Director of Public Prosecutions v Tuati Enua

[2018] VCC 253

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑17‑02065

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUATI ENUA

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2018
DATE OF SENTENCE:	8 March 2018
CASE MAY BE CITED AS:	DPP v TUATI ENUA
MEDIUM NEUTRAL CITATION:	[2018] VCC 253

REASONS FOR SENTENCE
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Subject:  Attempted Armed Robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                 1 year and 232 days imprisonment.  2 year Community Correction
  Order.

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APPEARANCES: For the Director of Public	Counsel	Solicitors
Prosecutions	Mr A. Trotman
For the Accused	Mr J. Anderson

1HIS HONOUR:  You have pleaded guilty to a charge of attempted armed robbery of the Commonwealth Bank of Dandenong on 13 July 2017.  The maximum penalty for this offence is 20 years' imprisonment.  You have also admitted prior convictions from four previous court appearances in the Dandenong Magistrates' Court; those offences are mostly drug-related.  At the time you committed the offence you were subject to a community corrections order imposed on 27 February 2017 for possession and trafficking cannabis.

2The circumstances of your offending are set out in the summary of prosecution opening dated 30 January 2018 which was tendered in evidence and read in open court by the prosecutor, Mr Trotman.  Your counsel, Mr Anderson, told me that the summary was accurate and forms a proper factual basis upon which I can pass sentence upon you.  It is not necessary that here repeat that which is set out in the summary except in an abbreviated way.  These sentencing remarks should be read in conjunction with what is set out in the summary.  Your attempt to rob the bank was also captured on closed-circuit security surveillance, which was tendered in evidence.

3At about 2.30 pm you entered the bank wearing sunglasses, a baseball cap, white cotton gloves and a black, hooded leather jacket; the hood was pulled over your head.  You joined a queue and waited for a teller to serve you.  Whilst in the queue you were asked to remove your hood to reveal your face, which you did.  You approached the teller and said, "I want money" and you handed her a note that said,

"Hi, I need you to fill up this bag with money slowly and quietly or I will shoot you.  Please.  I don't want to hurt anyone, just need the money then I'm going.  And I also have a taser in my hand, so please hurry and don't panic."

4You then threw a grey plastic bag across the counter.  At the time that you did this you were holding a light blue coloured taser in your right hand which looked like a torch.  The teller pressed the duress button which activated security screens which then went up securing the teller area.  You ran from the bank into Dandenong Plaza.  At the time of the offence you were not actually armed with a gun, only the taser, but from what you said to the teller in your note in writing there was a clear implication intended by you that you were armed with a gun and this intended by you to put the teller in fear.  What you did achieved this purpose.

5I received into evidence a victim impact statement from the teller which evidences the profound effect upon her which your crime has had, and in sentencing you I must take that into account, which I have done.  The CCV footage also shows the teller appearing distraught:  immediately the protective screens were activated and being comforted by her colleagues.  You were arrested five days later after police came to your home and searched it under warrant.  They found the clothes that you wore and items used by you including the taser.

6When interviewed you made full admissions to the police.  You also told the police that you had been on medication and that you were hyper stressed.  You have remained in custody.  As at the time of the plea you had completed 227 days' presentence detention.  You have pleaded guilty to the charge and indicated that you would do so at a committal case conference.  I treat you as having indicated that you would plead guilty at the earliest possible opportunity.

7Because you have pleaded guilty you are entitled to a reduction in sentence and this will be reflected in the sentence that I'll shortly pass.  By your plea of guilty you have saved the time and cost of a trial.  Also, I treat your plea of guilty as evidence of remorse on your part for your crime.  Mr Anderson filed the detailed submission with the court, which I marked as Exhibit 1.  He acknowledged that armed robbery is a serious offence and that your offending had the consequences of instilling fear into the victim, in this case the teller.

