Director of Public Prosecutions v Toleafoa
[2017] VCC 937
•11 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00411
Indictment No. G13348391
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KUKA TOLEAFOA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 June 2017 | |
DATE OF SENTENCE: | 11 July 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Toleafoa | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 937 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of armed robbery and six summary offences uplifted from the Magistrates’ Court
Legislation Cited: Crimes Act 1958, s75A; Criminal Procedure Act 2009, s145; Summary Offences Act 1966, s23; Road Safety Act 1986, s18(1), s7(3)(a)(ii) and s59(2)(c); Sentencing Act 1991
Cases Cited:R v Verdins; Buckley; Vo (2007) 16 VR 269; 16 VR 269; Munda v Western Australia (2013) 249 CLR 600; Bugmy v R (2013) 249 CLR 571; DPP v O’Neill [2015] VSCA 325; Phillips v R [2012] VSCA 140
Sentence: 3 years and 3 months imprisonment with non-parole period of 2 years 2 months. 6AAA declaration 5 years imprisonment with non-parole period of 3 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Trotman | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms C Beissmann | Victoria Legal Aid |
HIS HONOUR:
1
Kuka Toleafoa, you have pleaded guilty to the offence that on 4 December 2016, you robbed Julie Quan of certain money and at that time, had with you an offensive weapon, namely a screwdriver. The offence of armed robbery is contrary to s.75A of the Crimes Act 1958. It carries a maximum penalty of
25 years’ imprisonment.
2 Pursuant to s.145 of the Criminal Procedure Act 2009, the following summary charges were transferred to this court:
Charge 2, that you at Sunshine on 4 December 2016, did unlawfully assault Aseri Ratulevu. You have also pleaded guilty to such offence, which is contrary to s.23 of the Summary Offences Act 1966 and carries a maximum penalty of three months’ imprisonment.
Charge 3, that you at Sunshine on 4 December 2016, did drive a motor vehicle on a highway, namely Service Street, without being the holder of a driver’s licence or permit authorising you to drive such motor vehicle without being exempt from holding such licence or permit under the Regulations. You have also pleaded guilty to such offence, which is contrary to s18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of three months’ imprisonment or 25 penalty units.
Charge 4, that you at Sunshine on 4 December 2016, did use a motor vehicle on a highway, namely Service Street, such motor vehicle not being registered as required by Part 2 of the Road Safety Act 1986 and not exempt from registration under the Regulations. You have also pleaded guilty to such offence, which is contrary to s.7(3)(a)(ii) of the Road Safety Act 1986 and carries a maximum penalty of 50 penalty units, that is, for a subsequent offence.
Charge 5, that you at Ravenhall on 27 November 2016, being the driver of
a motor vehicle on a highway, did fail to stop the said motor vehicle when signalled to do so by a police officer. You have also pleaded guilty to such offence, which is contrary to s.59(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of ten penalty units for a first offence.
Charge 6, that you at Ravenhall on 27 November 2017, did drive a motor vehicle on a highway, namely Western Freeway, without being the holder of a driver’s licence or permit authorising you to drive such vehicle and without being exempt from holding such licence or permit under the Regulations. You have also pleaded guilty to such offence, which is contrary to s18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of three months’ imprisonment or
25 penalty units.
Charge 7, that you at Ravenhall on 27 November 2016, did use a motor vehicle on a highway, namely Western Freeway, such motor vehicle not being registered as required by Part 2 of the Road Safety Act 1986 and not exempt from registration under the Regulations. You have also pleaded guilty to such offence, which is contrary to s7(3)(a)(ii) of the Road Safety Act 1986 and carries a maximum penalty of 50 penalty units for a subsequent offence.
3 I was advised by counsel for the prosecution that there are no mandatory licence cancellation provisions for any of the driving offences. However, the court does have a discretionary power to suspend or cancel an offender’s licence, pursuant to s.89A of the Sentencing Act 1991.
Circumstances of the offending
4 Counsel for the prosecution submitted a summary of prosecution opening, setting out the circumstances surrounding your offending in relation to the various charges. Such summary has been marked as an exhibit, exhibit 1 and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
·You are presently 37 years of age and were 36 years of age at the time of the offence of armed robbery.
·The complainant in the armed robbery is Julie Quan, who was an employee at a Woolworths store (“the store”) located within the Sunshine Plaza, Sunshine.
