Director of Public Prosecutions v Siilata

[2020] VCC 741

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00917

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIAN SIILATA

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Siilata
MEDIUM NEUTRAL CITATION:	[2020] VCC 741

REASONS FOR SENTENCE
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Subject: Common assault, intentionally causing injury, armed robbery.
Catchwords:
Legislation Cited: ss.14-15 Sentencing Act 1991 (Vic).
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Ms A. Hogan, Solicitor for the Director of Public Prosecutions
For the Accused	Mr A. G. Waters	Dowling McGregor PTY LTD

HER HONOUR:

1Damian Siilata, you have pleaded guilty to one charge of common assault, one charge of intentionally causing injury and one charge of armed robbery. 

2On 6 June 2017, the franchise owner (“the owner”) of a Cellarbrations liquor store in Cranbourne North and his son, the store manager (“the manager”) were at work.  The owner's wife was also present. 

3At around 9 pm, an unknown offender disguised with a black scarf over his face entered the store.  The franchise owner was suspicious of him and yelled at him to get out.  At the same time, you and another unknown offender entered the store.  You were wearing black scarves over your faces, black clothes and black gloves.  You were armed with a knife. 

4You attacked the owner, punching him to the face and knocking him to the ground (Charge 1).  The manager went to assist his father.  He had armed himself with a cricket bat and hit you several times to the body.  You retaliated, stabbing him four times (Charge 2). While this was occurring, the two co-offenders took some alcohol from the fridge, leaving it on the counter before removing cash from the register.  The amount of money taken is not known (Charge 3). You continued to fight with both victims.  You then all ran out of the store.  The victims ran after you. They were unable to locate you and soon returned. 

5The manger noticed that he was bleeding and realised that he had been stabbed.  He immediately called 000 for assistance.  When an ambulance arrived, he was taken to the Alfred Hospital for treatment.

6Police attended soon after and commenced their investigation.  CCTV footage from the liquor store was obtained and crime scene photographs were taken.  The owner's wife had located your knife on the floor near where you were fighting with her husband and son.  It was a small knife with a silver blade and black handle. 

7A backpack and a small imitation firearm were also located, and these were all provided to the police.  The imitation firearm was apparently not produced during the armed robbery. 

8The manager was stabbed three times to his back and once to his chest.  He suffered injury each time.  No medical evidence has been provided about the location or the depth of the wounds that you caused.  Fortunately, no acute or major soft tissue injury has been identified.  There is no medical evidence of any injury resulting from the assault to the owner.

9Victim impact statements have not been provided and there is no information about any residual difficulties that your conduct has caused.  In a statement made to the police one month later, the manager said that since the armed robbery, he had trouble sleeping, as he was worried about the safety of his parents.  His mother told the police that she was in fear that the offenders would return and felt scared when she saw people wearing “hats and hoodies”.  Their reactions to this event are not surprising.

10This was a premeditated and serious example of the offence of armed robbery.  You attended the liquor store at night in the company of your two co-offenders.  You were in disguise and armed with weapons.  Within moments of entering the premises, you acted violently towards the victims who were vulnerable people at work in their liquor store.  To have been confronted at night by three disguised men, one of whom was brandishing a knife, must have been terrifying. 

11As a result of your aggressive behaviour, the owner was hurt, and his son was in pain and bleeding.  Your conduct was threatening, intimidating and violent.  The victims were, no doubt, very distressed by your actions.  The only explanation you have provided is that you and your friends were looking for a quick way to get some money to buy alcohol. 

12On 11 April 2018, police attended at Port Phillip Prison and conducted a record of interview with you.  As is your right, you replied 'no comment' to the allegations and refused to provide a forensic sample.  A court order was made to provide that sample on 3 May 2018, and the exhibits were examined on
24 October 2018.  Your DNA was located on the backpack, the knife and the imitation firearm.  On 15 February 2019, you were charged on summons with these offences. 

13You have a criminal history.  On 1 February 2017, you appeared in the Melbourne Children's Court for offences including five charges of intentionally causing injury, three charges of unlawful assault and an affray.  You were placed on youth supervision order for nine months without conviction.  The offences that are now before the court were committed four months after this order was imposed.  You have several subsequent convictions imposed between 31 July 2017 and 3 December 2019, and are currently in custody, undergoing sentence. 