8However, he argued your offending was exceptional in that it lacked sophistication and planning.  He described it as "audacious but inept and foredoomed to fail".  He pointed to the fact that you went ahead despite being told to remove your hood, and you left your fingerprints on the note.  Whilst I accept there were a number of features of your offending which with hindsight meant it was inevitable that you would be apprehended.  Nevertheless, there also existed a number of features of planning and thinking by you to ensure that you robbed the bank of money:

9You did attempt disguise; you did wear gloves, you did carry a laser, you did write the note which carried with it the implication that you had the ability to shoot the teller.  I also accept that your offending was characterised by persistence.  Even though you had been alerted to the fact you were being watched, you went ahead regardless.  I form the view that your offending is between mid and low range for this kind of offence.  It does not fall at the bottom of the range.  At the heart of the offence is the intent to instil fear by threat and the presence of a weapon, and you certainly did that in this case.

10I received into evidence two reports from Professor Carol, a psychiatrist, and a report from Dr Matthew Stayus, a clinical neuropsychologist who conducted psychological testing of you.  You told both experts that you had previously had a number of voluntary admissions to Dandenong Hospital suffering from mental illness and that you had been provided with medication for your mental illness which you had not been taking at the time you offended.

11A breach report related to your breach of your community corrections order, also exhibited, shows that you were admitted to the psychiatric unit at Dandenong Hospital on 6 June suffering from what is described as, "Psychosis and post-psychotic depression" for which you were prescribed daily medication.  You told Professor Carol you had been taking prescribed medication for several months prior to this offending.

12Professor Carol thought it most likely that you suffer from relapsing psychotic illness, most likely schizophrenia from which you are currently in full remission having been treated in custody with the prescribed drug, Olanzapine.  Professor Carol gave the opinion that there was no good evidence that your psychotic illness had any clear relationship to your offending which he said was driven by despair and distress due to your financial predicament allied with a degree of impulsivity.

13Importantly Professor Carol also thought you have appropriate insight into the wrongfulness of your criminal conduct and you are remorseful.  I accept the evidence of Professor Carol.  Accepting this evidence, Mr Anderson did not submit that Verdins principles apply in sentencing you, but he stressed your likely psychiatric illness remains a feature that must be taken into account in my overall assessment of you and in arriving at an appropriate sentence.  I accept that to be the case.

14Dr Stayus carried out psychological testing of you.  He gave the opinion you have a low-average to average range of intellectual functioning.  He thought you have limited ability to weight the consequences of your actions or to exercise appropriate judgments and problem solving.  You are aged 25.  You are one of nine children.  Your parents came to Australia from New Zealand when you were aged 16.  You were born in the Cook Islands.  You remain a citizen of New Zealand.

15You have one older brother who presently resides in New Zealand, but he will soon come to Australia, in the result you will have no family left in New Zealand.  You left school after Year 10, aged 17.  I was told and accept your parents physically disciplined you and they were verbally abusive.  Both drank alcohol to excess.  You have had work doing unskilled labouring-type work, but that has been spasmodic, especially since your first admission to a psychiatric ward in 2015.

16At the time of this offending you were living with your father, your mother having passed away and other family members and required to contribute financially.  You had applied for social security benefits from New Zealand, but this had not been granted, and you stressed over your poor financial state which prompted this offending.  The fact you were driven by despair and distress due to your financial predicament explains your impulsive act in committing this offence, but it does not excuse it.

17You have a past history of cannabis abuse.  In 2015 after your admission to the psychiatric ward at Dandenong Hospital you were diagnosed with drug-induced psychosis.  I was told and accept that you were not affected by cannabis at the time of this offending and that you remain drug-free in a custody context.  Mr Anderson in his written submissions pointed to the risk that you may be deported to New Zealand when you have completed the sentence I will impose.

18I accept that because of the position you find yourself in there exists the possibility that you will be deported, and this may well weigh heavily upon you whilst in prison making your time in prison more burdensome for you.  This is especially so in your case because all of your family will be in Australia.  The fact you may not be able to settle permanently in this country may be a serious punishing consequence of your offending.