·At approximately 10.15 am on 4 December 2015, the complainant was collecting excess cash from the registers, together with the store’s service manager, Tania Pabbineetu. The complainant collected the cash from the register and placed it in a blue freezer bag that she was carrying.
·When the cash collection was occurring, you entered the store and approached the complainant from behind. You pulled her arm carrying the freezer bag, saying to the complainant, “Give me the bag”.
·
Initially, the complainant thought it was a joke and turned towards you, at which point you said again, “Give me the bag”. You were holding
a screwdriver and pointed the screwdriver towards the complainant.
·
Tania Pabbineetu was standing next to the complainant and told her to let go of the bag, after which you pulled the bag off her arm and ran out of the store. The bag contained approximately $1,600 in cash.
Charge 1, the armed robbery.
·You ran towards the basement car park and a security guard on duty, Aseri Ratulevu, confronted you and yelled for you to stop. You responded, “Get the fuck away from me” and punched Aseri Ratulevu, causing him to punch you to the jaw and stomach. Charge 2, unlawful assault.
·You continued to run towards the basement car park, where you mounted a motorised scooter and you were punched to the head by Aseri Ratulevu while you were seated on the scooter, after which you rode the scooter from the carpark. Charge 3, unlicensed driving and Charge 4, using unregistered motor vehicle on the highway.
·You were arrested at your home address on 7 December 2016, some three days after the subject offending.
·At an earlier time on 27 November 2016, you had been observed driving the same motor scooter on the Western Highway at Caroline Springs. At that time you were not wearing a helmet and did not have the registration plate attached.
·Police attempted to intercept you by following you in a marked car and using the vehicle’s light, signs and PA, all of which did not cause you to stop. You looked back at the police car while travelling between 80 and 85 kilometres per hour. Police ultimately lost sight of you. Charge 5, failing to stop motor vehicle on request; Charge 6, unlicensed driving, Charge 7, driving an unregistered vehicle.
5 You were arrested and interviewed by police on 7 December 2016 and during the course of such interview you did state:
·You remembered attending the Sunshine Plaza, but did not remember what you did there.
·"I remember doing 'something bad' at Sunshine Plaza."
·"I remember the incident with the scooter on 27 November 2016."
·
"It was my scooter and I did not stop when directed by police because
I was scared."
6 Furthermore, during the interview, you identified yourself on the CCTV stills taken at the Sunshine Plaza.
7 Counsel for the prosecution tendered a DVD of the subject offending involving the armed robbery, Exhibit 5, which was viewed by the court.
8 You have been in custody since your arrest on 7 December 2016 and I was informed that as at, but not including 9 June 2017, you had served 184 days pre-sentence detention.
Prior criminal history
9 The Victorian Police Criminal History Report was tendered, Exhibit 2. Such report is extensive and I note the following:
(a)At the Dandenong Magistrates’ Court on 17 August 1999, you were convicted of failing to answer bail, possessing cannabis, using cannabis, and stating a false name and fined an aggregate sum of $250;
(b)At the Dandenong Magistrates’ Court on 24 August 1999, you were found guilty of theft, assaulting police on duty, reckless conduct endangering serious injury, criminal damage and resisting police or person assisting police. No convictions were recorded and the matters were adjourned for 12 months;
(c)At the Dandenong Magistrates’ Court on 15 October 1999, you were found to have breached probation and without conviction, fined $150;
(d)At the Dandenong Magistrates’ Court on 5 September 2000, you were found exceeding the prescribed concentration three hours within driving, learner drive without full licence and using an unregistered motor vehicle on a highway, all of which you were not convicted and fined an aggregate sum of $650;
(e)At the Melbourne County Court on 17 October 2000, you were convicted of rape and sentenced to a period of six weeks’ imprisonment, 46 days being declared as pre-sentence detention and thereafter, to
a community-based order for two years, to perform 250 hours of unpaid community work and to undergo assessment and treatment as directed;
(f)At the Melbourne Magistrates’ Court on 1 December 2000, there were variations to the orders made on 17 August 1999, 15 October 1999 and 5 September 2000 and you were ordered to perform community-based orders and perform various hours of unpaid community work;
(g)At the Dandenong Magistrates’ Court on 20 December 2001, you were convicted of theft, failing to answer bail and driving in a dangerous manner, to which you were sentenced to an aggregate period of two months’ imprisonment. You were also convicted of stating a false name when requested, resisting police, using an unregistered motor vehicle and as a learner, failing to have a qualified driver, all of which you were convicted and fined an aggregate of $705;
