Director of Public Prosecutions v Siologa
[2020] VCC 581
•7 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-02026
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SIOLOGA |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February & 21 April 2020 | |
DATE OF SENTENCE: | 7 May 2020 | |
CASE MAY BE CITED AS: | DPP v SIOLOGA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 581 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Attempted armed robbery – armed robbery - arson
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Dalgliesh [2017] HCA 4; Bugmy v The Queen [2013] HCA 37; R v Mills [1998] 4 VR 235; R v Azzopardi & Ors [2011] VSCA 372; Guden v The Queen [2011] VSCA 196; DPP v Leach [2003] 139 A Crim R 64; R v Jurisic (1998) 45 NSWLR 209;
Sentence: Total effective sentence of 4 years’ imprisonment with a NPP of 2 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Burt (For Plea) | Solicitor for the Office of Public Prosecutions |
| Ms C. Badcock | ||
| (For Sentence) | ||
| For the Accused | Mr R. Lawrence | Stary Norton Halphen |
HIS HONOUR:
1 Michael Siologa, on 13 November 2019 at the County Court at Melbourne you pleaded guilty to one charge of attempted armed robbery, maximum penalty of 20 years' imprisonment; one charge of armed robbery, maximum penalty of 25 years' imprisonment; and one charge of arson, maximum penalty 15 years' imprisonment.
Background to the offending
2 You were 21 years old at the time of the offences. You were then residing with your co-accused Henry Tuiolenuu in Deer Park at his family's home with his parents and siblings. You were then and continue to be in a committed relationship with the co-accused's younger sister Nellie.
Circumstances of Offending
3 On 31 August 2018 at 7:40 pm you and the co-accused drove up to the front door of the 7‑Eleven service station located at 66 Hampshire Road, Sunshine in a stolen Honda Accord. The co-accused was the alleged driver of the vehicle and was armed with a large knife. You were depicted as wearing certain clothing but also holding a pair of red handled scissors.
4 You exited the vehicle armed as detailed above, at which point a bystander observed you both and started beeping his horn to alert others in the area. He called out, 'Call the cops, there's a robbery'. Mr Pasham, the console operator at the service station, managed to lock the doors just in time and pressed the duress alarm to alert the Police. This conduct constitutes Charge 1 of attempted armed robbery. You were unable to enter the store, as the doors were locked, and you have both walked back to the stolen vehicle and driven off north along Hampshire Road.
5 Security who were monitoring the duress alarm system of the service station were alerted of the incident and have contacted 000 requesting police attendance at the 7‑Eleven.
6 At approximately 7:57 pm, CCTV footage captured the co-accused driving the stolen vehicle at a fast rate of speed into the United service station situated at the corner of Ballarat Road and Station Road in Deer Park. The co-accused reversed the stolen vehicle near the front doors and then entered the store armed with a large kitchen knife, whilst you were armed with the pair of red‑handled scissors. You entered and leaned against the automatic doors to keep watch and to prevent the doors from locking.
7 The co-accused walked straight to the front counter and pushed customer Mohammed Naleen in the chest, forcing him back. You are not charged with an offence in relation to this incident. The co-accused then approached the console operator, Navendra Bodapati, pointed the knife towards him and demanded as follows: 'Give me the money before I come over there'.
8 Mr Bodapati handed the co-accused a $50 note. The co-accused demanded the entire cash register, while still pointing the large kitchen knife at him. Further demands were made and two other cash registers were opened and their contents handed to the co-accused. The total of the three registers contained approximately $2,000 in assorted notes and coins. This conduct constitutes Charge 2 of armed robbery.
9 Around this time the police were patrolling the area, having been alerted of a green Honda Accord that had been involved in armed robberies throughout the evening. The officers spotted a car matching that description parked at the United service station. They then observed you and the co-accused exiting the service station. The officers got out of their patrol car and approached you and the co-accused. They drew their firearms and told you both to drop your weapons. You both got back into the stolen vehicle and sped off.
10 At approximately 11:23 pm Detective Sergeant Cantone and Constable Foden were notified by Police Communications of a car fire along Milbank Drive, Deer Park. Police attended the scene and confirmed the vehicle to be the same stolen vehicle as used by you and the co-accused in the series of armed robberies. This conduct constituting Charge 3 of arson.