14On 31 July 2017, you were convicted in the Melbourne Children's Court of offences, including robbery, affray and four charges of recklessly causing injury and were ordered to be detained in a youth justice centre, as recorded on the LEAP extract, for three months and 42 days.  The breach of the youth supervision order was also proven and you were re-sentenced to youth justice detention. 

15On 17 October 2017, you were sentenced to an aggregate term of imprisonment of three years and a non-parole period of 20 months at the Dandenong Magistrates' Court.  This sentence was in respect of charges, including two charges of intentionally causing injury, reckless conduct endangering life and the possession of a prohibited weapon.  You were transferred into adult custody when this sentence was imposed. 

16On 23 August 2018, you pleaded guilty in the Melbourne Supreme Court to the offence of aggravated carjacking.  I have read the sentence imposed by His Honour Justice Coghlan and will briefly summaries the offence. 

17The aggravated carjacking was committed on 2 July 2017.  You and your four co-accused intended to commit an armed robbery on an IGA in West Brunswick.  You decided to carjack the victim's car and to use it in the armed robbery.  None of you knew how to start a car without a key so you needed one with an occupant.  When you observed the victim in his car, you all agreed to go ahead. 

18Your plan went to action at around 9.45 pm, and one co-offender tried to pull the victim from the driver's seat.  You sat in the front passenger seat of the car.  Two co-offenders got into the back seat and pulled the driver back towards them, as the victim could not be removed from the car.  One co-offender then sat in the driver's seat.  The first co-offender then got into the back seat, as the victim resisted and struggled. Eventually, the victim was dragged into the back seat and was face down.  You and your co-accused attempted to restrain him.  One of your co-offenders stabbed the victim in the neck.  He was bleeding heavily, and another co-accused put him in a choke hold, to render him unconscious. 

19The driver started the car and drove into a reserve in Brunswick at 9.48 pm.  The victim was then removed from the car and left under a tree, until his body was discovered the next morning.  The car was driven away and abandoned in Coburg.  You took the victim's phone. 

20This was a most serious example of carjacking.  The subsequent death of the victim did not form part of your offending, as it was not part of your agreement to attack the victim with the knife.  You were convicted and sentenced to seven years' imprisonment, 18 months of that sentence to be served concurrently with the sentence imposed on 17 October 2017.  His Honour fixed a new non-parole period of six years, to commence from 17 October 2017. 

21You unsuccessfully appealed against the sentence.  That decision was handed down on 28 November 2019 and had the effect of delaying your plea hearing in this matter. 

22On 3 December 2019, you were convicted and sentenced at the Melbourne Magistrates' Court to an aggregate of 14 months' imprisonment for three charges of intentionally causing injury.  These offences occurred on
25 July 2018 at Port Phillip Prison, where you were housed at the time. 

23You assaulted 3 prison officers. You punched one to the face, assaulted another with numerous kicks and punches to the head, chest and stomach area, and punched the third victim six times, knocking him to the ground.  The injuries you inflicted included cuts to the lip requiring stitches, bruising and swelling, as well as ligament damage to one officer's shoulder.  All three victims suffered from concussion. 

24This sentence was directed to be served cumulatively upon the sentence that you were already undergoing. In accordance with s.15 of the Sentencing Act, that sentence was suspended, so that the aggregate sentence without a parole period imposed on 3 December 2019 would be served first.  The non-parole period of the earlier sentence will resume at the expiration of that sentence. Finally, the balance of the sentence after the non-parole period is to be served unless and until you are released on parole.   

25The total effective sentence that you are currently serving is nine years and eight months, with a non-parole period of seven years and two months.  The period of imprisonment commenced on 17 October 2017, and the current sentence expires on 17 June 2026.  Your earliest release date, if eligible for parole, is on 17 December 2024. 

26The principle of totality is an important sentencing principle here. I am required, pursuant to s.14 of the Sentencing Act, to fix a new non-parole period.  I must consider the total sentence that would have been imposed, had all the offences been dealt with at the same time.  It is conceded that a term of imprisonment is the only appropriate disposition for these offences.  The overall term of imprisonment should be an appropriate measure of all the criminality involved. 

