Director of Public Prosecutions v Tufuga
[2016] VCC 599
•13 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01924
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH TUFUGA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 6 May 2016 | |
DATE OF SENTENCE: | 13 May 2016 | |
CASE MAY BE CITED AS: | DPP v Tufuga | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 599 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – two charges of theft – one charge of armed robbery and two charges of possessing a drug of dependence
Legislation Cited: Section 74, s.75A of the Crimes Act 1958; s.73 of the Drugs, Poisons and Controlled Substances Act 1981; s.75 of the Criminal Procedure Act 2009; s.30B Bail Act 1977; Sentencing Act 1991; s.78(i) Confiscation Act 1997
Cases Cited:Phillips v The Queen [2012] VSCA 140; Boulton & Ors v The Queen [2014] VSCA 342; The Queen v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] 35 VR 43
Sentence: Time served and 4 year CCO order with conditions including work hours; Aggregate fines.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms G. Overend | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr W. Barker | David Barrese & Associates |
HIS HONOUR:
1 Joseph Tufuga, you have pleaded guilty to the following offences:
Charge 1 – that you, at Maribyrnong in Victoria on 5 July 2015, stole three “NBA” jersey’s, being property belonging to Rebel Sport Limited.
The offence of theft is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2 – that you, at Point Cook in Victoria on 13 July 2015, robbed Malleshwar Banka (“Banka”) of approximately 50 packets of cigarettes and $500, and at the time had with you an offensive weapon, namely scissors.
The offence of armed robbery is contrary to s.75A of the Crimes Act 1958 and carries a maximum penalty of 25 years’ imprisonment.
Charge 3 – that you, at Maribyrnong in Victoria on 10 August 2015, stole a pair of Tommy Hilfiger pants and six pairs of Tommy Hilfiger underwear, being property belonging to Myer Pty Ltd.
The offence of theft is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 4 – that you, at Maribyrnong in Victoria on 10 August 2015, had in your possession a drug of dependence, namely, cannabis L.
The offence of possessing cannabis L (small quantity) is five penalty units.
Charge 5 – that you, at Maribyrnong in Victoria on 10 August 2015, did have in your possession a drug of dependence, namely buprenorphine.
The offence of possessing a drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of one year’s imprisonment or 30 penalty points.
2 At the plea hearing of this matter on 6 May 2016 you consented, pursuant to s.145 of the Criminal Procedure Act 2009, that the following summary offence be transferred from the Magistrates’ Court to the County Court. You pleaded guilty to:
Charge 8 – that you, at Maribyrnong on 10 August 2015, did commit an indictable offence of theft from shop while on bail.
Such offence of breaching bail is contrary to s.30B of the Bail Act 1977 and carries a maximum penalty of three months’ imprisonment.
3 The prosecution has provided a written summary of the circumstances surrounding your offending. 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:
(a)You are 24 years of age, having been born in December 1991, and were 23-years-old when the offending occurred;
(b)On 5 July 2015, at approximately 2.00pm, you went to Highpoint Shopping Centre, Maribyrnong and entered Rebel Sport. You took three NBA jerseys, valued at $360, from the store and put them in a duffle-bag after you left the store without paying for such items. The offence was captured on CCTV (Charge 1);
(c)On 13 July 2015, at approximately 4.40pm, you entered a 7-Eleven in Point Cook, wearing a green and black mask over your face, black gloves and black Adidas track pants;
(d)Banka was working at the 7-Eleven and serving a customer at the counter. Initially you stood in line behind some other customers, but after a few moments you ran past the customers and jumped over the counter through the security wires;
(e)You pulled out a pair of scissors and said, “give me the cash, where is the cash?”