(h)At the Dandenong Magistrates’ Court on 20 December 2001, the community-based order made by the court on 1 December 2000 was cancelled and you were convicted of such offences and fined various amounts;
(i)At the Melbourne County Court on 5 February 2002, you were convicted of a breach of the community-based order made on 17 October 2000, in relation to the offence of rape and sentenced to two years’ imprisonment, with a non-parole period of nine months;
(j)At the Melbourne Magistrates’ Court on 19 March 2002, you were convicted of three charges of intentionally causing damage to property, assaulting police and escaping from custody from a police member and were sentenced to an aggregate period of five months’ imprisonment;
(k)At the Melbourne Magistrates’ Court on 19 August 2003, you were convicted of two charges of theft and fined an aggregate sum of $600;
(l)At the Dandenong Magistrates’ Court on 27 April 2004, you were convicted of robbery and sentenced to a term of imprisonment of one month, wholly suspended, pursuant to the then s.27 of the Sentencing Act 1991, for a period of 12 months;
(m)At the Melbourne Magistrates’ Court on 17 May 2005, you were convicted of driving while disqualified and failing to answer bail and the matter was adjourned for six months to 16 November 2005, on the basis that you continue to comply with medication, as prescribed;
(n)At the Frankston Magistrates’ Court on 2 November 2006, you were convicted of driving while disqualified, driving while your PCA was 0.5 per cent or more, three charges of theft from a shop, using an unregistered motor vehicle, failing to supply a number plate other than that issued, failing to answer bail and careless driving, for which you were sentenced to an aggregate period of eight months’ imprisonment, to be served by way of an intensive correction order with various conditions;
(o)At Sunshine Magistrates’ Court on 24 November 2016, you were convicted of theft from a shop, intentionally damaging property, criminal damage, committing an indictable offence while on bail, behaving in an offensive manner in a public place, failing to answer bail, making threat to kill, theft, unlawful assault, throwing a missile to endanger persons, and two charges of possession of cannabis, for which you were convicted and sentenced to an aggregate period of 49 days’ imprisonment.
Both counsel accepted that it was probable that the sentence of 49 days’ imprisonment represented time served as at 24 November 2016, as the subsequent offence of armed robbery occurred ten days later on
4 December 2016.
10 Also tendered as part of the prior criminal record, was your criminal record in Western Australia. Such document records:
(a)At Joondalup Magistrates’ Court, Western Australia, on 19 November 2007, you were convicted of a breach of police order and sentenced to a community-based order for six months with supervision;
(b)At Joondalup Magistrates’ Court, Western Australia, on 31 August 2009, you were convicted of failing to ensure that a child under 12 months was restrained and that you had no authority to drive. You were fined $500, with a disqualification of your licence for three months;
(c)At the Perth District Court of Western Australia, on 10 September 2009, you were convicted of:
(i)Aggravated robbery, for which you received a sentence of two years and six months’ imprisonment, from 22 May 2009;
(ii)Assaulting a public officer, for which you received a sentence of three months’ imprisonment, cumulative from 22 May 2009;
(iii)A further charge of assaulting a police officer, for which you received three months’ imprisonment, concurrent from 22 May 2009;
(iv)Being armed in a way that may cause fear, for which you were sentenced to three months’ imprisonment, cumulative from
22 May 2009;
(v)Breach of bail undertaking, for which you were fined $350;
(vi)Criminal damage, for which you were fined $1,000;
(vii)A further charge of criminal damage, for which you were fined $1,000;
(viii)Disorderly conduct in a public place, for which you were fined $150;
(ix) Possession of a prohibited drug, cannabis.
A total effective sentence of three year’s imprisonment from 22 May 2009 was recorded. There is no indication on the record about the non-parole period, but the comments of the sentencing judge indicates that the
non-parole was 18 months;
(d)At Joondalup Magistrates’ Court, Western Australia, on 25 September 2009, you were convicted of breaching a community-based order and imprisoned for one month, concurrent from 22 May 2009;
(e)At Perth Magistrates’ Court, Western Australia, on 18 June 2013, you were convicted of breach of bail undertaking, failing to obey an order given by an officer and possession of a prohibited drug, cannabis, for which you were fined a total sum of $250.
11 Counsel for the prosecution also tendered the sentencing remarks of the District Court of Western Australia in relation to your sentence for the offence of aggravated robbery and other associated offences, see Exhibit 6). I have read such sentencing remarks.