27A degree of cumulation is inevitable, as this offending is distinct from the earlier hearings with different victims.  The defence submission is that there should be substantial concurrency in the sentence imposed, in order to arrive at a totally proportionate sentence.  The prosecution agrees with that submissions, saying that some slight cumulation is required, but that in light of your youth, your guilty plea and your current circumstances, the court must take care not to impose a crushing sentence. 

28There has been some delay in these matters coming before the court.  You were interviewed by police on 11 April 2018, and were not charged until
15 February 2019, with a filing hearing listed on 14 March 2019. 

29It is accepted by the prosecution that your plea of guilty was entered at an early stage, at the committal case conference on 13 May 2019.  This was prior to the compilation of a full brief of evidence. 

30I am satisfied that you are entitled to a full benefit for your plea of guilty.  It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  You have spared the victims from giving evidence in court, so facilitating the efficient administration of justice, and are entitled to a benefit for that. 

31In the current circumstances, where all trials have been suspended, your plea of guilty has resulted in the matter being concluded efficiently.  I take that into account.

32Your plea was first listed on 5 September 2019.  It was adjourned and eventually heard on 13 May 2020.  The delay between the time you were interviewed by police and the imposition of your sentence is more than two years.  Even though you were not cooperative at the outset, the uncertainty of not knowing your eventual date of release has been a source of anxiety for you, and I take that into account.  You have no other matters outstanding. 

33You committed these offences at the age of 18, and you are now 21 years old.  In light of the seriousness of these offences, the mitigating effect of age and your relative youth is reduced, although not extinguished.  These factors are still relevant when considering your prospects of rehabilitation.  Denunciation, general and specific deterrence must have a greater emphasis, however, as the seriousness of the offending increases. 

34You were born in Samoa on 2 April 1999.  You lived with your mother and her parents before coming to Australia in 2011 with your older brother, uncle and aunt. 

35You first resided in Mildura, where you attended primary school and commenced your secondary education.  Your family moved to the northern suburbs of Melbourne and you commenced Year 10 at the Hume Central Secondary College in 2015.  You became disinterested in school, spending more time with other disengaged peers than concentrating on your education.  This created tension within your family.  You left that school after six months.

36At the time of this offending, you were subject to the youth supervision order.  Part of that order required you to consult with Mr Michael Bilyk, psychologist, to address factors relating to your risk of violence.  You attended 12 consultations with him between 18 August 2016 and 2 May 2017, while on youth justice remand.  You did not engage with him when in the community. 

37Your violent behaviour commenced at the age of 16 years and was linked to your frequent use of alcohol. 

38In a report dated 14 October 2017, Mr Bilyk noted that you were struggling to adjust to life in Australia.  You reported feeling isolated, fundamentally lonely and disconnected from meaningful pursuits.  The sense of family connection and community cohesion that you experienced in Samoa was absent in Australia.  Your lifestyle became unstructured and you were often absent from the family home. 

39In Mr Bilyk's opinion, the deterioration of close attachments and supports upon your immigration to Australia was a catalyst for your association with other disconnected young members of the community, and your commencing regular use of alcohol.  It was in this context that your criminal offending occurred.

40When you first went into adult custody, you did not maintain contact with your family.  After assaulting the Corrections officers in July 2018, you were moved to a management unit at Barwon Prison.  You remained there for at least 12 months, being confined for 21 hours per day.  You have not had any further conflict with prison officers.  You commenced education while secured in your cell, exercising with another prisoner in a secure yard when permitted.

41You have now returned to the mainstream prison population.  You have undertaken an educational program addressing substance abuse, as well as an industrial cleaning and floor polishing program.  You are also studying English.  Contact with your family has resumed and until the recent restrictions were imposed by Corrections, they visited you regularly.  You maintain telephone contact with them. 

42At the request of your solicitor, Mr Bilyk provided a supplementary report, dated 28 October 2019.  In consultation, you told him that you have realised that the best way to stay out of trouble is to engage in exercise, education, employment and further training while in custody.  You expressed a willingness to participate in appropriate treatment programs.  You regard your routine as a critical factor in avoiding the frustration that accompanies your life in custody.