11 Located discarded nearby was a pair of red-handled scissors. Investigators believe these scissors were stolen from Coles by the co-accused and used by you in the commission of the armed robberies. On 1 September 2018 the vehicle was towed to a location to enable police examination. On 3 September 2018 John Kelleher of Victoria Police Forensic Services Centre examined the Honda Accord that had been damaged by the fire. He found:
· The cause of the fire was the ignition of combustible materials in the passenger compartment; and
· The source of the ignition was not determined, but in the absence of any apparent source of accidental ignition, was probably a match or a cigarette lighter.
12 On 5 September 2018 investigators executed a search warrant at the co-accused's home address in Deer Park. The co-accused was present and subsequently arrested. You, however, were not known to the police at that time and therefore not located.
13 Upon further investigation of the red-handled scissors seized by police, forensic officers returned a DNA match to the co-accused, as well as an extremely strong DNA match to you.
14 On 16 May 2019 you were arrested in Queensland and extradited to Victoria, where you were interviewed at Sunshine police station on 17 May 2019 and denied involvement with these offences. The interview was suspended at 1:36 pm by investigators while they made further enquiries. Whilst at the Sunshine police station you spoke with two Victorian Police covert operatives and made the following comments:
(a) That you had committed an armed robbery;
(b) That the incident occurred eight months ago when your 'missus' was heavily pregnant'
(c) That your brother-in-law was accused and he had been remanded two days after the incident;
(d) That your brother-in-law was arrested at the place you were both residing and that was the main reason that you went to Brisbane;
(e) That you thought the police might have CCTV against you, but even if they did it would not capture your appearance, as your face was covered, all visible tattoos covered and your hands also;
(f) That the offence location was Deer Park United service station; and
(g) That you had used a Honda Accord and set it on fire afterwards.
At 3:42 pm investigators recommenced the recorded interview with you and you continued to deny any involvement in the offences. You have been in custody since this time.
Assessment of Gravity of Offending
15 It was submitted by the Prosecution that this is serious offending. Your counsel submitted that these are clearly serious offences, having regard to the maximum penalties prescribed by Parliament. In terms of the seriousness of this offending it was submitted to be not at the bottom of the range but lacked many features which would categorise it at the higher level, there being no evidence of sophisticated planning but some planning as there were disguises, weapons and gloves utilised. The duration can be viewed as relatively short, the actual violence employed being limited to the push in the chest to Mr Naleen by the co-accused. Overall these factors were submitted to make your offending not at the higher end of seriousness but accepted that they are serious offences by their nature. Furthermore, it was submitted the court should view your role as being lesser than that of the co-accused, as he can be viewed as the instigator of the offending and the person who committed the violence against Mr Naleen. But I note you still accept that you were a knowing and willing participant in this offending.
16 The prosecution submitted in response that your offending clearly was planned to an extent, involved a soft target as the console operators were simply doing their jobs, there was some use of force and the presence of the two weapons. Although there there was only the physical assault to Mr Naleen by your co-accused, there is violence inherently in the threats made. It is clear that there is a perception of the potential for real harm to the victims and those nearby. It was submitted that the CCTV of these events clearly showed people running away, appearing to be scared, and an individual notifying people nearby, attempting to prevent these offences occurring.
Criminal Record
17 You have a serious criminal record for a man of your age. It would appear that while you have not spent significant time in custody, you have committed significant number of offences. Your record includes 19 charges of armed robbery, 18 of which were committed in Victoria, and three charges of attempted armed robbery, which are all of great concern in relation to this offending. You have spent two periods in custody. On 6 November 2015 you were sentenced by the Melbourne Children's Court, in relation to a breach of youth attendance order and further offending, to eight months in a youth justice centre. In Queensland in relation to a charge of robbery armed in company on 26 May 2017 at the Brisbane District Court you were convicted and sentenced to two years and six months' imprisonment with six months served and the remainder suspended for two years and six months. It was submitted by your counsel that you may be extradited to Queensland to serve the remainder of that sentence.
Victim Impact Statements
18 No victim impact statements have been supplied to the court or tendered in this matter.
Matters in mitigation and personal to you
19 You are now 22 years old and were born in Auckland, New Zealand. You are the oldest of four children to your parents, with two younger brothers and one younger sister. Your parents migrated to Australia when you were an infant, first to Sydney before moving to Queensland and finally settling in Melbourne. Your parents and two brothers currently reside in Brisbane, with your younger sister residing in Melbourne. You were support in court by your partner Ms Nellie Tuiolenuu and others on the plea. You have one son with Ms Tuiolenuu, Thabais, who was born in September 2018.