Victim impact statements
12 Counsel for the prosecution also tendered the following victim impact statements:
(a)Statement of Ms Quan, the shop assistant who was collecting the money at the time of the robbery, declared on 5 May 2017 (Exhibit 3);
(b)Statement of Mr Aseri Ratulevu, the security guard who you assaulted on leaving the store, declared on 3 May 2007 (Exhibit 4).
13 In her declaration, Ms Quan describes how, following the robbery, she initially experienced shock and worry, but continues to experience a feeling of being extra vigilant and suspicious of people in Sunshine when walking to and from her car, as well as working on the shop floor. In particular, she describes that she is less willing to interact with customers that she does not know, or people asking for donations in the street or in shopping centres.
14 In his statement, Aseri Ratulevu, describes that after the incident when he was assaulted, his enjoyment of coming to work has been, “Not there anymore”. He describes being emotionally insecure at any workplace, “Not knowing what is going to happen next.”
Your personal circumstances and background
15 Your counsel tendered the following material:
(a) Defence submissions (Exhibit A);
(b)Report of the consultant forensic psychiatrist, Dr Danny Sullivan, dated 26 May 2017 (Exhibit B).
16 Based on such exhibits and further submissions made by your counsel, I note the following:
·You were born in Apia, in Western Samoa in March 1980. In about 1986 you went to New Zealand and after three years in New Zealand, you came to Australia in 1989.
·You are one of four children, with an older married brother living in Brisbane who works as a cleaner; a younger married sister, who works in a factory in Dandenong; and your youngest sibling, a married brother with five children, who works as a truck tyre fitter.
·
Your parents are currently living in Samoa, but intend to return to Australia before the end of 2017. Both parents ordinarily work running
a family cleaning business in the western suburbs of Melbourne.
·You attended primary school in New Zealand briefly and on coming to Australia in 1989, you attended a primary school in Sunshine and thereafter, attended several secondary schools in the western suburbs of Melbourne, until leaving at the end of Year 10. On leaving school, you worked in various factories and also moved to Western Australia with your family and worked for your parents’ cleaning business in Joondalup in Western Australia, in your late-20s.
·You were married for about three years in your 20s and from that relationship, there are two daughters who are currently aged eight years and ten years old, both residing with their mother in Werribee. You have informed your counsel that you hope to re-establish some contact with them in the future.
·You reported to Dr Sullivan that your parents were generally physically abusive. In particular, you told Dr Sullivan that your mother stepped on your foot when you were aged two and this caused problems for nearly a year. You also described your father tying you up in the garage and whipping you with a hose, throwing boots at you and engaging in other physical abuse to punish you for any misdemeanours. You also reported to Dr Sullivan that in New Zealand, you had been subject to sexual abuse from the age of six to seven.
·Since leaving school, your accommodation has been unstable and that you have not worked since 2014, after which you have been receiving the Disability Support Pension.
·You have a history of psychiatric hospitalisation both in Victoria and Western Australia. You have also had a long-term diagnosis for schizoaffective disorder, coupled with poly-substance abuse.
·You have had issues with alcohol and drugs since a young age and in particular, in part due to the physical violence you suffered at the hand of your father. You have drunk alcohol since eight years of age, commenced using cannabis when you were 13 years of age, which led to various other substance abuses in your teenage years. You report that at that time of offending, you were using Ice.
The evidence of Dr Sullivan
17 Dr Sullivan interviewed you on 18 May 2017 in the Outpatient Clinic at the Marngoneet Correctional Centre and on 19 May 2017, had a further video conference for the preparation of his report.
18 Dr Sullivan obtained a detailed personal history and in particular, recorded that you had lived in shared accommodation, including boarding houses and also lived “on the streets” since stopping work in 2014. You informed the psychiatrist that you were unable to afford to live, despite the Disability Support Pension and had to steal or sell drugs to survive. Most of your social contact was with “bad people”, although you had contact with your family and did receive some visits from your brother. In particular, you told Dr Sullivan that you could not work for more than a “few hours at a time”, as you were unable to focus and in prison, although not working, you had applied for a job in the kitchen.
19 In particular, you informed Dr Sullivan that you had been hospitalised more than 40 times in relation to a psychotic illness, first diagnosed at the Thomas Embling Hospital. In particular, you reported that you had previous hospitalisations in Sunshine, including in the Secure Extended Care Unit at the Dandenong Hospital.
