Director of Public Prosecutions v Siisii
[2023] VCC 1190
•12 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02018
CR-22-02019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOSES SIISII |
| AND |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IVAN LOLOGA |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2023 | |
DATE OF SENTENCE: | 12 July 2023 | |
CASE MAY BE CITED AS: | DPP v Siisii & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1190 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Co-accused – Parity – Basis for offending to take money or drugs – Elements of crude pre-planning – Incident of short but frightening and violent duration
Siisii - Home Invasion (1), Intentionally cause injury(1) and Theft (1) – Lesser role in offending reflected by fewer charges faced - Youthful offender – Not known to victims - Relevant criminal history but lengthier than co-accused Lologa – Offences committed in breach of court orders already in place – History of drug and alcohol abuse from young age
Lologa - Home invasion (1), intentionally causing injury (2), Theft (1), Damage property (1) and Commit indictable offence whilst on bail (summary offence) (1) – Offending exceeds that committed by co-accused Siisii playing more serious role - Known to victims - Youthful offender – Relevant criminal history – Offences committed in breach of court orders already in place – History of drug and alcohol abuse from young age
Sentence: Siisii – Convicted and Total Effective Sentence of 3 years’ imprisonment with non-parole period of 18 months’ imprisonment – 483 days’ pre-sentence detention declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration
Lologa - Convicted and Total Effective Sentence of 3 years 9 months’ imprisonment with non-parole period of 24 months’ imprisonment – 426 days’ pre-sentence detention declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration – Ancillary order Disposal order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Paganis (Plea) Ms G. Hersch (Sentence) | Office of Public Prosecutions |
| For the Accused (Siisii) For the Accused (Lologa) | Mr J. Karitzis Mr S. Ranjit | Papa Hughes Lawyers Emma Turnbull Lawyers |
HER HONOUR:
1Moses Siisii, you have pleaded guilty to one charge of home invasion, one charge of intentionally causing injury and one charge of theft.
2Ivan Lologa, you have pleaded guilty to one charge of home invasion, two charges of intentionally causing injury, one charge of common assault, one charge of theft and one charge damaging property. You have also pleaded guilty to one charge of committing an indictable offence whilst on bail, a summary offence which has been uplifted to this Court.
3The maximum penalty for home invasion is 25 years' imprisonment, for intentionally causing injury, theft, and intentionally damaging property – 10 years' imprisonment, for common law assault – 5 years' imprisonment, and for the summary offence of committing an indictable offence whilst on bail – 3 months' imprisonment.
4I must have regard to the maximum penalties in sentencing each of you as these reflect the seriousness with which Parliament regards the relevant offences.
5Further, home invasion is a Category 2 offence which means that the court must impose a custodial order, not being a combination sentence of imprisonment and a Community Corrections Order unless a relevant exception applies. Neither of you submitted that a relevant exception applied in your respective cases.
6You, Moses Siisii, were 18 at the time of the offending and living at an address in Roxburgh Park.
7You, Ivan Lologa, were 20 years old at the time of the offending and living at an address in Wollert.
8A third accused, NJ, was 16 years old at the time of the offending. He was sentenced in the Melbourne Children's Court.
9The first victim in this matter is Jason Cottrell who was 47 years old at the time of the offending. He was in a relationship with the second victim, Natasha Carpenter, who was 43 years old at that time. They were residing at an address in Craigieburn when the offending occurred. The third victim is Jordan Carpenter, also known as Jordan Conci. He is the son of Natasha Carpenter and was 20 at the time of the offending.
10Ms Carpenter has two other children, Bailee, who was nine at the time, and Willow, who was eight. Both children also lived with Ms Carpenter at the Craigieburn address. They were present during the offending as they had been sleeping on the couch in the lounge room at the relevant time.
11On Friday, 11 March 2022 at about 4:00 am, all three primary victims were at home. Jordan Carpenter was in his bedroom directly across the hallway from the laundry. His mother was in her room getting ready to go to bed while Mr Cottrell was asleep in the master bedroom. At about 4:16 am, you and your co‑offender attended the victims' premises. You, Mr Lologa, and you, Mr Siisii, are seen on a delayed activation of a doorbell camera at the premises, walking west along Kingswood Drive.
12Each of you pushed a park bench against the western side fence along Northern Crescent to gain access to the back yard of the victims' premises. You forced open the laundry door of the house and entered. Upon entry, you armed yourselves with weapons with you, Mr Lologa, arming yourself with a dumbbell bar and you, Mr Siisii, with a baseball bat. NJ was unarmed upon entry. However, he obtained a knife from within the premises once inside. Your entry into the premises gives rise to Charge 1, home invasion.