Banka said “don’t hurt me, I will give you what you want”, during which time you were holding the scissors to Banka’s neck;
(f)You told Banka to open the cash register and then to hold the bag open for him, in which you placed cigarettes (obtained from a cabinet behind the register) and approximately $500 in cash from the register (Charge 2);
(g)You then tried to open the safe drop, which was locked, and again said to Banka “where is the cash?”, to which he replied “there is no cash anymore”;
(h)You took more cigarettes from another cabinet and pointed to a second cash register stating “open that one”. You were behind the console area for about one-and-a-half minutes and the offending was captured on CCTV, which was tendered (Exhibit 3);
(i)On leaving the 7-Eleven store, you hid in the backyards of various homes and noticed a police helicopter overhead. You changed tracksuit pants and hid the pair you were wearing at the time of the robbery in a pot-plant. You placed the bag containing the cash and cigarettes in a wheelbarrow, concealing it with your jacket, pretending to be gardening in the yard;
(j)You jumped fences, ending up in another backyard, and after having a conversation with an owner of one of the properties, called an associate, collected your bag and made your way to St Albans;
(k)On 28 July 2015, you were bailed on unrelated matters;
(l)On 10 August 2015, you attended Myer, situated at the Highpoint Shopping Centre. You took two boxes of underwear, removing the underwear from the boxes and placing them into the front of your pants. You left the Myer store without paying for the items and were subsequently followed by staff from Myer, who confronted you and escorted you to an office. At the office you removed a pair of Tommy Hilfiger pants from underneath your own jeans, and the items taken were valued at $140. Again, the offending was captured on CCTV (Charge 3 and Summary Charge 8);
(m)Police were contacted and attended at Myer shortly thereafter. You were arrested and searched and during such search police found a small amount of cannabis and buprenorphine on your person (Charges 4 and 5).
(n)After your arrest on 10 August 2015, you were taken to the Fitzroy police station, where you participated in an interview with police. During such interview you made “full admissions” and said, in relation to the armed robbery that:
· Before the armed robbery – I got into John’s car and asked him if I could borrow some clothes because I was going to do the armed robbery;
· While I was at John’s, I had the idea I am going to do the armed robbery;
· I asked John what was the easiest place if I was to rob it, I could get away … and he told me this place;
· John said it was an open space, so that was something that I thought I could move on;
· The mask was mine, I got it from a mate;
· I’ve been thinking about doing this sort of thing for a bit. At that time I was homeless. I had no money, no clothes;
· I was going to rob the bottle-shop, but someone spotted me so I went back to the 7-Eleven;
· I entered the store … stood in line … jumped through the wires and demanded cash … after I got cash I turned to see the cigarettes and started loading the cigarettes into my bag. I exited the store … I noticed normal citizens were following me … I started jumping fences and just thought I would lay low for a bit;
· I used a pair of scissors;
· I buried the scissors in the back of one of the yards under stones;
· I came across a few construction sites where I had dumped some of my clothing and found a box to stash the cigarettes. I dumped the bag as well;
· Next day I went to Broadmeadows to get rid of the cigarettes. I got a couple of hundred for them.
4 After your arrest on 10 August 2015, you were remanded in custody until 22 October 2015, a period of 73 days.
5 Counsel for the prosecution accepted that you entered a plea of guilty at the earliest possible occasion – that is, at a committal mention conference on 4 November 2015. Although there was no Victim Impact Statement from Banka, reference is made by counsel for the prosecution to the statement of Banka contained within the depositions, wherein he states that he was “very fearful” of you and was not sure what you were “going to do with him”.
6 I viewed the CCTV footage of you performing the armed robbery on 13 July 2005 (see Exhibit 3). The video clearly shows you initially standing in a line of customers, and then quickly jumping over the counter through the security wires and confronting Banka. It is also clear that you pulled out a pair of scissors and held them very close to the neck of Banka. The speed of your actions, the production and use of the scissors, and your demand for cash, no doubt gave rise to a very frightening situation.
Your criminal history
7 The prosecutor tendered your criminal record (Exhibit 2), and you agreed that the contents of such documents are correct. I note the following:
(a)On 1 April 2014, you were convicted of various driving offences, and failure to answer bail, all of which you were fined an aggregate of $1,500 and your licence cancelled with a disqualification period for six months;
(b)On 30 January 2012, at Broadmeadows Magistrates’ Court, you were convicted of theft from a shop (shop steal) and fined $250;
(c)On 17 November 2008, at the Sunshine Magistrates' Court, it was found you entered a building with intent to steal and, without conviction, you were placed on a probation for a period of 12 months.
