Director of Public Prosecutions v Sudmeyer

[2017] VCC 783

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00266
CR-17-00275

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL SUDMEYER
CHRISTOPHER KAUFUSI

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2017
DATE OF SENTENCE:	14 June 2017
CASE MAY BE CITED AS:	DPP v Sudmeyer & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 783

REASONS FOR SENTENCE
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Subject:             Criminal law – sentencing
  Sudmeyer – Armed robbery and commit an indictable offence whilst on bail
  Kaufusi – Assist offender and commit an indictable offence whilst on bail

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	John Cain, Solicitor for the Direct of Public Prosecutions
For Accused Sudmeyer	Mr C. McLennan	Chris McLennan & Co
For Accused Kaufusi	Mr M. McGrath	James Dowsley & Associates

HER HONOUR: 

1Carl Sudmeyer, you have pleaded guilty before me to one charge of armed robbery and a related Summary Charge No.9 of commit an indictable offence whilst on bail. 

2Christopher Kaufusi, you have pleaded guilty to one charge of assist an offender and one charge of possess a drug of dependence and a related Summary Charge No.11, commit an indictable offence whilst on bail.

3The offences are serious, and that is reflected in the maximum penalties, and they are as follows:  Armed robbery, 25 years maximum; assist offender, five years maximum; possess a drug of dependence, 400 penalty units or five years maximum; and commit indictable offence whilst on bail, 30 penalty units or three months' imprisonment.

4In addition, Carl Sudmeyer, you have admitted your prior criminal history.  There are a number of convictions recorded and there are relevant prior criminal convictions for armed robbery, attempted armed robbery, robbery, recklessly causing injury, threats to inflict serious injury and committing an indictable offence whilst on bail that has been recorded.

5In the past you have been dealt with by way of a number of different dispositions including Community-Based Orders with Justice Plans, Community Correction Orders with Justice Plans, and you have also undergone sentence on occasion.  You are now aged 27.

6Christopher Kaufusi, you are aged 37, and you have admitted two prior court appearances. You have multiple convictions in respect to drug-related offending, driving offences, contravention of a Community Correction Order and fail to answer bail as well as other dishonesty offences.  You have some pending matters on 28 July 2017 at Melbourne Magistrates' Court in respect to charges of state false name to police, unlicensed driving and other unresolved matters, and I have been informed that there are possibly two outstanding warrants in respect to you that are yet to be executed.

7I shall now proceed to sentence you both on the basis of the summary of the prosecution opening.  The prosecutor read out the opening at the plea hearing this morning and I do not to detail it in full.  It is marked Exhibit 1.

8There were three co-offenders in respect to the armed robbery.  They are Carl Sudmeyer, Ali Hood and Anthony Gebhardt.  Ali Hood and Anthony Gebhardt are yet to be dealt with by the court.  Their matters are to be dealt with in the Koori Court Division of the County Court in the near future.

9Christopher Kaufusi, you are not to be sentenced in respect to the armed robbery.  You came into the situation late in time.

10All four of you were living at the Gatwick Hotel situated at 34 Fitzroy Street, St Kilda at the time of the offending.  Mr Sudmeyer and the victim were known to each other, but the victim did not know the others, Mr Hood, Mr Gebhardt or Mr Kaufusi. 

11From the material that has been provided in the plea hearing, the context to the offending is described as being a dispute about some drugs, as referred to in Dr Aaron Cunningham's report. 

12There was a confrontation between Mr Karabas, the victim, and Mr Sudmeyer in the stairwell area outside the entrance to the bathroom at the Gatwick Hotel at about 1.37 am on Saturday 10 September 2016.

13At the time, Mr Sudmeyer, you were holding a machete by your side in your right hand, and my viewing of the CCTV footage of the scene showed you standing with your feet apart, and you were joined by Mr Hood and Mr Gebhardt.  There was discussion between the parties and eventually Mr Karabas was forced into the toilet cubicle.

14At some stage it is observed that Mr Karabas’s bicycle was removed from him and Mr Sudmeyer is seen at times pointing the machete directly at Mr Karabas. 
Mr Hood is seen walking past Mr Sudmeyer to physically confront the victim, at which stage he was forced backwards into the bathroom as all three men, including Mr Gebhardt, were standing up, moving closer to him.  Eventually,
Mr Karabas' bum bag with his mobile phone was removed from him, and that constitutes Charge 1, the armed robbery.

15At around this time, Mr Kaufusi, you walked up and stood behind Mr Gebhardt in the bathroom doorway.  You were seen holding a torch, which you were shining directly at Mr Karabas.

16Mr Hood then began to punch the victim, and Mr Karabas tried to grab the wrench from Mr Hood.  Mr Sudmeyer, you then dropped your machete and you also started punching Mr Karabas.  Mr Karabas managed to push the men away and picked up the machete from the floor.  He then ran into the toilet cubicle and shut the door.  Mr Karabas panicked.  He used the machete to smash a number of the glass louvres covering the toilet window, he crawled out of the window and slipped on the pipe he was balancing on and fell five to seven metres to the ground below, as a consequence of which he suffered serious injury.