13The prosecution accepts that the basis upon which you, Mr Lologa, and you, Mr Siisii, entered the victims' house was to take money or drugs.
14The charge of home invasion is put on the basis of an intent to steal and persons being present at the time that the offences were committed. After hearing a loud bang, Mr Carpenter went to investigate. Each of you then charged at him. Mr Carpenter retreated into his bedroom and grabbed a baseball bat in a bid to defend himself. You, Mr Siisii, and you, Mr Lologa, then assaulted Mr Carpenter with the baseball bat and the dumbbell bar, leaving him concussed with a laceration to his head. This gives rise to Charge 2, intentionally causing injury.
15You then demanded keys to the safe and keys to the car. The assault was witnessed by both Bailee and Willow Carpenter and in part by Natasha Carpenter.
16You, Mr Siisii, and you, Mr Lologa, disarmed Mr Carpenter whilst he tried to defend himself on the ground, taking possession of the baseball bat. You, Mr Lologa, demanded that NJ get involved, directing him to pick up a kitchen steak knife from Mr Carpenter's bedroom benchtop.
17Mr Carpenter recognised you, Mr Lologa, and NJ through previous associations, features of your appearance and your voices. Mr Carpenter had known you, Mr Lologa, for a long time, as you had previously been at his house as a guest.
18When Natasha Carpenter witnessed the assault occurring down the hallway, she retreated into her bedroom where she tried to hold the bedroom door shut. However, you forced the bedroom door open.
19You, Mr Lologa, then rushed into the bedroom where Mr Cottrell was asleep, striking him to the head multiple times with the metal dumbbell bar. Mr Cottrell attempted to defend the strike to his head with his right arm which was broken as a result. Mr Cottrell then fell off the bed and onto the ground as you, Mr Lologa, continued to strike him. This gives rise to Charge 3, intentionally causing injury, which applies to you alone, Mr Lologa.
20Mr Cottrell then ran into the en suite bathroom, locking himself in there for protection.
21You, Mr Lologa, then made demands to Ms Carpenter for keys to the safe and to the car, referring to Mr Cottrell's Volkswagen Golf. NJ then held a knife to Natasha Carpenter's throat, demanding the keys to the safe and the car. Ms Carpenter told you the location of the keys. However, you, Mr Lologa, then struck Ms Carpenter to the face with the metal dumbbell bar, causing a laceration above her right eye. This gives rise to Charge 4 which relates to you alone, Mr Lologa – a charge of common assault.
22Mr Siisii, you, then grabbed the keys to Mr Cottrell's car from the desk. You, Mr Lologa, and you, Mr Siisii, then left the premises from the front door, and got into the vehicle. Camera footage showed you, Mr Siisii, sitting in the driver's side of the car. NJ is not captured on the footage and is believed to have fled out the back door of the premises.
23You, Mr Siisii, then started the car. You, Mr Lologa, then got Mr Siisii to move over to the passenger seat, and you, Mr Lologa got into the driver's seat. You, Mr Lologa, then reverse the car onto the driveway and drove away. This gives rise to the charge of theft which is Charge 3 for you, Mr Siisii, and Charge 5 for you, Mr Lologa.
24Ms Carpenter then called Triple 0 requesting police and ambulance assistance.
25Jordan Carpenter refused to provide a police statement. He had sustained a superficial wound to the right frontal region of his head which was said in the prosecution opening to be 'amenable to glue, bogginess and mild tenderness'. (Para 45, Amended Crown Opening dated 13 June 2023)
26Ms Carpenter was also taken to the Northern Hospital and provided a statement to police. She sustained a 2 centimetre laceration to the right superior lateral orbit, down to frontal muscle, surrounding bruising, minimal swelling and had suffered bruising to the lateral mid-thigh and left ankle as well as tenderness.
27Mr Cottrell was taken to the Royal Melbourne Hospital where he was treated for his injuries. He sustained a right arm fracture and three lacerations to his head. The lacerations were repaired with 20 stitches and a cast was placed on his right arm above his elbow.
28A few days later, on 15 March 2022, Mr Cottrell re-attended the Royal Melbourne Hospital with his medical records indicating he had suffered a head injury but could not recall the mechanism. He said it could have been a tree that fell on his head or it could have been an assault. Records also reveal bleeding and bruising on the right parietal area which was cleaned and dressed.
29On 23 March, Cottrell re-attended Royal Melbourne Hospital where his medical records revealed sutures to the head lacerations and right isolated ulnar fracture and pain in limb, site unspecified.