8 I was also informed by counsel for the prosecution that subsequent to being bailed for these offences on 22 October 2015, you were subsequently charged for unlicensed driving occurring on 1 January 2015, possession of cannabis on 28 July 2015 and resisting police following a verbal altercation at a McDonald’s drive-through, in company with another person, on 4 February 2016. At the time of the incident on 4 February 2016, you were apparently found in possession (in the vehicle) of ecstasy and heroin, but such drugs did not belong to you.
9 These matters came before the Magistrates Court on 1 March 2016, when you were sentenced to a community correction order in relation to those other matters. At that time, you had spent 26 days on remand, which were not declared as pre-sentence detention, given that you were placed on a community correction order. Counsel for the prosecution submitted that it would be open to this Court to take those 26 days into account in relation to any sentence of this Court.
10 The community correction order made on 1 March 2016 was tendered (Exhibit A). Such order runs for 12 months and, beyond the normal conditions, has the further conditions of you being supervised, performing 150 hours of community work and undergoing treatment and rehabilitation in relation to drug use dependency, and any offending behaviour programs as directed.
Your personal circumstances, education and vocational background
11 Your counsel also tendered various character references from Tala Tufuga (your younger sister), dated 5 May 2016; Tom Tufuga (your older brother), dated 5 May 2016; your mother, dated 5 May 2016, Alena Tufuga (the wife of your brother Tom), dated 5 May 2016 and from Jim Aspo, representative of Total Transport.
12 Based partly on these references and, more particularly, by the various submissions made by your counsel, I note:
(a)You were born in New Zealand and have five siblings – your older brother, Tom (who gave evidence before the court), who is married and in fulltime employment; two younger brothers, Matthew and Junior, who attend high school, and two younger sisters, one of whom, Katrina, is studying fire-fighting and works as a part-time waitress, and the other, Tala, is aged 14 and attends high school. Your father, Saua, works as a fulltime supervisor, and your mother, Otila, works in a warehouse in packaging;
(b)You attended primary school in New Zealand, and on moving to Australia you attended a number of schools, due to the family moving around to cater for your father’s employment. On completing Year 11, you left school to enter the workforce. Over your school years, you enjoyed sport, playing both rugby and Australian rules football for your school, and also boxed for many years;
(c)Together, with your family, you have been a regular church-goer since you were young, and you continue to attend church and were apparently involved in raffles and other fundraisers to support your church.
(d)You have had reasonably regular employment, being involved with seemingly truck driving and manual handling work. In particular, I refer to the reference from Jim Aspo from Total Transport, where you were working until such time you were arrested for your subsequent offending. In particular, Aspo states that you have shown “great progression in all areas of work, his willingness to help others and friendly nature has established himself as an integral part of our team”’. In particular, he also notes that because of your hard work and willingness to go beyond what is required, you were made employee of the month for the month of January 2016.
(d)You are in a de facto relationship with Alex Timothy and have two children from that relationship; Marcel, who is 18 months old, and a very recent addition, Alaska, who is one week old. It is intended that Alex will be a “stay-at-home” mother, with you being the “breadwinner” on resumption of employment;
(e)You first commenced using cannabis when you were aged approximately 17, initially sporadically, and growing, in times past, but more recently on a sporadic basis. You commenced using methamphetamine (commonly referred to as ice) at the age of 21, in the company of friends and, although initially such was only once every couple of months, it grew over time to, ultimately, a daily experience;
(f)In particular, in or about June 2015, your relationship with Alex Timothy had broken down, your relationship with your parents had been severed as a result of what your brother Tom described as cultural matters and other issues.
You have instructed your counsel that, over this period, you were staying with friends, using methamphetamine daily and frequently lived off the streets;
(g)After the subject offending, you reconciled with Alex Timothy and you have both travelled to Queensland in order for you to remove yourself from your peers, have some family time and to overcome your drug issues. When in Queensland, you were contacted by police, as there was a warrant for your arrest for breach of bail conditions, and you returned to Victoria and were remanded on 10 August 2015;
(h)Since your arrest and remand in August 2015, you have instructed your counsel that you have not used methamphetamine at all, and have only been a casual user of cannabis. Furthermore, pursuant to the community correction order made on 1 March 2016, you are required to undergo an assessment, and treatment, for any drug use or dependency.