19In arriving at an appropriate sentence I have taken all of this into account.  In his submissions as to appropriate disposition, Mr Anderson asked that I impose a community corrections order combined with a term of imprisonment rather than impose a term of imprisonment and fix a non-parole period.  This would mean that the maximum term of imprisonment that I could impose after deduction of any pre-sentence detention would be confined to one year imprisonment.

20In most circumstances, because of the seriousness of your offending, I would not consider this to be sufficient time in prison to satisfy the principles of sentencing applicable here, namely deterrence both general and specific, denunciation, your rehabilitation and importantly protection of the public.  However, in this case I have concluded that a combination sentence of a term of imprisonment in addition to the time that you have served by way of pre-sentence detention and appropriately framed community corrections order can achieve the purposes of sentencing, especially in assisting you to achieve full rehabilitation.

21Whilst I am cautious because you have previously been the recipient of a community corrections order and breached it, you have now been in prison for 232 days and you will serve a further 12 months under the sentence I will shortly pass.  I am hopeful this will make you see the error of your ways.  In addition, to further try to ensure that you remain committed to a full rehabilitation I provided for judicial monitoring by me so as to ensure that you are kept accountable.

22I note that in reaching the sentence I will impose, the prosecution agree that the kind of sentence submitted for by Mr Anderson was viewed by the prosecution as being within the range of sentence that I should impose in this case.  On the charge of attempted armed robber you are convicted and sentenced to a term of imprisonment of one year and 232 days.  In addition, I impose a community corrections order with conviction for a period of two years commencing immediately upon your release from prison.

23There will be conditions for supervision and that you undergo programs and treatment for mental health and drug abuse and to prevent reoffending.  There will also be a condition for judicial monitoring.  I declare that there has been 232 days pre-sentence detention under the sentenced passed this day and the 232 days be reckoned as having been already served and be entered into the records of the court and deducted administratively.

24For the purposes of s.6AAA of the Act, I state that had it not been for your plea of guilty to the charge, I would have imposed a total effective sentence of three and a half years and I would have fixed a non-parole period of two years and four months.  I have been asked to sign disposal orders, which were not opposed, and I have signed them.  And there any questions arising out of that?

25MR ANDERSON:  No, Your Honour.

26COUNSEL:  No, Your Honour.

27HIS HONOUR:  Mr Enua, the effect of all that is that you'll be returned to prison for 12 months, at the end of which you'll be released on a community corrections order, if you agree.  You understand?

28ACCUSED:  Yes.

29HIS HONOUR:  Now, there are conditions of that community corrections order that are designed to help you to fully rehabilitate yourself.  There are no conditions for unpaid community work, only conditions relating to your supervision by corrections and that you engage in programs to assist you with your mental health mainly.  Do you understand?

30ACCUSED:  Yes.

31HIS HONOUR:  You'll also have to come in periodically to be what's called judicially monitored by me, which is really a check-up every three or four months to ensure that you're complying with the terms of your community corrections order, but it means whilst you're on that order that you must not reoffend in any way.  Do you understand that?

32ACCUSED:  Yes.

33HIS HONOUR:  Now, do you agree to enter into the terms of the community corrections order – terms of the community corrections order?

34ACCUSED:  Yes.

35HIS HONOUR:  Very well.  Did you want to confer with your client, Mr Anderson, just to ensure that he understands that?

36MR ANDERSON:  Yes, thank you, Your Honour.  Yes.

37HIS HONOUR:  Very well.

38MR ANDERSON:  That's understood, Your Honour.

39HIS HONOUR:  Could you approach your client and have him sign the ‑ ‑ ‑ 

40MR ANDERSON:  Thank you, Your Honour.

1. HIS HONOUR:  Could you take Mr Enua back into custody, please

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