20 You attended St Albans Primary School and you regarded school as a haven from your home life. Your acquisition of literacy and numeracy was slower than average and you did not care too much what teachers thought of you. You fought with students, had a group of friends, enjoyed sport, and in particular rugby in which you excelled.
21 In relation to your secondary education, you attended Deer Park Secondary College in Years 7 to 9 but were not a capable student. Your focus was on rugby training and you were selected in an under 15 state team and the Melbourne Storm development squad. In Year 10 you attended Brimbank Secondary School and continued to play with Melbourne Storm's under 16 team. When attending Keilor Downs Secondary School for Year 11, when you were 16 years of age, you were unfortunately introduced to methamphetamine by a friend. You enjoyed its effect and quickly began using the substance several times a week in company. Losing interest in your training, you stepped away from rugby and the club, ignoring requests to return. From this point your life rapidly unravelled. You left school in the middle of Year 11 and began funding your drug habit through theft. Eventually you were sentenced to eight months at a YTC and completed your Year 11 studies at Parkville College. Following your release you and your family moved to Brisbane to make a 'fresh start'. You attended a flexible learning centre and completed your Year 12.
22 In terms of employment you have had several different jobs; however, your early efforts were impacted by your continued drug use. You spent four months working on an assembly line before being dismissed due to your poor attendance. Moving on to working in a warehouse, you lasted two months before being dismissed for the same reason in early 2018. In the week before your son was born you found a position full-time labouring in a cold storage in Laverton and continued to work there until you decided to move your new family to Brisbane and move in with your parents and siblings.
23 Once in Brisbane you obtained full-time work at a door and window frame factory. You had worked there for some six months before you were arrested and extradited back to Victoria in relation to these charges.
24 It was submitted by your counsel that, although it is patchy, you had solid full-time work for six months prior to your arrest and that the court should view this as promising in terms of prospects for future employment.
Psychological Report
25 Tendered as Exhibit B on the plea was the psychological report of Mr Guy Coffey, clinical psychologist, dated 25 February 2020. All of the above personal background and circumstances are referenced in Mr Coffey's report. You presented as having settled into prison life reasonably well, although you missed your partner and son intensely. You tried to keep yourself busy, playing sport, going to the gym, and had good relationships with most fellow prisoners. Though you had been held in seclusion for three to four weeks at the time of interview by February, you denied that you had experienced symptoms of clinical depression at any time during your remand. Mental health assessments had not detected any psychiatric disturbance.
26 You related a history that from a young age your family life was unsettled due to your father's heavy drinking, having moved to Australia to get away from his connections with gangs and also his violence towards your mother, your siblings and you. Your mother was regularly beaten till she could not move and then your father would turn on his children and beat them severely. You described to Mr Coffey 'suffering various forms of sadistic violence from a pre-school age until mid-secondary school perpetrated by your father'. You recalled in primary school living in dread that you would be killed by your father one day.
27 You suffered further abuse, of a sexual nature at the hands of one of your cousins who stayed with your family when you were in Year 7. This man was in his early 20s and repeatedly sexually abused you. You felt that you could not tell anyone and felt angry and afraid. You began having suicidal thoughts and acted on some of them, tying a ligature around your neck and suspending yourself inside a wardrobe, releasing yourself when you could not breath. This behaviour continued for a year.
28 In March 2016 after your release from youth detention and your move to Brisbane, you stated that your relationship with your father did improve. His drinking had been curbed and he was no longer violent toward his wife or children.
29 As to your drug abuse, Mr Coffey writes that when you commenced taking methamphetamine at 16 your mental health deteriorated due to the drug abuse and chaotic lifestyle that followed. You often went without sleep for up to three days and started hearing and seeing things that were not there. The two earlier periods in custody did not seem to have assisted you with your drug problem. Your mother is of the belief that you did not overcome your drug addiction in youth detention. Further, you reported that during your time in remand in Queensland your psychological state deteriorated as you were able to obtain methamphetamine and used it regularly, experiencing auditory hallucinations.