The evidence of your brother, Tom Tufuga
13 Your brother, Tom Tufuga, gave evidence on your behalf. He described himself as being employed in two jobs but, more particularly, as a forklift driver. He gave evidence about the circumstances when your parents required you to leave the family home in the middle of 2015. At that time, there were difficulties with your parents, some of which extended to, according to your brother, cultural issues. In any event, your brother described your life beginning to “spiral downwards” at that time, and he was very critical of your behaviour.
14 However, since your release from custody on 22 October 2015, he notes that he has observed a distinct change in your behaviour and describes you as being back to your “old self”. In particular, he describes how things have been “transformed within the family” since your release and, whereas your parents have been more compromising on some cultural issues, you, also, have adjusted your behaviour. Your brother described you as being very involved now, with the family generally and, in particular, with your own family. Furthermore, you are again actively involved in church activities and are supportive of your siblings. Such evidence is also borne out by his reference dated 6 May 2016 (see Exhibit B).
15 I also refer to the reference from your mother dated 5 May 2016. In particular, your mother describes you as being a “very angry person” last year and it was not the son she knew. She also notes she did not know why you were “so angry and not listening to … [your] … parents.” Since being bailed, your mother states:
“When you release him from the jail, he was very good boy and he was back to the son I was teaching him. He always comes and helps with our house and always listens to us. He worked very hard and very tired, but he still work. He is good dad to our very beautiful grandson and granddaughter and he never yells and is not angry no more. I know God changed him and make him learn that family is important and going to church is important and we go to church together when he not work.”
16 I also note the references from your youngest sibling, Tala, who has also noted your change in attitude, and from your sister-in-law, Alena Tufuga, who has described her observations of your present dealings with the family at large and, in particular, your immediate family. She notes that your life is “back on track”.
Your counsel’s plea in mitigation
17 Your counsel submitted that the following matters should be considered in mitigation of any sentence to be imposed on you:
(a)Consistent with the submission of counsel for the prosecution, you pleaded guilty to the subject offending at the earliest opportunity. Furthermore, again consistent with the submission of counsel for the prosecution, you made “full admissions” in relation to the subject offending during the course of your record of interview;
(b)Your early plea of guilty, together with your admissions, demonstrates signs of remorse and an insight into the wrongfulness of your offending. Your counsel also notes that you returned from Queensland to Victoria immediately after being notified by the police;
(c)Since the subject offending and, more particularly, since your release on bail on 22 October 2015, you have made genuine and significant attempts to rehabilitate yourself. In this respect, you instruct your counsel that you have not used methamphetamine since being placed on bail, although you do use cannabis intermittently. The schism between you and your parents has been mended and you have demonstrated to other members of your family your commitment to family values – both in a general sense and more particularly your own family, and your commitment to working long hours to support your own family. You have, again, become involved in church activities, as you were prior to the downhill spiral in your life, brought about by, in particular, the use of methamphetamine;
(d)Your counsel submits that your prior criminal record does not demonstrate any violent offending. As already recorded, you were convicted of shoplifting on 30 January 2012 and had an earlier Children’s Court appearance in 2008, when you were found guilty of entering a building with intent to steal, but no conviction was entered;
(e)At the time of the offending you were 23 years of age, and it is submitted that you should be viewed as a "youthful offender”, and that rehabilitation of young offenders is a paramount consideration;
(f)Although accepting that the offence of armed robbery is a serious offence, it was submitted that such offending, although involving some premeditation, was not “overly sophisticated”. It was submitted that such offending, and the offending involving theft, was committed “out of desperation” because, at that time, you had no employment, were separated from your family, and had no money.
18 Ultimately, your counsel submitted that, considering that you have served 73 days’ of pre-sentence detention and, furthermore, that it would be an appropriate disposition, in all the circumstances, for you to be sentenced to a community correction order. Your counsel also noted that, in relation to the subsequent offending, you spent 28 days on remand which, effectively, has become “dead time”, and that can be taken into account.