30The summary of prosecution opening sets out the various pieces of evidence which were obtained and which implicated each of you. Subsequently, each of you were arrested. You, Mr Lologa, were too substance affected to engage in conversation with police at the police station. You kicked the interview room door multiple times and then began pacing the interview room becoming more agitated. You again kicked the door multiple times, causing damage to the door. This gives rise to Charge 6, intentionally damaging property. Police custody officers attended the interview room. You became aggressive towards them, resulting in you being restrained and being moved to a holding cell to prevent any more damage. You were deemed unfit for interview as you were a safety risk to police officers.
31At the time of your offending, Mr Lologa, you were on bail for unrelated matters, giving rise to related summary offence of committing an indictable offence whilst on bail.
32In each of your cases, your offending is most serious and deserving of a punishment which is just in all of the relevant circumstances. Further, in each of your cases, your offending conduct must be denounced.
33Each of you behaved in a most outrageous manner, breaking into the victims' home in the dead of night, in numbers, violating the sanctuary to which the victims were entitled. You broke in at a time when it might well be expected that the victims were asleep and therefore in a more vulnerable position, although, as it happened, two of the victims were still awake.
34It is an aggravating feature of your offending that some of your offending took place in the presence of young children, albeit that it is accepted that it is not entirely clear as to the extent to which they witnessed your offending. Also, there was a level of pre-planning in respect of the attack, albeit somewhat crude. The attack on Jordan Carpenter with the baseball bat and dumbbell bar, which left him concussed and with a laceration to his head, was brutal, and your behaviour, Mr Lologa, in relation to Mr Cottrell, who was asleep when you first attacked him, was utterly ruthless and cruel. Further, notwithstanding Ms Carpenter's cooperation in telling you where the keys to the safe and car were, you saw fit to strike her to the face with a metal dumbbell bar – this was entirely gratuitous and nasty. In particular, Mr Lologa, your behaviour on the night in question was deplorable.
35I have also factored in that the incident was of relatively short duration, for what that is worth, in view of the most frightening nature of it but I have taken that into account. Further, I have borne in mind that, according to the learned prosecutor, the premises were being used by one of the household members at least to store drugs. I am not aware as to the state of knowledge of the other occupants about this. In any event, the fact that drugs were being stored at the house does not mean that the home invasion was any the less frightening or that the inhabitants were not entitled to the sanctity of their own home. In no way am I victim blaming. However, it is a relevant matter, in that, housing drugs presents a greater risk to the occupants being subjected to offending such as yours. One of the victims had knowingly taken on that risk for the entire household, which is most regrettable.
36In sentencing you I take into account the victim impact statements in this matter:
37Mr Cottrell said that as a result of the criminal offending, his general feelings of wellbeing and enjoyment of life were now terrible. He said that the crime had taken its toll on his relationship with Ms Carpenter, causing a good deal of conflict between then, and that he no longer felt safe to return to her home. He said that the 'crimes' had caused him to lose his job, with the loss of his mentor who had been helping him get through life in a positive way. He experienced a range of emotions due to the criminal offending which has mostly been anger and fear. He said that he had been diagnosed with PTSD and suffered from anxiety due to the crime. He had been placed on a mental health care plan and was still trying to sort medications out to work out the most suitable for his current condition. He has experienced sleeplessness, and anxiety about going to sleep as he was attacked when he was asleep. He said that he felt it would take a very long time to recover from the trauma, if at all. He said that his disrupted sleep patterns had now left him highly strung each day and he felt hypervigilant, always looking over his shoulder. He said that the trauma and injury that he experienced from the offending had changed his life for the foreseeable future and he did not believe he could ever be the same person again. He said that he had been left with a disrupted sense of personal and community safety.
38In relation to his physical injuries, he said that he was unable to perform everyday tasks after the offending. He said that this was still the case as his arm had not healed properly and he still experienced pain because of this and lack of full movement. He said he was unable to perform tasks at work because of his physical condition, then lost his job. He had not been able to work since the crime because of the injuries he had sustained and was not sure how long this would continue. He said he had a broken arm, his head was split open, and he had numerous other injuries due to the offending. He requires ongoing medical treatment for his arm. He had been told that his arm would not return to 100 per cent the way it was before and would remain deformed. He said there was also a deformation on his skull where his head was split open. He required 28 stitches to repair the damage which did not heal properly and resulted in a haematoma which had decreased but he said this would never completely disappear. He spoke of the financial impact he had suffered due to his loss of work and ability to obtain further work. He said he had to go to Centrelink which had dramatically impacted his financial situation. He has had to go for a trucking licence to help him find work in the future as he was no longer able to perform the physical tasks he had previously and could not remain living off Centrelink for much longer. He spoke of the damage to Natasha's house and of his need to take public transport to medical check-ups and the cost of multiple medications. He said he had lost over $60,000 because of the offending.