20 You have received anti-psychotic medication, some of which has had adverse effects, although you consider Diazepam to be somewhat beneficial.
21 Normally you would attend the Harvester Clinic on a community treatment order under the Mental Health Act 2014 and obtain treatment through that clinic, including long-acting injectable medication. Current medications are Zuclopenthixol Decanoate, long-acting injectable anti-psychotic medication, 600 milligrams a fortnight; Olanzapine, also an anti-psychotic tablet and Benztropine, for medication adverse effects.
22 You informed Dr Sullivan that if he had met you while you were unwell, you “Couldn’t talk properly, talking about Jesus”. You also reported past deliberate self-harm, involving running through and lying down in traffic, setting fire to your cell in the Melbourne Assessment Prison and attempting to hang or cut yourself. You described these events as occurring when you were both angry and depressed.
23 You also informed Dr Sullivan that you sustained a head injury when aged 13, as a result of your uncle beating you over the head repeatedly and you believed you may have suffered an acquired brain injury from overdosing on heroin. You have had, in the past, problems with shortness of breath, for which medication has been prescribed.
24 In relation to your substance use history, you confirmed that you first used alcohol at the age of eight and at problematic levels, from age 12 to 19, when you were drinking up to a slab of 24 cans per day. Currently you have not drunk for some time now. You commenced using cannabis at 13 years of age, consuming up to a quarter of an ounce per day, after which, from the age of 14, you intermittently used stimulants and most recently, ,methylamphetamine, that is ice, and told Dr Sullivan that this may have been associated with your deteriorating mental health.
25 You also informed Dr Sullivan that you have a history of heroin abuse, but denied previous treatment with methadone or other opiate substitutes and also had tried magic mushrooms and cocaine in your teenage years.
26 In particular, you informed Dr Sullivan that when bailed, shortly prior to the subject offending, you received no help and went back on drugs and back onto the street. During November 2016, after release from prison, you reported that you associated with drug-using friends and rapidly returned to the use of stimulants, opiates and cannabis. You reported that your offending was to obtain money for drugs and that, at the time of your offending, you were not taking medication for mental illness.
27 At the interview with Dr Sullivan, you were not participating in ongoing drug and alcohol programs, or performing urine drug screens, but indicated a willingness to do so.
28 Dr Sullivan noted from other documentation the following:
(a)At the police interview regarding the subject offending, you stated that you, “Knew you did something wrong at the Sunshine Plaza, but could not remember specifics”;
(b)Justice Health notes corroborated a diagnosis of schizoaffective disorder and noted an erratic mental state, but essential compliance with medication since being in custody. Your dosage of Depot was increased due to a deteriorated mental state and it was noted that, at times, you would threaten self-harm and in the past, had self-harmed while in prison;
(c)The notes also indicated that when you were in custody in November 2016, you were maintained in a management cell and on your release, you were referred to the Harvester Clinic at Sunshine and notification was changed with the pharmacy on 25 November 2016. On your return to custody on 8 December 2016, it appeared you had not attended, notwithstanding the community treatment order;
(d)Earlier discharge summaries from Eastern Health in 2007, noted diagnoses of schizophrenia and anti-social personality traits. Furthermore, discharge summaries from Monash University in 2008, noted diagnoses of schizophrenia, cannabis abuse and anti-social traits.
29 Dr Sullivan ultimately concluded, amongst other things, that:
(a)You have an established diagnosis of schizoaffective disorder, manifesting positive symptoms, including prominent grandiose and religious delusions and aggression;
(b)You have recurrent problems with poly-substance abuse of drugs of dependence which, most recently have involved cannabis, opiates and methylamphetamine;
(c)That it is “likely” that your traumatic upbringing has been associated with the development of severe substance use problems and that your chronic psychotic illness also predisposes you to substance use and difficulty desisting from this;
(d)Your current presentation is not suggestive of personality disorder and there is no indication of intellectual disability or other mental disorder;
(e)The subject offending occurred when you had defaulted on the follow-up options arranged by mental health staff at prison;
(f)Importantly, Dr Sullivan noted, that having considered all the materials, he did not consider that the mental order was causally associated with the alleged offending. In particular, he states:
“There is no indication that Mr Toleafoa was experiencing symptoms of mental illness which were associated with any impaired mental functioning and his level of intoxication at the time, could not be determined retrospectively. However, his chronic schizoaffective disorder is likely to have impaired his capacity for appropriate judgment.”;
(g)That you are managing well in prison and remain abstinent from substance use and compliant with medication. Dr Sullivan considers that your incarceration does not weigh more heavily on you due to your mental disorder, nor impacts negatively on your mental health;
(h)That you require indefinite treatment with anti-psychotic medication and possibly mood stabilisers in addition. This would involve you remaining abstinent from substance use and in the opinion of Dr Sullivan, warrants specialist addiction medicine review, due to your dual diagnosis of mental illness and substance use problems. He considers that you may benefit from prescription of opiate substitution treatment.