Submissions on behalf of the Prosecution
19 Counsel for the prosecution, although conceding that the shoplifting offences and the drug offences were not the most serious examples of such offending, it was submitted that Charge 2 involving the armed robbery, was particularly serious offending. In this respect, it was submitted that general deterrence is a particularly important sentencing consideration in the circumstances of the matter. In particular, counsel submitted that there was some planning in relation to the robbery, the actual robbery went on for one-and-a-half minutes and involved you having scissors at, or near, the neck of the victim, Banka. Furthermore, you had the wherewithal to have clothes to conceal your identity and went to great efforts to conceal your position when the helicopter was in existence.
20 It was also submitted that the 7-Eleven store was a “soft target” and that the incident would clearly have generated fear in Banka in relation to his safety.
21 Counsel for the prosecution says that given the nature of, in particular, Charge 2, there should be a combination of imprisonment and a community correction order.
Conclusion
22 The offence of armed robbery is a serious offence, as is made manifest by the maximum penalty of 25 years’ imprisonment. Although the amount recovered by you from such robbery was not overly significant, a perusal of the CCTV footage demonstrates the brazenness of your offending and, indeed, the fear that it must have generated in the shop assistant, Banka, and, no doubt, the other customers in the store. One can well understand the fear that Banka must have had when the scissors were near his neck for a period of time, and you yelling for money to be found and placed in the bag.
23 Furthermore, such offending cannot be considered to be a “spur of the moment” action but, rather, as a result of some planning and forethought considering the clothing that you wore, having available the kitchen knife and having the ability to change clothes after leaving the store.
24 I consider the offending involving the armed robbery to be objectively serious offending.
25 This offence, together with the two offences of theft – Charge 1 involving the theft of the “NBA” jerseys from Rebel Sport Limited, and Charge 3, involving the theft of underwear from Myer Ltd, all occurred during the period following the breakdown of your relationship with your parents and your de facto partner.
26 I found the evidence of your brother, Tom, to be impressive, being both measured and objective. It is to be noted that your brother was extremely critical of you after this offending and had doubts as to whether or not you would overcome your problems. He gave forthright evidence that he has been impressed since you have been bailed on 22 October 2015, both in the way that you have re-united with your parents and family, generally, and also, perhaps more particularly, the commitment that you have shown to your work and immediate family. Such views are supported by other members of your family and, in particular, your mother.
27 I consider that, prior to your offending you were part of a tightly-knit, functional family group. I do accept that from about mid-2015, your life, to adopt the words of your brother, Tom, spiralled downwards, partly as a result of the state of your relationship with your de facto partner, partly as a result of the ongoing disputation with your parents in relation to cultural matters and, more particularly, your increasing use of methamphetamine. Although the offending on 10 August 2015 occurred while you were on bail, such aggravating aspects should be viewed in the context of your overall condition at that time. Similarly, the small quantity of cannabis and buprenorphine found on that date was for personal use and part of the drug cocktails that you were undergoing up to that time.
28 I do accept the evidence of your brother and other family members, that the family unit, again, has been united, with you demonstrating a commitment both to your wider family and your immediate family, all of which bodes well for the future.
29 Although you have been involved in subsequent offending, on 4 February 2016, it was submitted by your counsel, with no challenge from the prosecution, that you were a passenger in a vehicle driven by another, who essentially had the altercation, and you only became involved because of your friend’s involvement. Furthermore, to the extent that drugs were found in the vehicle at that time, such drugs did not belong to you.
30 I also take into account your early plea of guilty in relation to the offences and, indeed, your cooperation with the authorities and, in particular, making full and frank admissions during your record of interview. Although the case against you would appear to have been ultimately quite strong, a plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial (see Phillips v The Queen [2012] VSCA 140 and, in particular, at paragraph [36]). It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (again see Phillips v The Queen, op cit, at paragraph [96]). In the circumstances of this matter, I do consider that your early plea of guilty and, more particularly, cooperation shown by you in dealing with the relevant authorities, permit me to infer that you have some remorse for your offending.