39He said that the offending had had a devastating effect on his family and social life and that his sense of stability in the family had been disrupted. He said before the offending everything was good. He still did not feel safe all the time and now stayed home most of the time with very few outings. He feels somewhat isolated and only sees Natasha or his mother, rather than any of his friends.
40Ms Carpenter said that the offending had caused a good deal of emotion and was very draining. She had nightmares and anxiety because of the offending, saying that the offending was a traumatic experience. She finds it hard to sleep at night and sometimes fears going to bed for fear of having nightmares. She is so exhausted sometimes that she cannot help but fall asleep, only waking up from nightmares which leaves her not wanting to return to sleep. She spoke of flashbacks of your offending which makes her feel frightened in her house and she hates being there. She does not feel safe in the house and is hypervigilant. She spoke of the difficulty of getting up every day and performing her role as a mother, as she is constantly emotionally and physically drained.
41She had commenced counselling and said that she had been diagnosed by her GP as having PTSD. She said that her personality had changed and she no longer laughed or smiled much anymore. Your offending impacted her ability to socialise as she just wanted to stay home all the time even though she did not feel safe at home. She said that her little girls were now 10 and eight and spoke of her guilt in not being more protective of them when you broke in, due to her state of shock. She found it difficult to explain it to her eight year old who asked why she had not come to check on them. She said that her 10 year old had autism and she was badly affected by the incident. She said that she now gets so upset and emotional that she no longer wishes to get ready for school. She said that her behaviour had deteriorated and she did not wish to be separated from her as she was so frightened. She said that her 10 year old had been disengaged at school since the incident. She said her girls had been traumatised by what happened and slept with her most nights. They were most reluctant to return to the house after the incident. She said that she felt angry and hurt as to how your offending had impacted on her children.
42She also spoke of the toll that your offending had taken on her relationship with Mr Cottrell. She said that she had been looking for work before the offending, however, she was not in any state at present to obtain work. She spoke of trying to find another house to move into but of her difficulties in doing this due to her being so tired. She said that she had been receiving Centrelink and had to get a medical certificate to obtain an exemption so she did not have to look for work. She was given a three month exemption. However, she did not think she would be in a position to look for work within that three month period. She said that she is most anxious to move away from the area where the offending occurred and make a fresh start. She would do counselling and what she needed to and hoped to be able to put the incident behind her.
43Mr Lologa and Mr Siisii, these are the very real effects that your offending has had upon the victims in this matter. I take the impact into account when sentencing you, and I am mindful of the fact that it was you alone, Mr Lologa, who caused the injury to Mr Cottrell's arm, and you alone who assaulted Ms Carpenter, when taking the Victim Impact Statements into account. However, each of you caused a good deal of trauma, fear and harm in respect of the offences you committed together.
44Each of you have criminal histories and in each case they have a good deal of relevance to the offending now before me.
45You, Mr Siisii, have a criminal history which commences in the Melbourne Children's Court on 20 October 2017, where you were dealt with for one charge of attempted armed robbery, two charges of recklessly causing injury, one charge of armed robbery, one charge of unlawful assault and one charge of committing indictable offence whilst on bail. Without conviction the matters were adjourned for 12 months upon you entering into a good behaviour undertaking.
46On 23 May 2019, you were dealt with for shop theft, two charges of unlawful assault, three charges of theft, one charge of resist emergency worker whilst on duty and one charge of committing an indictable offence whilst on bail. Without conviction you were placed on probation for 9 months.
47On 25 February 2020, in the Broadmeadows Children's Court you were dealt with for one charge of attempted robbery, three charges of theft, three charges of recklessly causing injury, seven charges of committing indictable offences whilst on bail, three charges of shop theft, three charges of unlawful assault, one charge each of assault police officer, trespassing, burglary, intentionally damaging property, possess cannabis and possessing a controlled weapon without excuse. Without conviction you were released on a Youth Supervision Order for a period of 12 months. On 12 May 2020, the probation order was found to be breached with the notation that this charge was proven.
48On 3 June 2020 in the Broadmeadows Children's Court, you were dealt with for two charges of theft, one charge of aggravated burglary – person present, one charge of assault police, one charge of resist police, and one charge of theft of a motor vehicle. You were convicted and released on a Youth Attendance Order for a period of 9 months. You were ordered to participate in a particular project at Northern Metro Youth Justice Unit and in addition to observing core conditions, you were required to engage in offending specific programs.
49On 3 June 2020 in the Broadmeadows Children's Court, a charge of breaching the Youth Supervision Order previously imposed was proven.