In particular, Dr Sullivan states:
“On this occasion, his release from prison was followed by immediate relapse into substance use and offending, without Area Mental Health Service intervention, despite referral. In the future, any release from prison will, in my opinion, require at
a minimum, stable accommodation, compulsory mental health treatment on a community treatment order under the Mental Health Act 2014, and monitoring of substance use. Without such a plan, I think it unlikely there will be any chance of success.
In the event of a community disposition such as a community correction order, he would benefit from judicial monitoring, stringent drug and alcohol treatment and rehabilitation conditions, as well as a condition mandating links to an Area Mental Health Service. Stable accommodation and meaningful occupation would also reduce the likelihood of relapse into substance use.”
Mitigating circumstances relied on by your counsel
30 It was submitted by your counsel that the following matters are relevant in mitigation of sentence:
(a)Your plea of guilty in relation to the offence of armed robbery was at the first committal mention and should be accepted to be at the earliest possible time. Such plea of guilty, so it was submitted, has utilitarian benefit, demonstrates remorse and a willingness to facilitate the course of justice and acceptance of responsibility. Your counsel also noted that you made admissions during your police interview;
(b)Your counsel referred to the opinion of Dr Sullivan, wherein he noted that you have a well-established condition of schizoaffective disorder which, “Is likely to have impaired your capacity for appropriate judgment”. Your counsel, relying on the well-known decision of R v Verdins; Buckley; Vo (2007) 16 VR 269 at paragraph [32], submitted that such condition reduced the moral culpability of your offending and that, accordingly, considerations of general and specific deterrence, although not eliminated in the sentencing matrix, should be moderated, and there should be lesser emphasis on denunciation;
(c)Your counsel referred to the transcript of proceedings when you were sentenced in relation to the earlier robbery in Western Australia on
10 September 2009. It was submitted by your then counsel, amongst other matters that:
“Mr Toleafoa is someone who is very much entrenched in drug, cannabis use and alcohol use. He’s grown up around it. All of his peers, social aspect, have all used substances. His father was an alcoholic who would consume, in the pre-sentence report, it refers to Mr Toleafoa referring to his father as drinking from dawn till dusk, or words to that effect, and that’s the environment in which he has grown up in.”
It was submitted by your counsel that such social disadvantage should be considered to reduce the weight given to general and specific deterrence and reference was made to the two High Court cases of Munda v Western Australia [2013] 249 CLR 600 and Bugmy v R [2013] 249 CLR 571.
(d)Although accepting that armed robbery is an “inherently serious offence”, your counsel submitted that your offending was not the “most serious example of this type of offence”, as it was not pre-planned, you did not attempt to conceal your identity, the weapon used was a household screwdriver and it was not a protracted incident. It was noted that the subject offending and the armed robbery offending in Western Australia was “indicative of your lack of cognitive awareness”, as both offences occurred in public places, with many potential witnesses and CCTV.
31 Ultimately, your counsel, having noted that at the time of the plea hearing you had served 184 days pre-sentence detention, submitted that it would be appropriate to sentence you to a combination sentence of imprisonment, followed by a community corrections order, which would have the benefit of implementing the matters Dr Sullivan refers to in his report. In the alternative, it was submitted that an immediate term of imprisonment must be imposed, with a non-parole period.
Response of the prosecution
32 Counsel for the prosecution accepted that there had been an early plea of guilty in relation to the offence of armed robbery. It was not conceded that any of the Verdins principles had application, although it was accepted, in general terms, that the principles established in Munda (op cit) and Bugmy (op cit) may well have application.
33 Counsel for the prosecution submitted that the armed robbery was serious offending and must be seen in the context that you committed such offence approximately ten days after being released from prison and that you have previously been convicted and sentenced to a similar offence. In such circumstances, counsel for the prosecution sought a period of imprisonment, involving a non-parole period.