31 Bearing in mind that you were 23 years old at the time of the offending, you are not, by definition in the Sentencing Act 1991, a “youthful offender”. Notwithstanding, I do consider that the principles enunciated in the leading cases of The Queen v Mills [1998] 4 VR 235 and, in particular at p.241 per Batt JA and Azzopardi v The Queen [2011] 35 VR 43 and, in particular at paragraphs [34]-[36], per Redlich JA are apposite and relevant. In this respect, it was ultimately submitted by your counsel that rehabilitation of young offenders is a paramount consideration, and I accept such submission generally.
32 I do note that you have no prior convictions for any violent offending, although there is some prior record for shoplifting in January 2012 and an earlier Children’s Court offence in 2008.
33 I consider that, particularly in relation to Charge 2 – the armed robbery – principles of general deterrence, specific deterrence, denunciation and just punishment are relevant considerations in the context of promoting your rehabilitation. Bearing in mind my comments as to what has transpired since you being bailed on 22 October 2015, I consider your prospects of rehabilitation to be “reasonable”.
34 The Court directed that you be assessed for a community correction order and such assessment was undertaken on 6 May 2016. In a report of the same date, the writer of the report asserted that your compliance with the earlier community correction order on 1 March 2016 could not be considered “positive”. It was initially alleged that you had been involved in a variety of unacceptable absences and failed to attend a drug treatment appointment. Later, the court was supplied with a further document from Ms Amanda Green, a community corrections officer, which clarified the situation.
35 What was reported initially to be three unexplained absences from community work, was due to a breakdown in your understanding of what had to be done prior to the community work and, furthermore, as a result of your mobile number being changed, you were not informed of the original medical appointment. This has now been rectified and you have been informed of a new appointment.
36 In the report dated 6 March 2016, you were assessed as being of “medium risk” of re-offending, according to the Level of Service Risk Assessment Tool. It is unclear whether that assessment is based, in part, to what was then considered to be your compliance with the order. In any event, you were assessed as suitable for a community correction order, with it being recommended that there be additional conditions of you performing unpaid community work, drug treatment and rehabilitation, re-offending programs and treatment, and general supervision.
37 I refer to the guideline judgment given by the Court of Appeal in Boulton & Ors v The Queen [2014] VSCA 342 pertaining to the operation of community correction orders, which have been available in Victorian courts since 2012. As that court stated, the community correction order is a radical new sentencing option with the potential to transform sentencing in this State. Although a non-custodial order, such order has mandatory conditions laid down by the legislature, and the sentencing court can attach to a community correction order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community correction order is a “flexible sentencing option”, in enabling punitive and rehabilitative purposes to be served simultaneously.
38 I also refer to s.5(4) and s.5(4C) of the Sentencing Act 1991, which respectively state:
“(4)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
(4C)A court must not impose a sentence which involves the confinement of the offender unless it considers that the purpose of purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
39 As the Court of Appeal has stated, s.5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a)The purposes to which the sentence is to be imposed on the offender; and
(b)Whether those purposes can be achieved by a community correction order to which one or more of the specified (onerous) conditions are attached.
40 I also refer to Appendix 1 of the Court of Appeal judgment which is headed “Community corrections order: guidelines for sentencing courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offence and the moral culpability of the offender. I am then called upon to consider whether:
(a)The crime, as so assessed, is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment;
(b)A community correction order, either alone or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
41 I do not consider that the offences in relation to Charge 1 (the theft of the NBA jerseys), Charge 3 (the theft of the underwear), Charge 4 (the possession of a small quantity of cannabis), Charge 5 (the possession of buprenorphine) and Charge 8 (committing an indictable offence of theft while on bail), requires the disposition or the imposition of an immediate period of imprisonment. However, as I have already indicated, I do consider the circumstances of Charge 2 – that is the armed robbery – to be objectively serious. Taking all the aforementioned matters into account, and that you have already served 73 days’ pre-sentence detention, I have ultimately formed the view that the time served, coupled with a lengthy community correction order, can achieve the purpose, or purposes, for which the sentence is imposed. I have also taken into account the “dead-time” of 26 days which was spent on remand in early-2016.