50On 22 December 2020 in the Broadmeadows Children's Court, you were dealt with for two charges of robbery, one charge of shop theft, two charges of theft, four charges of unlawful assault, one charge each of resist emergency worker on duty, burglary, aggravated burglary – person present, a further charge of theft of a motor vehicle, negligently dealing with the proceeds of crime, going equipped to steal or cheat, driving whilst authorisation suspended, trespass, armed robbery and three charges of committing an indictable offence whilst on bail. On that day you were also dealt with again for matters for which you previously received a Youth Attendance Order and a Youth Supervision Order. It appears that the overall total effective sentence in relation to all the matters was 9 months' detention in a Youth Justice Centre.
51On 9 July 2021 in the Melbourne Children's Court, you were convicted of affray, committing an indictable offence whilst on bail, assault an emergency worker whilst on duty, four charges of unlawful assault, common law assault, theft, possess prohibited weapons without exemption or approval. You were ordered to be detained in a Youth Justice Centre for an aggregate term of 90 days with a declaration that that period had already been served.
52On 19 December 2021 in the Melbourne Magistrates' Court, you were dealt with for theft of a motor vehicle, recklessly causing injury, committing indictable offence whilst on bail and contravening a conduct condition of bail. Without conviction you were ordered to undergo a 12 month Community Corrections Order, which was ordered to be undertaken with supervision and with various treatment and rehabilitation conditions including mental health and drug treatment as well as offending behaviour programs. You were also ordered to undertake 100 hours of unpaid community work.
53On 10 February 2022 at the Heidelberg Children's Court, you were dealt with for robbery, theft, three charges of committing an indictable offence whilst on bail, theft from a motor vehicle, intentionally destroying property, possessing a drug of dependence being a prescription drug, two charges of handling/receiving/retention of stolen goods, one charge each of dealing with property suspected to be proceeds of crime, unlicensed driving, attempted theft from a motor vehicle, two charges of possess cannabis and a further charge of possessing a prescription drug of dependence. Without conviction you were granted a 12 month good behaviour bond with a condition that you were to comply with the Community Corrections Order previously imposed.
54It is noteworthy that you committed the offences for which I now sentence you only about four weeks later.
55You, Mr Lologa, in terms of your criminal history, you were dealt with at the Broadmeadows Children’s Court on 21 August 2018 for intentionally causing injury, two charges of affray, one charge each of trespass, attempted robbery, unlawful assault, two charges of committing an indictable offence whilst on bail, one charge each of recklessly causing injury, resist police officer and possess controlled weapon within the vicinity of licensed premises. Without conviction you were released on a Youth Supervision Order for 12 months. On 12 June 2019 at the Melbourne Children's Court you were dealt with for breaching the Youth Supervision Order previously imposed. The breach was found proven and the Youth Supervision Order was cancelled.
56The offences which breached the Supervision Order were as follows:
57Four charges of robbery, one charge of make threat to kill, two charges of committing an indictable offence whilst on bail, two charges of attempted robbery, one charge each of theft from a motor vehicle, theft of a motor vehicle, recklessly causing serious injury, committing an indictable offence whilst on bail, attempting to commit an indictable offence and possessing cannabis. Overall, you were sentenced to a total effective term of 20 months' detention in a Youth Justice Centre.
58On 1 December 2021, you were convicted of one charge of assault police officer, three charges of criminal damage, two charges of theft, four charges of obtaining property by deception, one charge each of attempting to obtain property by deception, committing an indictable offence whilst on bail, two charges of contravening a conduct condition of bail, one charge of throw missile to injure/danger/damage property, one charge of aggravated burglary – person present, two charges of trespass, one charge of refusing or failing to comply with a direction or requirement made by an authorised officer, one charge of unlawful assault, one charge of possessing cartridge ammunition without a licence or permit and dealing with property suspected to be proceeds of crime. You were convicted and ordered to undertake an 18 month Community Corrections Order with 100 hours unpaid community work with treatment and rehabilitative conditions, including a direction that you be referred urgently to forensic intervention services and an allowance that up to 50 hours of successful completion of the treatment and rehabilitation component could be credited to the unpaid community work component.
59Mr Siisii, although you have a lengthier criminal history than Mr Lologa, you, Mr Lologa, have also committed a number of serious offences. Each of you have committed a number of violent offences in the past. In each of your cases, your criminal histories give me considerable cause for concern when assessing your prospects of rehabilitation.
60At the time of the offending before me, you, Mr Lologa were subject to the 18 month Community Corrections Order which had been imposed on 1 December 2021. Therefore, the offences before me breach the Community Corrections Order. You have previously been sentenced in relation to the breach.
61At the time of the offences, Mr Siisii, you were subject to a 12 month Community Corrections Order imposed on 9 December 2021 as well as a 12 month good behaviour bond imposed on 10 February 2022. Therefore, the offences before me breach both of these dispositions.