Conclusion
34 The offence of armed robbery is a serious offence, as is made clear by the maximum penalty of 25 years’ imprisonment. I accept, as submitted by your counsel, that the subject offending was not the “most serious example of this type of offence”. In this sense, there would appear to have been little planning in relation to the offending, as you made no attempt to conceal your identity and indeed, the incident was not protracted.
35 However, you did see fit to bring and use a household screwdriver to enforce your demand that the complainant hand over the bag of money, in what must have been a frightening episode for her and the assistant. The victim impact statement of the complainant makes clear the ongoing concern that the complainant has been experiencing in interacting with customers.
36
It must also be borne in mind that such offending occurred approximately ten days after your release from prison for other offences. In this respect, I note the history obtained by Dr Sullivan, that notwithstanding that you were on
a community treatment order, you did not attend any clinic after your release and resumed the abuse of drugs and resumed your association with drug-using friends, ultimately leading to the subject offending. Again, you told Dr Sullivan that the offending was to obtain money for drugs.
37
Your criminal records in both Victoria and Western Australia record offending involving various theft, drug, violence, and driving offences. In particular, you were convicted of aggravated robbery on 10 September 2009 in the Perth District Court of Western Australia. At that time you were also convicted of various other offences involving assaulting a police officer, being armed in
a way that may cause fear, causing criminal damage and possession of cannabis. You were ultimately sentenced to a period of three years from
22 May 2009, with a non-parole period of 18 months.
38 I also note that your criminal records, both in Victoria and Western Australia, reveal that you have breached various community corrections orders and bail conditions over the years.
39
The offending involving the unlawful assault of Mr Aseri Ratulevu occurred, of course, when you were running to the basement car park, after committing the armed robbery. Mr Ratulevu, who was employed as a security guard, was doing no more than his job when he confronted you and yelled for you to stop. You responded by saying, “Get the fuck away from me” and punched Ratulevu to the jaw and stomach. You have previous convictions for unlawful assault on
24 November 2016, 19 March 2002, assaulting police, on 24 August 1999, assaulting police on duty.
40
Charges 3 and 4 involve you driving away from the armed robbery on
4 December 2016, at which time you did not hold a driver’s licence, and the motor scooter was unregistered. Charges 5, 6 and 7 relate to an earlier time, about one week prior to the armed robbery, when you were driving without licence, an unregistered vehicle and failed to stop when signalled to do so by
a police officer.
41 The driving offences obviously, are not as serious as that of the armed robbery, or even the assault. However, it must be noted again, your record includes many offences relating to the driving of a motor vehicle and particularly driving unregistered motor vehicles over a long period of time. Clearly enough, earlier sentences in relation to those offences have failed to deter you from such activity.
42 I do take account of the following matters in mitigation of any sentence:
(a)I accept that you pleaded guilty to the armed robbery offence at the earliest time, which had the utilitarian effect of saving the court the time and cost of a trial. See Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, your plea of guilty of the offence, obviated the need for the complainant to give evidence at a trial and to have to relive the circumstances of the offending in a public forum. It is always a question for the sentencing judge whether remorse or willingness to facilitate the course of justice and acceptance of responsibility, are to be inferred from a plea of guilty. See again Phillips v R (op cit) at paragraph [96]. I do consider that the evidence against you in this matter was very strong, bearing in mind the CCTV footage, but do accept that your early plea of guilty is some evidence of remorse and some of your answers in the record of interview would suggest that you were attempting to facilitate the course of justice;
(b)As I have already recorded, I do not consider the offending in relation to the armed robbery to be the most serious form of this offence, but it must be always borne in mind that although the period of offending was relatively short, the complainant and the assistant were exposed to you holding the screwdriver in close proximity, requesting that the bag of money be handed over;
(c)I note that Dr Sullivan was of the opinion that there was no indication that you were experiencing symptoms of mental illness which were associated with any impaired mental functioning at the time of offending and, indeed, there is no evidence of any intoxication at that time. Furthermore, Dr Sullivan was also of the opinion that incarceration would not weigh heavily on you due to your mental disorder, nor would it impact negatively on your mental health.
However, Dr Sullivan was of the clear opinion that your well-established mental condition of chronic schizoaffective disorder is likely to have impaired your capacity for appropriate judgement. On the evidence before me, I do accept that you have suffered this condition for
a reasonably long period of time.