30 Following your release in early 2018 your life became consumed by drug abuse. Mr Coffey wrote:
'He used methamphetamine daily, about 0.5 grams, drunk heavily on weekends, up to 24 cans of beer in a drinking session, fought at nightclubs, kept company with people he met at jail, "mainly of Islander and New Zealand background", and supported his addiction through drug dealing. He would sometimes not eat or sleep for days at a time'.
Later in June of that year in relation to a dispute around a drug deal you were kidnapped, tied up, bashed unconscious and had your fingers badly cut. You discharged yourself from hospital against medical advice.
31 In August of 2018 when you returned to Melbourne for the birth of your son you were withdrawing from substance abuse and were suffering from the side effects. As to your offending on 31 August 18, Mr Coffey writes that you were not drug or alcohol affected although you were still experiencing the set of withdrawal symptoms. You relayed to him that the co-accused had asked you to go for a drive in the car that he had stolen, though you did not know that until you were in the car. He then persuaded you to assist with an armed robbery by convincing you that you would need the money now that you were starting a family. You stated that at the time you were not thinking straight due to suffering the effects of withdrawing from methamphetamine, though you did not deny you participated and acted with clear intent throughout.
32 On this subject you stated to Mr Coffey that you took responsibility for the offending and knew it was wrong but that you felt that your co-accused had taken advantage of you. You said the clarity of your decision-making was impaired by your drug withdrawal. As to the effect on the victim, you stated that you did not see what transpired at the counter but that the victim would have been psychologically affected and be worried and fearful about his safety at work in the future. Mr Coffey opines that your judgment was not significantly impaired at the time of the offending. You were not mentally ill and had not used any substances for a few weeks. Finally, you denied that you had moved to Brisbane to elude police and that you had wanted to spend time with your parents and have them assist you and your partner with the care of your son.
33 As to your mental health, you stated that you have not received any psychological or psychiatric treatment in your adult life other than a prescription from a GP in December 2018 and brief contact with a psychologist whilst in youth detention. Mr Coffey found that 'There was no formal thought disorder present [and] no clear post-traumatic re-experiencing of traumatic events'. It is relevant to note Mr Coffey's summary of your mental state:
'Mr Siologa did not suffer from a mental illness when I assessed him. There were no symptoms of a mood or anxiety disorder. He has experienced auditory hallucinations periodically for many years, usually but not always in the context of methamphetamine abuse. He currently experiences occasional transient auditory hallucinations in the absence of other psychotic symptoms. There is unlikely to be an underlying or incipient psychotic illness at the stage. He suffers from substance use disorders, now in remission: stimulant use disorder and alcohol use disorder (DSM-5). There were aspects of his personality functioning which appeared to be the long-term sequalae of childhood physical and sexual abuse. He did not demonstrate the full set of maladaptive traits associated with a personality disorder. Moreover he did not express a broad range of antisocial attitudes or beliefs and despite his considerable history of offending he did not appear to possess the pervasive disregard for the well-being and rights of others associated with antisocial personality disorder. His intellectual and cognitive function were normal'.
34 While Mr Coffey considers, based on his examination, that you have never suffered from a serious mental illness, he does opine that the circumstances of your early life are inauspicious for your future psychological well-being. Further, he links these past traumas with your social descent and at time embracing of illicit substances. He says:
'He bares the psychological sequalae of these early adverse experiences: his brittle self-esteem, his struggle to trust others, his vigilance and expectation of threat, his anger about the past, and his attempts to quell the dysphoria and distress associated with those experiences through drug abuse'.
Personal References
35 Exhibit D is a reference from your partner of six years, Ms Nellie Tuiolenuu. In it she writes she feels that you have hit rock bottom, especially now that you have a son and are missing out tremendously on his growth. It is 'killing' you that your 'stupid and serious behaviour' has put you behind bars. You apologise and reflect on how much of a better partner and father you should have been and are willing to be upon your release. She discusses your upbringing and that she is aware of all of your past mistakes and prior convictions. The biggest punishment for you is the absence in your son's life and not being able to physically watch him grow. Your life changed tremendously when your son was born and that every little thing that you did was for him and making sure that they had everything they needed since that time. She says you have flipped your entire life around for the better and have come a long way. She is proud of how much you have outgrown your old self and that the man you were a year ago is nothing to the man you are today.