62It was put on your behalf, Mr Siisii that you did not know any of the house occupants in relation to the offending before me, and that you acted out of sone misguided sense of loyalty; that you made a foolhardy decision which ought be seen in the context of your youthfulness and immaturity. I must say that the fact that you behaved as you did toward people you did not know is most concerning, and does nothing to detract from your moral culpability, which I find, is high. Having said this, I have also factored in your youthfulness and immaturity insofar as I can. It is to be hoped that you do develop into someone who possesses an ability to engage in more consequential thinking in respect of your decision making.
63In assessing the seriousness of your offending, Mr Lologa, and moral culpability, I have factored in that you directed NJ, who was only 16 years old at the time, to get involved by collecting a knife. Again, I find that your moral culpability is high.
64I now turn to your respective backgrounds.
65You, Mr Siisii, are now 19 years old and are the oldest of four children in your family. You have two younger sisters who are 17 and 13 and a younger brother who is 14. I was told that you have a good relationship with each of your siblings.
66Your parents are of Samoan heritage, migrating to Australia in 2009. You have a positive relationship with your parents. Your father is unemployed due to suffering from Parkinson's disease. I was told that, as the oldest child, you felt the pressures of expectation and obligation upon you to try and support the family because of your father's ailments. Your mother also has health problems but continues to work in retail to support the family.
67I was told that you struggled at school and you frequently engaged in disruptive behaviour. You attended three different primary schools due to receiving a number of suspensions because you became involved in fights with others, due to an inability to properly regulate your emotions and feelings of frustration. You attended three different secondary schools. The first two were mainstream schools and the last one allowed for a flexible learning environment. You reached Year 9 but found it difficult to process information that you were being taught and you became overwhelmed in maths classes. You would then become frustrated and disengaged, eventually skipping school to 'have a good time'.
68You started drinking alcohol when you were only 11. You drank a cask of wine with friends and would drink two to three times per week. Often you would consume a slab of beer or any other alcohol you could obtain. You used alcohol with friends in order to have a good time, and you instructed your counsel that you blacked out on a number of occasions. Before being remanded in custody, you were apparently drinking a six pack of beer every day after work throughout 2022.
69When you were 13 years old you commenced smoking cannabis, smoking one joint every day from age 13 to 16 years. You instructed your counsel that the cannabis made you feel stress free. You stopped frequent use when you were 14 and from there you smoked once per fortnight. When you were 16, you experimented with Xanax, taking five tablets throughout a given day. You were not prescribed the medication and used it for recreational purposes. Once you tried taking Xanax with alcohol and blacked out. You took Xanax three times a week up to 17 years of age when, you instructed your counsel, you ceased use.
70When you were 15, you began working as a tyre fitter in Campbellfield. You worked in this occupation for nine months. When you were 17, you worked in construction, obtaining employment through friends. According to a character reference provided by your parents, you are a hard-working individual, who worked in a caravan assembly line before being incarcerated for this offending. You are also talented, as a rugby and volleyball player, as well as a pianist, playing the piano for your Church. You have been most supportive of your family, according to the character reference, and you are eager to assist them as best you can when you are released from custody.
71In sentencing you, Mr Siisii, I have factored in that you appear to have played an equal role in the home invasion, the assault of Mr Carpenter and car theft, but that otherwise you played an overall lesser role in the offending that occurred in the house, although this largely is reflected in the fewer charges that you face in respect of the entire incident.
72I understand that you, Mr Siisii, have a strong network of support from your family and the letter provided on your behalf indicates that you have a solid work ethic. I accept that you are capable of leading a law-abiding life. As against this, I must factor in that you have spent a fairly substantial period of your life committing offences which, no doubt, has interfered with your ability to work and the limited ability of your family to positively influence you. I was told that you are motivated to be a contributing member of the community with your family being a significant motivating factor. I was told that you felt ashamed of your conduct and you were aware of the cultural and economic impact of your detention on your family. I have taken into account these matters in sentencing you, although there is a good deal of tension in relation to some of these.
73I have also allowed that time in jail will be harder for you due to the fact that you are concerned for your family and their ability to cope financially and physically whilst you are not able to help them as, I understand, you have previously helped them to some extent. More generally, I take into account the character reference from your parents, who speak very positively about you.
74In your case, I allow for a fairly substantial discount in the sentence which you would otherwise receive in circumstances where the matter resolved in this court following a sentence indication hearing. You conducted a contested committal hearing. However, that was in the context of facing the more serious charge of aggravated home invasion, which is no longer alleged against you. I understand that you had indicated a preparedness to plead guilty to particular charges before the committal hearing but this offer was rejected by the prosecution. The sentence indication was conducted on the basis of the charges that the prosecution and you accepted, which are the charges for which I now sentence you. In pleading guilty at the stage you did, you saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial, but I have also factored in your preparedness to take a good deal of responsibility for your behaviour, prior to the committal hearing.