17The Crown, in the course of the plea hearing, confirmed that the court was not to take into account the fact that Mr Karabas suffered serious injury in the course of this event, it was just given as background or context material.

18Thereafter, Mr Kaufusi, you were seen on the CCTV footage holding a pole. Mr Hood put the metal wrench that he used in the armed robbery into your room.  That is the basis for Charge 2, assist offender.

19When arrested, the police found a small amount of methylamphetamines in
Mr Kaufusi's possession, and at the time of his arrest he was on bail, and that constitutes the basis for the summary charge.  Also at the time of
Mr Sudmeyer's arrest, he was on bail as well, so that constitutes the circumstances of the summary charge with respect to him.

20Dealing with Mr Sudmeyer first, I will sentence you on the basis of the material set out in the Crown opening.  There are a number of aggravating features.  The armed robbery occurred in company with Ali Hood and Anthony Gebhardt.  You were armed with the machete and Mr Hood was armed with the wrench that was used in the course of the armed robbery. 

21The victim has not filed a victim impact statement, but I am satisfied, having viewed the CCTV footage, that it would have been a terrifying experience to have been confronted by you and your co-accused.

22It is important when sentencing you that the court must emphasis both general and specific deterrence, and on behalf of the community, I must denounce your behaviour and also the protection of the community is also an important consideration. 

23I have had regard to your personal history and background.  There has been a lot of material provided to me in Dr Aaron Cunningham's report and also in the sentencing remarks of Judge Nixon and Judge Davis, who have previously dealt with you in this court.  I do not propose to go through that information in minute detail, but I have noted that you are a person who has a documented intellectual disability.  Your counsel specifically disavowed any reliance upon the Verdins principle, but nonetheless I have had regard to the fact that you are a person who has a known and documented intellectual disability.

24You were raised by your mother, who effectively was a solo parent.  She had her own drug and mental health issues, and you spent a lot of your childhood in foster care between the ages of nine and 15.  You have a history of having problems with anger and dealing with a sense of abandonment.  You have never had any relationship with your father.  I accept that you have had a difficult and unstable childhood and upbringing that has impacted upon you into your adult years.

25You were able to complete Year 10 with an integration aide, but you have a speech impediment and learning difficulties.  You left school at age 16 and have had some work in the past, but you have been unemployed for a number of years and you were on the disability support pension when you were living in the community. 

26You left home at age 18 and you have a long history of homelessness, and that has been demonstrated over the years, when you have had crisis accommodation and lived in numerous boarding houses.

27You have had problems on and off with your mother because of your history of violence towards her, and in the past there have been intervention orders.  Currently, you have a good relationship with your mother. She was present in court and has indicated her willingness to have you back home upon your eventual release.  She is, however, concerned about you not using drugs given your long history of drug and alcohol abuse and the problems that have stemmed from that.  You have used cannabis since age 14, and methylamphetamines has been a real issue for you since your twenties and, to a large extent, is reflected in the criminal history that I have referred to. 

28Overall, I consider you do have some good prospects for rehabilitation.  Given your current situation, you are in custody on protection, but nonetheless you have completed a Certificate II in Cleaning Operations and further negative drug screens have been produced to the court.  It is important that you have
re-engaged with your mother and you are currently drug-free, but that is in the context of a secure prison environment.

29I accept that your time spent in custody has been difficult, being held on protection because of bullying by others towards you.  I accept that given your intellectual disability that gaol is more onus for you.

30In sentencing you, I have had regard to your plea of guilty entered at the earliest stage.  I accept that the plea does have real utility.  You have saved the expense and cost of a trial and spared the witness - especially the victim, in this crime the trauma of having to come to court and give evidence.  Your sentence will be discounted accordingly.

31Mr McLennan submitted that a gaol term to be combined with a Community Correction Order was an appropriate sentence in all the circumstances, and he submitted that an assessment with a Justice Plan ought be considered.

32I have formed the view that the nature of the offending is such that such a disposition would not reflect adequate punishment for your offending, and further, I have had regard to your past history of non-compliance and non-engagement in respect to Community Correction Orders in the past, and so it is not appropriate.

33Your sentence will be one of a term of imprisonment to be served immediately.  I have allowed a non-parole period that is shorter than it would have otherwise been because of your efforts towards rehabilitation whilst you are in custody, taken together with the onerous conditions of your detention currently.

34I have had regard to the principle of totality.

35You have been in custody on remand in respect to this matter since 10 September 2016.  On 17 November 2016 you were sentenced for unrelated offences to an aggregate term of three months' imprisonment, which lapsed on 16 February 2017.  You, therefore, have spent 185 days in custody for this matter not including today's date, but I have also had regard to that other three month period as well.

