Director of Public Prosecutions v Tokarahi
[2023] VCC 681
•02 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00277
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Jerome TOKARAHI |
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JUDGE: | His Honour Judge Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2023 (Plea); 02 May 2023 (Further Plea) | |
DATE OF SENTENCE: | 02 May 2023 | |
CASE MAY BE CITED AS: | DPP v Tokarahi | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 681 | |
REASONS FOR SENTENCE
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Subject:Armed Robbery and Kidnapping
Catchwords: Guilty plea – confronted victim with imitation handgun in street – low-mid-range – relatively young offender – limited criminal history
Legislation Cited: Crimes Act 1958 (Vic), ss 75A, 63A, 82; Sentencing Act 1991 (Vic), ss 5(2H) and 5(3); Migration Act 1958 (Cth), ss 501(3A), 501(6)(a), 501(7)(c), and 501CA.
Cases Cited:DPP v Enrico [2017] VCC 237; DPP v Irwin [2020] VCC 1183; DPP v Thompson [2020] VCC 411; DPP v Van Mourik [2018] VCC 901; R v Mills (1998) 4 VR 235; Worboyes v The Queen [2021] VSCA 169; Guden v R [2010] VSCA 196; Fady Wasif v R [2022] VSCA 192.
Sentence: Total Effective Sentence of two years and six months’ imprisonment, non-parole period of one year and three months; presentence detention 161 days
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Gang | Office of Public Prosecutions |
| For the Accused | Mr A Dickenson | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Jerome Tokahari, you have pleaded guilty to:
(a) one charge of armed robbery (charge one);[1]
(b) one charge of kidnapping (charge two);[2] and
(c) one charge of obtaining a financial advantage by deception (charge three)[3] (which is a rolled-up charge).
[1] Contrary to Crimes Act 1958 (Vic), s 75A.
[2] Contrary to Crimes Act 1958 (Vic), s 63A.
[3] Contrary to Crimes Act 1958 (Vic), s 82.
Circumstances of offending[4]
[4] The circumstances of your offending set out in the Summary of Prosecution Opening on Plea dated 13 April 2023 (Exhibit A).
2On 14 November 2022, at 10:46 PM, you got off a train at Noble Park Railway Station and walked towards your home. The victim of your crimes, Anmol Anmol, had gotten off the same train and was walking behind you.
3As the two of you were walking, you approached him in the Coles supermarket car park. It was around 10:52 PM.
4You asked him for his name and where he came from. Then, as you put an arm around his shoulder, you pulled an imitation semi-automatic handgun from your pants and said, “Give me your wallet. Otherwise I will shoot you”.
5Anmol told you he didn’t have a wallet.
6You put the handgun back into your pants, searched his jacket and pants and took his bank card, driver’s licence and Apple iPhone from his pants pocket (charge one – armed robbery).
7He offered you his jacket and backpack to let him go. You refused and told to come with you. You told him if he tried to run you would shoot him. You put an arm on his shoulder and forced him to walk with you to a nearby ATM (charge two – kidnapping).
8At the ATM, you demanded he activate his CommBank App and you used his phone to withdraw $500 from his account.
9You reset his phone and kept it.
10You told Anmol to go and not to look back. You told him if he looked back you would shoot him.
11He ran home.
12Next day, you used his bank card nine times to buy food, tobacco and clothing valued at $301.08 (charge three – obtaining a financial advantage by deception).
13Anmol reported the robbery to police next morning.
14CCTV cameras captured most of your movements when you robbed and kidnapped him.
Arrest and remand
15Police arrested you on 20 July 2022 at your home.
16You had Anmol’s driver’s licence in your wallet.
17You also had the tobacco pouch you had bought with his bank card and you were wearing the shorts and cap you had worn when you robbed him.
18At your home, police found the sneakers, which you were wearing when you offended, and clothing you bought with Anmol’s bank card.
19At interview, you admitted your crimes.
20You said:
(a) you were in “a bad headspace” that day;[5]
[5] Question (‘Q’) 71.
(b) you had no money;[6]
[6] Q 86.
(c) you were going home after catching a train to Noble Park;[7]
[7] QQ 76–84.
(d) you saw Anmol walking; at first, you just wanted to talk;[8] and
(e) you approached him in a “light manner”;[9]
(f) when he looked nervous[10] you took advantage of him;[11]
(g) you asked him for his wallet;[12]
(h) and took his phone,[13] his “ID card”[14] and his bank card;[15]
(i) you got him to log into his phone;[16]
(j) you told him to delete everything from his phone;[17]
(k) you saw his banking application;[18]
(l) you took him to the ATM;[19] and
(m) you got $500 through cardless cash.[20]
[8] Q 91.