43In Mr Bilyk's opinion, your attempts to learn how to anticipate and overcome obstacles in the future by considering prosocial alternatives, demonstrate a level of reflection and increased consequential thinking.  Your motivation to accept and engage with appropriate supports is encouraging.  In my view, your developing insight and increased motivation to rehabilitate, in the context of regaining the support of your family are relevant to your prospects of rehabilitation.  I accept that they have improved and are now more positive that they were found to be in the past. 

44You are not an Australian citizen, having joint Samoan and New Zealand citizenship.  At the conclusion of your imprisonment, you will be deported and are likely to reside with family living in New Zealand, whom you have not met.  You are still a young man and any reconnection with family members will be helpful for you and hopefully encourage a more productive future. 

45I accept that the prospect of deportation is an added burden while you are in custody.  You have lost the opportunity to make a life in Australia and will leave behind your aunt and uncle, to whom you refer as 'mum' and 'dad'; that is an added punishment.

46I take into account that measures taken by Corrections to deal with the COVID-19 pandemic may add to your hardship as a prisoner, particularly as you are 21 years of age and undergoing a lengthy term of imprisonment.  The prosecution concedes as much.

47I am aware that you have been in 23-hour lockdown since 6 April 2020.  I do not provide any sentencing benefit for this.  As I understand it, when this occurs, you may receive sentence reductions as a result of the administrative decision of the prison authorities. 

48It is clear, however, that the current time will be more stressful for you than it would be if you were in the community.  This is not only due to your personal position of confinement, but also the hardship you may feel being absent from your family at this difficult time. 

49Further, the emotional impact of being unable to have any personal visits from your family for the foreseeable future will increase the burden of imprisonment.  Treatment and educational programs have also been suspended indefinitely, although I am told that you are able to continue with your English studies.

50I take into account the maximum penalty for these offences.  I have considered the cases to which I was referred by your counsel, and current sentencing practices when determining sentence. 

51The principle of general deterrence is an important sentencing consideration, due to the prevalence of “soft target” armed robberies in our community.  Specific deterrence is also relevant in light of your prior convictions.  The protection of the community, denunciation and just punishment must all feature in the sentencing mix. 

52Clearly, a term of imprisonment is the only appropriate disposition for these offences.  The principle of totality needs to be considered overall, as well as in light of this being a course of criminal conduct.  I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct. 

53Taken into account your youth, your guilty plea and the sensible concession by the prosecutor, I agree that the totality principle requires only moderate cumulation, so as to avoid imposing a crushing sentence.  Accordingly, I have moderated the sentence that I have imposed and the orders for cumulation in order to reflect these matters. 

54I will now impose sentence. 

55Charge 1, common assault, you are convicted and sentenced to six months' imprisonment.

56Charge 2, intentionally causing injury, you are convicted and sentenced to 18 months' imprisonment.

57Charge 3, armed robbery, you are convicted and sentenced to four years' and six months' imprisonment.

58I direct that Charge 3 be the base sentence, two months from Charge 1 and four months from Charge 2 are to be cumulative upon the base sentence and upon each other.  That is a total effective sentence of five years' imprisonment. 

59I direct that one year of this sentence is to be served cumulatively upon the sentence imposed on 23 August 2018, which you are currently undergoing.  That results in a new head sentence of 10 years and eight months.  I set a new single non-parole period of seven years and six months, commencing on
17 October 2017. 

60The s.6AAA declaration: But for your plea of guilty, I would have imposed a sentence of six years and three months and directed that two years be cumulative on the sentence imposed on 23 August 2018, resulting in a total effective sentence of 11 years and eight months, with a non-parole period of eight years and six months. 

61There is an application for disposal of the knife, backpack and imitation firearm.  That order is not opposed, and I make that order.  Is there anything further, Mr Raimondo?

62MR RAIMONDO:  No, Your Honour.

63HER HONOUR:  Mr Waters, do you have anything further?

64MR WATERS:  No, Your Honour.

65HER HONOUR:  All right.  Thank you. I will leave the Bench and give Mr Waters an opportunity to discuss the sentence with his client. 

66MR WATERS:  Thank you, Your Honour.

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