36I will announce your sentence now, Mr Sudmeyer.

37On the one charge of armed robbery, you will convicted and sentenced to three years' imprisonment.

38In respect to Summary Charge 9, commit indictable offence whilst on bail, you will be convicted and sentenced to two months' imprisonment.

39I make an order for cumulation.  One month of the sentence imposed with respect to Summary Charge 9 will be cumulative upon Charge 1. 

40That makes a total effective sentence of three years and one month imprisonment. 

41I fix a non-parole period of 18 months. 

42I declare 185 days pre-sentence detention.

43I also make the following declaration pursuant to s.6AAA.  But for your plea of guilty, I would have imposed a term of imprisonment of four years and six months, to serve three years.

44I will make the Disposal Order sought.

45You can take a seat.

46Christopher Kaufusi, I will proceed to sentence you on the basis of the Crown opening.

47Your role in this offending was minimal.  You fall to be sentenced for moving a pole from the bathroom to your room and, when arrested, police located the metal wrench in your room.  You are not to be sentenced in respect to the armed robbery.  The prosecution agreed that it was offending that represents the lower level of offending of this type of offence. 

48In respect to the possession of the drug of dependence, I accept it was in your possession for personal use.  I note that you also offended whilst on bail, and that is an aggravating feature.

49Overall, I consider that your involvement in this incident demonstrates a lack of maturity and a real lack of judgment on your behalf.

50You were living at the Gatwick Hotel at the time of the offending, and your bedroom was located in a nearby hallway.  When the events leading to the armed robbery unfolded, you attended and undertook the offending that I have just described. 

51Your offending demonstrates to me a misplaced loyalty to the other co-accused who were fellow Gatwick residents.  However, your conduct since your arrest and remand have demonstrated that you do have insight and you can be a responsible person.  I have had regard to the fact that when you were interviewed you admitted that you had the drug in your possession for personal use. 

52I have also had regard to your personal history and background.  You are a person who has had an unremarkable background. You grew up in New Zealand with your Tongan parents, and you have had a good education.  You were educated to Year 12 at a grammar school in Auckland and then thereafter you have excelled in both basketball and rugby league, playing at a high level.  You have got an excellent work history and you are also involved with the Mascot Church Group, Sydney.

53You came to Australia at age 21 in 2001.  Your life, as I said, was unremarkable until 2012, when you ended a long-term relationship with Lauren Maloney, with whom you have a daughter, who is now eight years of age.  It is apparent, having seen your criminal history, that in the context of the break-up you were using drugs heavily, and that is reflected in the convictions that have been recorded and also the fact that you have had to undergo sentences in respect to drug-related offending in the past.

54Insofar as your situation is concerned, I have had regard to the fact you entered a plea of guilty at an early stage, and again I accept this is a plea of guilty that is of real utility.  There has been no trial and you have spared the State the expense of a trial.  You have facilitated justice, and your sentence will be discounted accordingly.  I am satisfied it reflects a degree of remorse. 

55You have good prospects of rehabilitation, and that is reflected in the evidence that is before the court about your real progress whilst you have been on remand.  You have undertaken and completed the six hour Ice Effects Program and a Certificate II in Cleaning Operations and a Certificate I in Construction.  You have been drug-free.  There are two urine screens produced to the court that are clear, and your application for a Peer Listener Position at Marngoneet Correctional Centre has been successful.  I am satisfied that you have utilised your time spent in custody in a very productive manner and that all is good for the future.

56You are in another relationship now with Renee Darmanin.  She was present in court, supporting you at the plea hearing, and has been visiting you regularly in gaol.  Upon your eventual release, you will be able to live with her at her mother's home in Altona Meadows.  You express a desire to obtain stable accommodation upon your release, and also you wish to re-establish your contact with your daughter.

57There are some pending matters, as I referred to earlier. 

58In sentencing you, I have had regard to the fact that you have been on remand for these matters since 12 September 2016.  I have had regard to the nature of your offending, my assessment of its gravity, and I intend to impose a short gaol term to represent the criminality involved.

59Mr Kaufusi, if you could please stand.

60In respect to Charge 2, assist offender, you will be convicted and sentenced to six months' imprisonment.

61Charge 3, possess drug of dependence, convicted to one month imprisonment.

62Summary Charge 11, commit indictable offence whilst on bail, convicted and sentenced to two months' imprisonment.

63I make the following order for cumulation.  One month of the sentence imposed on Summary Charge 11 is to be cumulative upon the six month sentence imposed in respect to Charge 2.  That is a seven month effective sentence.

64I declare pre-sentence detention of 214 days. I make the following declaration in respect to s.6AAA.  But for your plea of guilty, I would have imposed a term of imprisonment of 12 months, to serve 6 months.

65I make the disposal orders sought.

66There are two disposal orders.  One is in respect to the drugs and one is in respect to the black machete and the wrench.

67MR BALLEK:  Thank you, Your Honour.

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