[9] Q 834.
[10] Q 836.
[11] Q 837.
[12] Q 835.
[13] Q 106.
[14] Q 129.
[15] Q 130.
[16] Q 113.
[17] QQ 106–20.
[18] Q 100.
[19] Q 112.
[20] Q 97.
21You said, when you demanded his wallet, you pulled out a black toy gun[21] which looked realistic.[22]
[21] Q 342.
[22] Q 354.
22You said you told Anmol if he ran off he would get hurt.[23]
[23] Q 848.
23When police asked you what you would have done had Anmol run off you said “… to be honest I would have just left it coz it’s – too much attention”. You said you didn’t want any confrontation.[24]
[24] Q 851. You said you "wanted it to be nice and mellow": CQ 852.
24You said, next day, you used Anmol’s bank card to get an Uber to Dandenong Plaza where you used the card to buy clothing because you had none other than what you were wearing.[25]
[25] QQ 157–181.
25You admitted to you also bought food and smokes using Anmol’s card.[26]
[26] QQ 222–230.
26Police showed you several stills from the CCTV film which had captured your movements. You admitted they showed you with Anmol.[27]
[27] QQ 656–793.
27You were charged with armed robbery and other offences and remanded in custody.
28At a committal case conference, you pleaded guilty to the charges on the indictment.
Criminal history
29You have admitted a criminal record.
30In Mareeba Magistrates’ Court, on 10 April 2017, you were placed on a 12-month good behaviour bond for street offending.
31In the same court, on 22 January 2018 you were fined $300 without conviction for a summary offence.
32On 30 August 2019, at Dandenong Magistrates’ Court, you were placed on a three-year adjourned undertaking for intentionally cause injury. On the same day, in the Dandenong children’s Court, you were placed on a 12-month adjourned undertaking for shop stealing, handling stolen goods and failing to answer bail.
Personal circumstances
33You were born in February 1999. You were 23 years old when you offended you are now 24.
34You have a younger sister, Kahla.
35Your parents brought your sister and you to Australia when you were four to five years old.
36Your mother and father separated soon after.
37Your father lives near Cairns in North Queensland. He remarried and had two more children.
38Your mother also re-partnered and has had five more children.
39You describe your stepfather as a big drinker who was a violent disciplinarian. His aggression made you an angry kid. Your mother covered up his violence towards her and you.[28]
[28] Exhibit 2: Psychological Report of Carla Lechner, p 2.
40You grew up in Dandenong and attended local schools.
41Outside of school, you played rugby union for the Moorabbin Club. You were a helpful club member and officials[29] know you as a friendly, kind and polite young man.
[29] Exhibit 6: Reference of Sunia Kilgour and Exhibit 7: Reference of Brendan Todd.
42At secondary school, you had anger issues, swearing at teachers and punching walls, and were often suspended.
43You left school in Year 11 and roamed the streets because you couldn’t live at home.
44You went to live with your father in northern Queensland for two years and worked at a banana farm. After that, you returned to Melbourne and lived with your grandmother at Noble Park.
45In March 2019, your stepfather was jailed for violent offending. In January 2020, he was deported to New Zealand .
46While he was absent you worked at a Coca-Cola factory to help support your family.
47In August 2020, your mother returned to New Zealand with the younger children. Your sister and you chose to remain in Australia.
48After your family left, despite the pandemic’s impact on employment opportunities, you got casual work at KFC and then a warehouse.
49When you offended you were living with your grandmother. And you had irregular kitchen renovation work with a friend.
50You are a non-drinker but have abused cannabis for around five years. You told a psychologist, Carla Lechner, it made you “very paranoid”.[30]
[30] Exhibit 2: Psychological Report of Carla Lechner, p 4.
51Your sister knows you as a protective, loving, and caring person who has struggled with mental health and marijuana addiction. She wrote it was difficult for both of you when your mother and stepbrothers went to New Zealand. The two of you remained in Australia because you had grown up here and did not want to leave.[31]
[31] I was told you have never returned to New Zealand and have no memory of your early years there.
52You have maintained a good relationship with your sister and her two daughters who have missed you since you are imprisoned.[32]
[32] Exhibit 3: Letter of Kahla Tokarahi.