42 Please stand up.
(a)In relation to Charges 1 and 3, you are convicted and sentenced to an aggregate fine of $500;
(b)In relation to Charges 4 and 5, you are convicted and sentenced to an aggregate fine of $300;
(c)In relation to the summary matter uplifted to the County Court, you are convicted and sentenced to a fine of $300;
(d)In relation to Charge 2, you are convicted and sentenced to a period of 73 days’ imprisonment (time served). Furthermore, you are sentenced to a community correction order for a period of four years and you must attend at the Sunshine Correctional Services within two clear working days of this order. In addition to the mandatory terms, there will be the following conditions:
(i)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the duration of the order;
(ii)Pursuant to s.48B(3)(a) of the Sentencing Act 1991, you will undergo assessment and treatment, including testing for drug use as directed;
(iii)Pursuant to s.48D(3) of the Sentencing Act 1991, you are to participate in programs and address factors relating to the offending as directed;
(iv)Pursuant to s.48K of the Sentencing Act 1991, you are to be judicially monitored by the Court, with the first judicial monitoring to be on Thursday 8 September 2016 at 10 am, at which time you must produce documentation of drug testing that you have undertaken over the currency of this order;
(v)Pursuant to s.48C of the Sentencing Act 1991, you are to perform 200 hours of unpaid community work over the currency of such order. The Court directs that such unpaid work is in addition to any outstanding unpaid work in relation to the community correction order made on 1 March 2016. The Court also notes that the punitive aspect of your punishment is not satisfied by the pre-sentence detention of 73 days and, thus, the further order for unpaid work.
(e)I declare that you have served 73 days’ pre-sentence detention, and such period should be administratively deducted from your sentence;
(f)Further, in relation to various charges, pursuant to s.78(i) of the Confiscation Act 1997, I will make a disposal order in relation to the items contained in the attached Schedule, as sought by the prosecution;
(g) Pursuant to s.6AAA of the Sentencing Act 1991, if not for your pleas of guilty, I would have imposed a sentence of two-years-and-six-months, with a non-parole period of 18 months.
43 COUNSEL: As Your Honour pleases.
44 HIS HONOUR: Anything to say?
45 MS OVEREND: Just one matter. It's pretty minor. Your Honour, at some point, in your sentencing remarks referred to a kitchen knife instead of scissors, but throughout the rest of your sentence you did say - - -
46 HIS HONOUR: I said "kitchen knife", did I?
47 MS OVEREND: Yes.
48 HIS HONOUR: I will change that.
49 MS OVEREND: You did say "scissors" throughout.
50 HIS HONOUR: Yes, I apologise for that. I will make that clear when I revise the judgment.
51 MS OVEREND: Thank you.
52 HIS HONOUR: Mr Tufuga, as no doubt it will be explained by your counsel, you have been sentenced to a community correction order with lots of conditions. That is like any other sentence of the court. What you must understand, over the next four years you must comply with everything that that order requires, because if you do not and there is any breach or any further offending or any non-compliance with the order, it is almost certain you will be brought back to me, and I would take a very dim view as to those actions. At that time I would have the power, if I so chose, to commit you to prison straightaway, so you must treat this as a sentence of the court and must do everything as you are directed to do.
53 As I have noted in these reasons for sentence, it appears that since your bail, you have made attempts, and good attempts, to turn your life around and you are lucky you have the support seemingly of a very committed family and the prospects of going back to work, which is also very important, in my view. It is really up to you. If you fall off the rope again and come back, it will not be if, it will be just how long, do you understand?
54 OFFENDER: Yeah. Yes.
55 HIS HONOUR: Yes, thank you. Now you will have to sign some documents. We will have those signed.
56 MR BARKER: Does Your Honour mind if I approach the dock while he's signing the documents?
57 HIS HONOUR: Yes, that is fine.
58 (Community correction order signed and acknowledged.)
59 The parties can be excused, but I am just not quite sure what the administrative functions are now given that it is time served, so he may have - - -
60 MR BARKER: He should be released straight out of the dock, Your Honour.
61 HIS HONOUR: Yes.
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