·Total PSD = 729 days plus 2 days balance from period declared=731 days less the 60 days previously declared.
·Result is PSD=671 days to be declared today.
137The prosecution has sought a forfeiture order and I make that order subject to any objection from you, Ms Yianoulatos.
138MS YIANOULATOS: No objection, Your Honour.
139HER HONOUR: I come now to the orders for licence cancellation and disqualification and for Charge 4, for aggravated carjacking, 4 years. Mr Siaosi's licence, if any, will be cancelled and he will be disqualified from obtaining any further licence or permit for that period of time.
140For the charges of unlicenced driving, one of them is Charge 13, I am not sure the other one, but the licence cancellation and disqualification period for each of those will be 1 year. For theft of a motor vehicle it will be 2 years. All to be served concurrently with the 4 year cancellation.
141Subject to what anyone at the Bar table might have to say, Mr Siaosi can be taken now. I am told that Ms Yianoulatos, you would like to speak to Mr Siaosi. So I will leave that link open, Mr Siaosi, so you can speak to Ms Yianoulatos.
142Anything further from the Bar table?
143MS PIGGOTT: No, thank you. And thank you very much, Your Honour, for printing
144out the sentence, it made our task a lot easier.
145HER HONOUR: I hope so, thank you.
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