53Your mother wrote you worked hard to support your family when your stepfather was jailed in 2019. She confirmed you were distressed when she returned to New Zealand and, with increased drug use, your mental health declined. She described your offending as out-of-character and described you as remorseful.[33]
[33] Exhibit 4: Letter of Heather Olsen.
54Your paternal grandmother confirmed you father left the family when you were very young and “didn’t do a very good job of keeping in touch”. She wrote you felt lonely when you mother and siblings returned to new Zealand. She was also aware you had mental health problems. She described you as a good boy with a very big heart. She, like your mother, is confident, with support and help, you can get yourself back on track.[34]
[34] Exhibit 5: Letter of Terepai Tokarahi.
55Your stepfather also wrote a letter to the court.[35] He has been with your mother since 2003. He admitted he had an alcohol problem and was physically and mentally abusive to you throughout your childhood. He wrote, when you were 18 years old, you had had enough and left your family to live with your father near Cairns. Eventually, you returned home to Melbourne. He confirmed that, when he was jailed, as the oldest sibling, you worked hard to help to support the family. And, in January 2020, he was deported back to New Zealand and your mother and their younger children followed seven months later.
[35] Exhibit 9: Letter of Soul Sasulu.
56He wrote, he, and your mother, “encourage [you] to stay strong, to learn and to be remorseful for [your] mistakes and … [make] positive changes [to become] a better person”.[36]
[36] Ibid.
Psychological opinions
57Ms Lechner interviewed you on 16 March 2023.[37]
[37] Exhibit 2: Psychological Report dated 28 March 2023.
58At times, you were tearful, you rated your mood as 1/10 and reported suicidal thoughts. To psychological testing you presented as “likely to be severely psychologically distressed”. In her opinion, you meet the criteria for diagnosis of major depressive disorder.[38]
[38] Ibid.
59She recorded your history of complex developmental trauma. In her opinion, you suffer symptoms of complex PTSD, including chronic low self-esteem and hypervigilance to situational conflict and aggression.[39]
[39] Ibid.
60She noted you are inclined to channel internal distress through anger.[40]
[40] Ibid.
61You told her, when you offended, you were angry after an argument with your sister, and you saw Anmol as an “easy target” and took your anger out on him.[41]
[41] Ibid.
62You said, “no one deserves to be robbed … he probably thought the gun was real … that would be horrifying for him … I put myself in his shoes and it haunts me, why should innocent people feel like that”.[42]
[42] Ibid.
63Ms Lechner recommended treatment for “severe” psychological distress and unresolved symptoms of complex PTSD.
64You reported your mood has declined in prison. Ms Lechner noted persons with PTSD generally become more anxious and depressed in the prison environment.[43]
[43] Ibid.
Defence Submissions
65Mr Dickenson, who appeared on your behalf, in written[44] and oral submissions, acknowledged your offending was inherently serious.
[44] Exhibits 1 and 8.
66He submitted your offending was relatively unsophisticated considering—
(a) you made no attempt to disguise yourself; and
(b) you confronted Anmol in public areas under CCTV surveillance.
67And he submitted, considering the lack of sophistication; and
(a) your offending was of relatively short duration, some 13 minutes; and
(b) after you produced the firearm and demanded Anmol’s wallet, you put it back in your pants, rather than continue to menace him with it; and
(c) there was no actual violence or physical harm to Anmol;
I should assess your offending as low level.
68In mitigation of your penalty, he relied on:
(a) your early guilty plea for its high utilitarian value;
(b) your remorse, evidenced by your:
(i)cooperation with police when were interviewed;
(ii)guilty plea;
(iii)expressions of shame and regret to family and Ms Lechner;
(c) your relative youth;
(d) your limited criminal history;
(e) your poor mental health; and
(f) your risk of deportation.
69He submitted, considering your remorse, your relative youth, your limited criminal history, your good work history and your supportive family, your prospects of rehabilitation are “quite good”.
70He acknowledged imprisonment is the inevitable sentence for the kidnapping offence.
71He submitted the appropriate term should be “short sharp”.
72He submitted a community correction order could achieve all sentencing purposes for the offences of armed robbery and obtaining a financial advantage by deception.
73Before I sentenced you, Mr Dickinson made additional submissions in support of his contention your armed robbery is a low-level example of the crime.[45]
[45] Exhibit 8: Further Defence Submissions for Plea.
74He also referred me to several of the sentences of this Court for the offences of armed robbery and attempted armed robbery where the offender used an imitation handgun to threaten his victim.[46] In one, the court imposed a combination sentence;[47] in the others, community corrections orders.