36 A letter written by your parents was also provided to the court and tendered as Exhibit E. In it they write about your strict upbringing, that you experienced things that were traumatic and would probably affect you for the rest of his life, that your early opportunities in rugby also led to you mixing with the wrong crowd, using drugs, having financial struggles and associating with other bad influences. They saw you changing before their eyes. That seems to have all changed with the birth of Thabias. They do not condone your past actions but believe that they will stay there in the past. You have expressed your remorse for your actions and are missing your small family. They hope the court considers your commitment to your family and change prior to your arrest and that you are given the opportunity to prove your worthiness and make things right.
37 Zion Faia, a former co-worker and friend, also provided a reference which was tendered as Exhibit F. In it he writes that he has known you for three years and that he views you as a brother. He says you have always shown a heart and have done the right thing by your friends and family. The charges against you are not the Michael that he knows. He is aware of your rough childhood and upbringing and that you are still getting over some of the demons you have faced. He considers you were a hard-working man and that there is still an opportunity for you to come back when you are released. The person whom he knows you to be is far from the person you were. The worst punishment for you is not being able to see your son grow up and you have always shown deep remorse for your actions.
38 Exhibit G was a reference provided by Carl Pale, who has known you for some eight years and is a family friend. He knows the charges that you are facing and you have spoken to him about how sorry and remorseful you are for your actions. They were actions based on stupidity and immaturity. He is also a father to a young son and knows how much sons need their fathers. He is well aware of who you were in the past as well as your prior convictions. He believes that you are a hard and strong worker and is willing to help you get on your feet again and there is potential for you to start working in form work.
39 You have written your own impressive letter to the court, tendered as Exhibit C. In it you express your remorse, endless regrets and disgrace for yourself for what you acknowledge to be serious crimes and selfish acts. You hope that the court is able to see the good in you, whilst you admit that you are guilty of the charges and accept that there must be some punishment for it. You make no excuses and it is something that you will have to live with. Writing that you have never had real motivation in your life to do better, you describe your upbringing and the domestic violence perpetrated by your father. Simply you state you would not wish this on your worst enemy.
40 You relate that majority of your childhood and teen years were spent silently everyday in pain and with fear. When you were introduced to ice you thought you finally had a break but did not realise it would take you to a darker place than the one you were already in. However, you found your purpose with the birth of your son Thabias. You have now found the motivation to do better and break the ongoing cycle of violence and to give your children everything and all the opportunities you never had. You have seen changes in yourself that have shocked you and are now a man that only has one objective in life: to be the best dad and partner you can be. Although you recognise that the sentence that the court will impose will keep you from being the father you want to be now, you are looking forward to moving on and leaving this chapter behind. You express that you are genuinely sorry, remorseful and regretful for your crimes and hope and pray for the victims.
Sentencing Principles
41 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour and impose a just punishment in all the circumstances. I must express the community's denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of this kind that you have committed and I must balance your personal circumstances.
Current Sentencing Practices
42 I have consulted the case summaries of both the County Court and Court of Appeal in respect of offences of armed robbery and arson, which were partly provided by the prosecution and the defence. Further, I have considered the Sentencing Advisory Council's sentencing snapshots for arson, No.226, and armed robbery, No.236.
43 The cases do serve as some reference to the objective gravity and seriousness of your offending and, whilst the court has taken the cases provided into account in determining the appropriate sentence as being informed by them, I am not bound by them in exercising my sentencing discretion and view current sentencing practice as only of the factors I must consider along the lines of the principles of DPP v Dalgliesh [2017] HCA 41.
Childhood Trauma
44 Defence counsel submitted that you had experienced childhood deprivation that has had lasting impacts on your development and later behaviour, that this is a relevant and mitigating factor in determining the most appropriate sentence in this matter. Your counsel also directed the court to the case of Bugmy v The Queen [2013] HCA 37. It is appropriate to state the principles at paragraphs 43 and 44 which read as follows:
'The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same mitigating relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult'. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration, may increase the importance of protecting the community from the offender.'
45 An offender's childhood is one of the many factors to be taken into account.
Plea of Guilty and Remorse
46 It was submitted by your counsel that whilst you were arraigned and pleaded guilty to these offences on the second day of the trial that no jury was empanelled or witnesses cross examined and that while the court could not view your plea as an early one that it still has utilitarian benefit.