In Verdins, the Court of Appeal expressly recognised that impaired mental functioning at the time of the offending, may reduce the offender’s moral culpability, if it had the effect of impairing the offender’s ability to exercise appropriate judgement. See R v Verdins & Ors (op cit) at paragraph [26]). In this sense, I consider that Principles 1, 2 and 3 of Verdins are enlivened, in that your moral culpability in relation to the offending is reduced, in distinction to your legal responsibility and accordingly, the concept of denunciation is less likely to be a relevant sentencing objective and the elements of general and specific deterrence, moderated as a sentencing consideration. However, I also take account that, given your past history and the nature of your offending, it is also relevant to take into account the protection of the community. In this respect, it is to be remembered that you re-offended ten days after being released from prison, during which time you failed the follow-up on the mental health plan prepared by authorities in prison. I should add that I do not take account and it was not argued, that Principles 4 and 5 set out in Verdins have any application;
(d)I also accept the submission that you have experienced much social disadvantage, as was submitted during the plea relating to the earlier robbery and also note the conclusion of Dr Sullivan, that your background was “reportedly of significant and severe physical, sexual and emotional abuse, migration and repeated moves between schools”. In such circumstances, I do accept that the principles enunciated in Munda (op cit) and Bugmy (op cit) are engaged.
In this respect, I refer to the High Court decision of Bugmy wherein, commencing at paragraph [41], the High Court, consisting of French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ stated:
“In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
It will be recalled that in the Court of Criminal Appeal, the prosecution submitted that the evidence of the appellant’s deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this court, the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
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 so, that an offender’s deprived background has the same mitigatory 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.”
Again, I consider that in determining appropriate sentences, account should be taken of your childhood deprivation which does impact, to some extent, on your moral culpability. In such circumstances, I consider that there should be some moderation of the sentencing aspects of denunciation and general and specific deterrence. But again, as I have recorded earlier, this must be balanced, as the High Court makes clear, against other sentencing considerations, such as the protection of the community.
43 After consideration of all these matters, I have come to the view that your prospects of rehabilitation are not good, although I accept that a regime as described by Dr Sullivan, may have some prospects of improving your chances of rehabilitation. Given your previous offending, particularly the earlier aggravated robbery and indeed, the various breached community corrections orders and the like, I do not consider it appropriate to order a community corrections order, but rather, an immediate period of imprisonment where, as suggested by Dr Sullivan, you can undergo a prison-based course involving drug and alcohol intervention.
44 Mr Toleafoa, please be upstanding:
(a) In relation to the offence of armed robbery, you are convicted and sentenced to a period of imprisonment of three years;
(b) In relation to Summary Charge 2 involving you unlawfully assaulting Aseri Ratulevu, you will be convicted and sentenced to a period of two months’ imprisonment;
(c) In relation to Summary Charge 3 involving you driving a motor vehicle on a highway without being the holder of a driver’s licence, you will be convicted and sentenced to a period of imprisonment of two months;
(d) In relation to Summary Charge 4, driving an unregistered vehicle and Charge 7, driving an unregistered vehicle, you will be convicted of each offence and sentenced to an aggregate fine of $250;
(e) In relation to Summary Charge 6, driving without a licence, you will be convicted and sentenced to a period of imprisonment of two months;
(f) In relation to Summary Charge 5, failing to stop a motor vehicle when signalled to do so by a police officer, you will be convicted and sentenced to a fine of $50.
45 The sentence of three years imprisonment in relation to the armed robbery, that is Charge 1, will be the base sentence and I order that one month of the sentence in relation to Summary Charge 2; one month of the sentence in relation to Summary Charge 3; and one month of the sentence in relation to summary Charge 6, be served cumulatively upon each other and upon the sentence imposed on Charge 1. The total effective sentence is three years and three months.
46 I order that you must serve a period of imprisonment of two years and two months before being eligible for parole. I declare that you have served 216 days in pre-sentence detention and such period should be administratively deducted. I will grant the disposal and forfeiture orders as sought by the prosecution.
47 I declare, pursuant to s.6AAA of the Sentencing Act 1991, that save for your plea of guilty in relation to the armed robbery offence, I would have sentenced you to a period of five years imprisonment, with a non-parole of three and a half years. Yes, anything to say, counsel?
48 MS ANDREWS: No. As Your Honour pleases.
49 MS McGRATH: No, Your Honour.
50 HIS HONOUR: Yes, very well. Any family here for the prisoner?
51 OFFENDER: No, Your Honour.
52 HIS HONOUR: No. Take the prisoner now.
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