75Lologa – background
76In relation to you, Mr Lologa, matters pertaining to your background are that you were 20 at the time of the offending; you are now 21.
77You are of Samoan descent however you are an Australian citizen.
78You reside in Wollert with your mother and siblings. You have five siblings and you are the second youngest in the family. Four of your older siblings are married with children – you have six nieces and nephews.
79Your parents divorced when you were 11 and you last saw your father briefly in 2021. Otherwise, you have no relationship with him.
80When you were growing up, your family struggled financially. You were subjected to corporal punishment from your father if you did not perform well at school or if you misbehaved.
81You attended Mount Ridley High School, completing Year 11, but discontinued your education at the beginning of Year 12. You were a below average student and regularly skipped school. You would then spend time with older Samoans from the community.
82It was during the time that you were truanting that you were introduced to alcohol, cannabis and Xanax. You used cannabis and Xanax together regularly and have been doing so since you were 17.
83After leaving high school, you attended TAFE to obtain a forklift licence however, you did not complete the qualification. You have been employed at Hungry Jack's and as a labourer in a factory. You last had a job in 2020 before the pandemic but otherwise your main source of income has been through Centrelink when you are in the community.
84Like Mr Siisii, this has been your first time in adult custody and you have found it extremely hard. You have maintained employment in prison and whilst at Fulham you have been a cleaner. You have completed courses and provided clean drug screens, although these were not available to be provided to the court however I accept what has been said about this. You are not currently taking any medication.
85Upon your release, you wish to return to live with your mother and siblings. You enjoy your family support in the community and wish to seek employment upon your release and help your family financially. In your favour I have also taken into account the letter from Jason McDonald from the Balanced Choice Program where he indicates that you have been actively involved in a self-development program known as 'The Anchor'. He said that you are a great presence in the program and that you were kind and supportive to other participants. He said that you held yourself with a quiet but respectful confidence and contributed meaningfully to conversations. He said that you had a driven spirit which allowed you to accomplish things that you had set your mind to. He said he had also seen your calm and considerate style of thinking which you frequently used to produce significant goals and pathways to achieve them. He said that you critically reflected on your past and present mindsets before demonstrative future focus thought processes. He said you have a robust connection to people that you cared about and consistently demonstrated:
'compassion, empathy, and love. He is a strong man who has the skills and values to support many people in his life and I believe he will pursue this further after his release. I would eagerly recommend him to future employers and believe he is serious about his self‑improvement.'
86I sincerely hope that that is the case, Mr Lologa. The other aspect of this is that in the past you have had strong family support, however, you have committed a number of offences notwithstanding this. However, I do hope that you are now moving in the positive direction of which the author of the letter in your support has spoken.
Early plea of guilty
87In your case, Mr Lologa, I was initially told that you offered to enter pleas of guilty to the charges now before the court before to the committal hearing. Subsequently, I was told that this was not the case in respect of one of the charges, as you offered to plead guilty to recklessly causing injury rather than intentionally causing injury in respect to one of the victims. The offer was rejected by the prosecution. In those circumstances I am prepared to treat your pleas of guilty as having largely occurred at an early stage. Therefore, you are entitled to a fairly significant discount in the sentence you would otherwise receive. You have saved the witnesses the time and trouble of giving evidence at trial, and, largely, it appears, you were prepared to spare them this at the committal hearing.
88Like Mr Siisii, your preparedness to plead guilty has also helped reduce the backlog of trials in this court which entitles you to a palpable discount.
89Your role in the offending is the most serious one, overall, which is reflected in the offences to which you have pleaded guilty but also, you were prepared to direct the youngest member of your group to become involved to utilise the knife, albeit that it is not alleged that you told him how to use it.
90In each of your cases, I must say I am not too convinced that you have much in the way of meaningful remorse or insight in relation to the seriousness of your offending and its impact upon the victims. It is to be hoped that as you mature, you are better able to appreciate these things rather than simply having regard to how the consequences of your offending have affected you.
91In each of your cases, you are entitled to a palpable allowance in your favour due to the fact that you have pleaded guilty during the pandemic and thereby contributed to a reduction in the backlog of trials in this court.
92In each of your cases, I also take into account that this is the first time you have spent in adult gaol, and you have already been there for a lengthy period, with the uncertainty of the outcome of these proceedings hanging over your heads. I understand that adult gaol has been a salutary experience for each of you. You have each endured a particularly harsh form of imprisonment as a good deal of this has occurred when a number of Covid related restrictions were in place- you each have been subjected to lockdowns, delays and some uncertainty in relation to your time in custody. I understand that you, Mr Siisii, have only been able to have intermittent contact with your family via video link, which has only recently been converted to in-person visits - well that was the position at least before the sentence indication hearing.