[46] DPP v Irwin [2020] VCC 1183 (‘DPP v Irwin’); DPP v Enrico [2017] VCC 237; DPP v Van Mourik [2018] VCC 901; and DPP v Thompson [2020] VCC 411.
[47] DPP v Irwin.
Prosecution Submissions
75Ms Gang who appeared for the prosecution, submitted there are concerning aspects to your offending, namely:
(a) Anmol, who was a nervous[48] young man, walking alone, was an easy target;[49]
(b) you were carrying an imitation firearm, which looked real, and, intending Anmol should believe it was a lethal weapon, you threatened him you would use it;
(c) when you took the phone you deleted data from it so you could use it;
(d) you used it to steal money from his bank account;
(e) you dishonestly used his bank card; and
(f) while you robbed Anmol for need rather than greed, you unjustifiably took your anger out on him.
[48] As you told police.
[49] As you told Ms Lechner.
76She submitted, because of the seriousness of your offending, to give proper weight to general deterrence, a sentence of imprisonment with a non-parole period fixed is the appropriate one.
77She fairly acknowledged:
(a) you appreciated your wrongdoing:
(i)at the time of your offending;[50] and
(ii)at the time of your arrest;[51]
[50] As you told police when I questioned you.
[51] Demonstrated by your admissions to police.
(b) you gave full cooperation to police when they questioned you;
(c) you have demonstrated insight into your offending and remorse for it;
(d) your guilty plea was made early and has high utilitarian value; and
(e) because you are a relatively young offender, your rehabilitation is important.
78She acknowledged, given your relative youth and your limited criminal record there is “good space for your rehabilitation”.
Consideration
79The maximum penalties indicate the inherent seriousness of your offending.
80Kidnapping carries a maximum penalty of 25 years imprisonment. It is also a category two offence. The legislated sentence for kidnapping is a term of imprisonment unless a statutory exception is established.[52] Your Counsel did not argue any exception applied in your case.
[52] Sentencing Act 1991 (Vic), s 5(2H).
81Armed robbery also carries a maximum penalty of 25 years imprisonment.
82Obtaining financial advantage by deception carries a maximum penalty of 10 years imprisonment.
83While Mr Anmol chose not to make a victim impact statement, I have no doubt he was terrified when you produced the imitation handgun.[53]
[53] As you told Ms Lechner.
84It is concerning you were carrying the imitation handgun at all.
85He was an easy target, and you took advantage of him.[54]
[54] As you told police.
86You intended him to believe the handgun was genuine and lethal.
87Venting your anger on him was completely unwarranted.
88I accept your actions were impulsive. Your threatening behaviour was relatively short-lived. You did not physically harm your victim.
89I also accept you did not want confrontation and likely would not have persisted had Anmol resisted.
90I also take into account the proceeds of your robbery, $2399, while not insignificant, were not high.
91Overall, I assess the objective gravity of your armed robbery to be above low-range and nearer to mid-range.[55]
[55] Your counsel’s submissions emphasised the lack of physical violence but failed to give sufficient weight to the fact that you were carrying an imitation weapon which you used to threaten Anmol, intending he should believe it was potentially lethal.
92I also have to take into account the additional criminality of you forcing Anmol to the ATM in order take money from his bank account using his mobile phone App (kidnapping) and using the bank card you stole from him to buy personal items (obtaining financial advantage by deception).
93Your kidnapping of Anmol was part of a single episode which started when you robbed him. You used the imitation handgun to intimidate Anmol into giving up his belongings to you and to go with you to the ATM. Because it was part of a continuing course of conduct, I assess the objective gravity of kidnapping offence to be similar to the armed robbery.
94Considering the low value of the goods you purchased I assess the objective gravity of the deception offence as low-range.
Conclusion
95After careful deliberation, which includes consideration of the sentences to which Mr Dickenson referred,[56] I am satisfied the imposition of a prison term for the kidnapping, together with a community correction order in respect of the armed robbery and deception charges, would not meet all sentencing objectives, which include just punishment and general deterrence, as well as your rehabilitation.
[56] There are material differences between the circumstances of the offending and the offender between each of the cases and yours. For example, Damian Enrico in DPP v Enrico [2017] VCC 237 was convicted of the lesser offence of attempted armed robbery (nearly a three-year delay in sentencing, low culpability, DPP concession CCO within range); Jack Irwin in DPP v Irwin [2020] VCC 1183 was a first offender who had mental health conditions which enlivened the fifth limb of Verdins; Alex Van Mourik in DPP v Van Mourik [2018] VCC 901 (‘DPP v Van Mourik’) was a young first offender with an intellectual disability (DPP v Van Mourik, 5 [20]), who also was convicted of attempted armed robbery; Pele Thompson in DPP v Thompson [2020] VCC 411 (‘DPP v Thompson’) who was a young first offender (DPP v Thompson, 5 [19]) who had served 51 days in custody.