47 I take the timing of your plea into account and you will, of course, also receive credit for its objective utilitarian benefit, although through the saving of time and resources associated with the running of a trial, and I do recognise a level of remorse and insight with respect to this offending and your subjective willingness to facilitate the course of justice.
General deterrence and denunciation
48 This is offending for which general deterrence and denunciation are significant factors in the court's instinctive synthesis. This was submitted by the prosecution and conceded by your counsel.
49 The victims of such offences are placed by the offenders who commit such abhorrent conduct in objectively terrifying situations. In this case it would have been a sensation shared by the victim Mr Naleen and other bystanders at those petrol stations.
50 The arson charge must also be adequately denounced. While a criminal may in the furtherance of their hope to allude the police think of a stolen vehicle as simply a tool that has reached the end of its usefulness, that is not the case for the owner. It can be more than just a car. It may be the result of long hours of work and careful saving. It may well be the facility that allows them to travel to and from work and earn a living to support their family. It could be the way that a sick child or relative is taken to get treatment. I applaud you for your change in motivation and lifestyle since the birth of your son, Mr Siologa. However, I must bring home to you and others the very real impacts of your offending. The court must send a message to others who would engage in such offending that they will receive condign punishment for committing such acts, as you acknowledge, a much higher price than the amount of money gained.
Specific Deterrence and Community Protection
51 It was submitted by the prosecution that in light of your prior history that community protection and specific deterrence are both important considerations in the court's instinctive synthesis. The prosecutor, noted as previously mentioned, your 19 convictions for armed robberies and that the community should be protected from these offences.
52 Defence counsel acknowledged that there was a need for specific deterrence due to your prior matters. However, he did urge the court to accept that you have made a significant change in attitude and commitment for the future of your partner and son. It was submitted that any length of time in custody would provide an effective deterrent due to the separation from the son it inherently caused. There was no need to lengthen the period in order to guarantee that it is an effective deterrent in your circumstances.
Prospects of Rehabilitation and Youth
53 Mr Coffey in his report at paragraph 94 opines as to his view of your prospects:
'In my view, despite the pattern of repeated serious offending, there are some grounds for cautious optimism regarding Mr Siologa's rehabilitation. Mr Siologa claims that his paternity has made him determined to care for his family, to live responsibly and to receive assistance he needs with regard to his addiction and psychological difficulties. He appears to be sincere in this commitment, although he underestimates the extended application to his rehabilitation that will be required to redirect his life. He has never before undertaken a course of treatment and in fact has actively avoided seeking assistance. He has shown himself capable of reducing his drug use and working productively for periods of less than a year, but he has not learnt what precipitates him back into addiction and offending. Contrary to what he may hope, his newly achieved status as a father will not confer on him any immunity to relapsing'.
54 He goes on to say that he believes that if you receive the recommended rehabilitation you will have a reasonable chance not to reoffend. However, should you not, it is much more likely you will reoffend, going as far to write that if you relapse into substance abuse you will very likely reoffend.
55 You are still a young man at 22 years of age and as such the principles regarding the sentencing of young offenders are applicable in this matter. Our Court of Appeal in the case of Mills [1998] 4 VR 235 endorsed three general propositions that sentencing courts should have regard to when dealing with youthful offenders.
56 These principles have been subsequently reaffirmed by the Court of Appeal in the case of R v Azzopardi & Ors [2011] VSCA 372. The court explained that the primacy of youth as a sentencing consideration being underpinned by the following considerations at paragraphs 34 to 36 per Redlich JA:
'Firstly, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They "may lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, courts "recognize the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of antisocial behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that antisocial tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community'.
57 It was submitted by your Counsel that, in spite of your prior matters, your young age remains a matter of special significance in the court's sentencing exercise; I agree. Your continued rehabilitation will be to the community's benefit if you can apply yourself to the objective that you have set and avoid the lure of illicit substances and negative peers that have led you to relapse and reoffend in the past. It will be protected by your rehabilitation. However, as noted by Mr Coffey, this is in some ways your first attempt at seeking assistance and treatment for these issues and as such there is a risk that you may reoffend. In consideration of your personal circumstances and criminal record, the court must view your prospects as guarded at this time.