93Each of you are young men, with you, Mr Siisii, being particularly young being only 19 years of age. In each of your cases I ought do what I can to maximise your prospects of rehabilitation and I have borne in mind, as a general principle, the undesirability of young men spending unduly lengthy periods in prison.
Parity
94In considering parity, it is not overly relevant to consider what occurred in relation to the third co‑offender who was dealt with in the Children's Court. There are fairly different considerations that apply to offenders in that court.
95Further, as has been obvious and as I have mentioned already, Mr Lologa, you are in a more serious position as you are older than the other two offenders, you committed more offences, also directing the youngest of your group to become more involved by using a knife. It might be said that on the one hand your criminal history is not as lengthy as that of Mr Siisii, which is the case, however there are still a number of offences within it that are of a serious and relevant nature.
96In terms of the house invasion and the attack upon Jordan Carpenter, and car theft, you are each in a similar position. However, your offending, Mr Lologa, exceeds that of Mr Siisii rather substantially in other respects.
97In each of your cases, due to your fairly substantial criminal histories and the offending on this occasion, but also factoring in that apparently jail is having a salutary effect upon you and you both have stable home environments to go to, albeit that this did not serve to assist you in the past, but all relevant matters considered, I rate your prospects of rehabilitation as being guardedly fair. I place fairly substantial weight on specific deterrence and protection of the community and strong weight on general deterrence in a bid to deter others from behaving as you have.
98As I have said, I still rate each of you as being in a position where I must do what I can to maximise your chances of turning things around in a positive way in view of your young ages. However, I must also place appropriate weight on other relevant sentencing factors to which I have referred.
99At a sentence indication hearing which I conducted, I said that the maximum head sentence that either of you would serve was 4 years' imprisonment and that you might well do better than that at a plea hearing. Therefore, 4 years is the maximum sentence which can be imposed in either of your cases and I have taken that into account in sentencing you and the remarks I made at the sentence indication hearing.
100In the end, having regard to all relevant matters in each of your cases, and also applying the principle of totality, I have arrived at sentences, which in my view do justice to all relevant sentencing considerations. I have also done what I can to maximise the gap between your non‑parole period and head sentence. I do hope that, all things being equal, you can be released on completion of your non‑parole period as it would be ideal for you to be supervised in the community whilst being subject to parole.
101I will first deal with you, Mr Siisii, in relation to the sentences that I will impose.
102I will indicate that first of all that you are convicted of the offences.
103As previously indicated, the forfeiture order sought by the prosecution in relation to your phones is refused as there is insufficient evidence for me to conclude that they are 'tainted property' as defined.
104I make the disposal order sought by the prosecution which is not opposed by you.
105You are sentenced to the following periods of imprisonment:
106Charge 1: 2 years 8 months which will be the base sentence
107Charge 2: 12 months
108Charge 3: 6 months
109I direct that 4 months from the sentence on Charge 2 be served cumulatively with the base sentence producing a total effective sentence of 3 years' imprisonment.
110You are to serve 18 months before becoming eligible for parole.
111I declare that you have already served 483 days by way of pre-sentence detention. If not for your pleas of guilty I would have sentenced you to a total effective sentence of four and a half years with a non-parole period of three years.
Stand up Mr Lologa
112I will now turn to you, Mr Lologa. You are convicted of each of the offences
113Ancillary orders
114I make the disposal order sought by the Prosecution and which is not opposed by you.
115You are sentenced to the following periods of imprisonment:
116Charge 1: 2 years 8 months which will be the base sentence.
117Charge 2: 12 months
118Charge 3: 2 years
119Charge 4: 18 months
120Charge 5: 6 months
121Charge 6: 3 months
122Summary charge: 2 months
123I direct that 4 months from the sentence on Charge 2, 7 months from the sentence on Charge 3 and 2 months from the sentence on Charge 4 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 3 years 9 months and I direct that you serve 24 months before becoming eligible for parole.
124I declare you have already served 426 days by way of pre-sentence detention.
125If not for your pleas of guilty I would have sentenced you to a total effective sentence of five and a half years with a non-parole period of four years.
126Is there anything arising counsel?
127MR RANJIT: Not from me Your Honour.
128MR KARITZIS: No, Your Honour.
129MS HERSCH: No, Your Honour.
130MR RANJIT: Your Honour pleases.
131HER HONOUR: All right. Yes, thank you. I will leave you to talk to your clients later. I think it will be a bit awkward with two there over the transmission, so I will leave you to do that later. Thank you, we will now adjourn.
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