96There are a number of factors which I take into account to reduce your sentence.
97Firstly, by your early guilty plea, a trial has been avoided and you have spared Anmol involvement in the prosecution of these charges against you. You are entitled to a significant sentencing discount for the high utilitarian value of your plea which also attracts Worboyes considerations.[57]
[57] Worboyes v The Queen [2021] VSCA 169.
98Secondly, I accept—
(a) your cooperation with police;
(b) your early guilty plea; and
(c) your expressions of contrition—
show you are genuinely remorseful.
99Thirdly, I accept you suffer symptoms of PTSD, consequent upon complex developmental trauma, which contributed to you having channelled the distress of your argument with your sister into anger against your victim, albeit unjustifiably.
100I also accept, as a first-time prisoner with a mental health problem, you are suffering severe psychological distress.
101Fourthly, I accept the risk of deportation weighs heavily on you.
102You are a New Zealand citizen.
103The Migration Act 1958 (Cth) makes visa cancellation mandatory for an offender sentenced to one year of imprisonment or more, unless the relevant Minister is satisfied there is a reason to revoke the cancellation period.[58]
[58] Migration Act 1958 (Cth), ss 501(3A), 501(6)(a), 501(7)(c), and 501CA.
104You are at risk of being deported following imprisonment for these serious offences.
105I accept you are anxious about the prospect of deportation. And I accept this will make prison harder for you.
106I also accept it may result in you losing the opportunity to remain in Australia as you would otherwise wish.[59]
[59] Guden v R [2010] VSCA 196, [25]–[27].
107Fifthly, you were 23 years old when you offended. You are still relatively young.
108Your rehabilitation is a very important sentencing consideration.[60]
[60] R v Mills (1998) 4 VR 235.
109You have a limited criminal record. The penalties would indicate your prior offending is low-level.
110You have ongoing family support. Your sister supported you in court; your mother and stepfather supported you from New Zealand.
111Considering:
(a) your relative youth;
(b) your genuine remorse;
(c) your limited criminal history;
(d) your compliance with a previous three-year good behaviour bond;
(e) your good work history; and
(f) your family support—
I assess your prospects of rehabilitation as relatively good.
112I will fix a head sentence and non-parole period to mitigate punishment in favour of your rehabilitation.
113Because you are to be sentenced for a number of offences, which overlap, I have had regard to the principle of totality to ensure your total sentence is “a just and appropriate measure” of your total criminality.[61] Totality is achieved by making sentences concurrent wholly or in part.
[61] See Postiglione v The Queen (1987) 145 ALR 408, ss 416–417 and 442–43.
114Parsimony is another relevant sentencing principle. I must not impose a sentence that is “more severe than that which is necessary to achieve the … purposes (of sentencing)”.[62] In other words I must impose a sentence that is no more than that which is appropriate to your offending, taking into account all relevant circumstances, including your personal circumstances.[63]
[62] Sentencing Act1991 (Vic), s 5(3).
[63] Fady Wasif v R [2022] VSCA 192, [45].
115By the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
116Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,
(a) On charge one – armed robbery, you are sentenced to a term of imprisonment of two years. This is your base sentence.
(b) On charge two – kidnapping, you are sentenced to two years’ imprisonment
(c) On charge three – obtaining financial advantage by deception – $301.08 you are sentenced to one months’ imprisonment.
117I direct six months of your sentence on charge two be served cumulatively upon your base sentence.
118While your offending in relation to charge three does involve additional criminality, applying the totality principle, I direct your sentence on charge three is to be served concurrently with your sentences on charges one and two.
119Your total effective sentence is two years and six months.
120And I fix a minimum period of one year and three months before you are eligible for parole.
121I declare you have already served 161 days in custody by way of presentence detention.
122While there is some artificiality to the process, I declare, but for your plea of guilty I would have sentenced you to three years and nine months imprisonment and fixed a minimum non-parole period of two years and six months.
123I make an order for forfeiture of an Apple iPhone and phone case, with two T-shirts and a pair of shorts, which you had purchased with Anmol bank card.
124I also make an order you pay Anmol Anmol compensation in the sum of $2399.
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