Hardship and Deportation
58 It was submitted by your counsel that you are a permanent resident but not an Australian citizen. There is the possibility that your visa will be cancelled and that authorities may deport you back to New Zealand at the completion of your sentence. You do not wish to return to New Zealand as your immediate family, partner and son reside in Australia. It is submitted that as there is possibility that you face the separation of those you love by being deported, and this will make your time in custody more difficult. Though it was not raised by counsel, the court is cognisant of the principles espoused in the case of Guden v The Queen [2011] VSCA 196. While the prosecution accepted that you face the additional hardship that you may be deported, it was submitted that there is some degree of speculation in its nature, but that the court could take into consideration the fact that this will likely make your period in custody more onerous.
59 Once again I repeat that I have taken note of these principles and have given full weight to your background and your childhood in determining the most appropriate sentence in all of the circumstances.
Disposition
60 At the first plea hearing on 28 February 2020, it was conceded by your counsel that a term of imprisonment greater than that already served musty be imposed. However, that in light of your circumstances, the offending and the lengthy program of rehabilitative programs recommended by Mr Coffey, that a combination sentence would be appropriate. He Submitted that such a sentence would appropriately balance the needs of deterrence and denunciation whilst encouraging and supervising your rehabilitation. This submissions was withdrawn following counsel conferring that a combination sentence was not available in this matter following legislative changes to the Sentencing Act 1991 (Vic). In the alternative your counsel submitted that the court should impose a shorter non-parole period in relation to the head sentence so that you possibly could be the beneficiary of a longer period on parole and the supports that it would provide you. It was submitted that you are someone that needs assistance to deal with your significant problems, specifically referring to you being a victim of significant family violence as a child and your substance abuse issues. Whether or not you are likely to be granted parole cannot form part of the court's instinctive synthesis and I must presume that you will serve every day of any term of imprisonment that is imposed.
61 A further plea was heard on 21 April 2020. At that hearing the parties submitted to the court that further research into the legislation that was said to preclude the court from being able to impose a combination sentence in this matter had determined that it was not applicable to these circumstances. As such, your counsel submitted that his original submission as to disposition, being a combination sentence, was appropriate in all the circumstances.
62 The prosecution on both occasions submitted that such a disposition was not in range and that the court should impose an immediate term of imprisonment which would require the fixing of a non-parole period.
63 In all the circumstances I consider that a combination sentence is not desirable, given the objective seriousness of the offending and your antecedents. However, I am prepared to accept your eloquent handwritten plea as to your change in attituded following the birth of your only child. Therefore the factor that is applicable in your case is whether the court should exercise a modicum of mercy when administering justice.
64 As Eames JA in DPP v Leach [2003] 139 A Crim R 64:
'It is particularly important that [the Court of Appeal] should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community'.
65 Further, as Spigelman CJ stated in the matter of Jurisic (1998) 45 NSWLR 209, His Honour stated:
'It has long been accepted that the denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishments. Courts are, however, aware that the requirements of justice and the requirements of mercy are often in conflict but that we live in a society which values both justice and mercy'.
66 In my instinctive synthesis in forming the ultimate sentence, I take into account that the common practice of a non-parole period being approximate 60 per cent unless justice of the case demands otherwise. For the reasons I have set out above, I consider that this is such a case. The ultimate sentence that I impose principally but not exhaustively relates to your prospects of rehabilitation and with respect to the lower level of objective seriousness and the matters personal to you as set out above. In all the circumstances and balancing all the considerations I have referred to above, I consider that a shorter non-parole period than is often ordered is warranted in your case.
Sentence
67 Mr Siologa, would you please stand.
68 On Charge 2 of armed robbery you are convicted and sentenced to two and a half years' imprisonment. This is the base sentence.
69 On Charge 1 of attempted robbery you are convicted and sentenced to one and a half years' imprisonment with one year to be served cumulatively on Charge 2.
70 On Charge 3 of arson you are convicted and sentenced to one years' imprisonment with six months to be served cumulatively on Charge 2.
71 This makes a total effective sentence of four years and I direct that you serve a non-parole period of two years before being eligible for parole, which I believe is appropriate in all of the circumstances.
72 Counsel, is 357 days the pre-sentence detention?
73 MR LAWRENCE: Yes, Your Honour.
74 HIS HONOUR: I declare 357 days not including today have already been served as pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have imposed a total effective sentence of six years' imprisonment with a no- parole period of four years.
75 The prosecution have made no application for ancillary orders. Is there anything further, counsel?
76 COUNSEL: No, Your Honour.
77 HIS HONOUR: Can you please adjourn the court.
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