Director of Public Prosecutions v Vaai and Patera

[2015] VCC 215

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 15-00095
CR 15-00096

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAAI VAAI and MANERO PATERA

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Shepparton
DATE OF HEARING:	19, 25 February 2015
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Vaai & Patera
MEDIUM NEUTRAL CITATION:	[2015] VCC 215

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	OPP
For Offender Patera)	Mr A. Coote	Cameron's Lawyers
For Offender Vaai	Mr I. Michaelson	VLA

HIS HONOUR: 

1You Vaai Vaai, and you Manero Patera have each pleaded guilty before me to one charge of armed robbery and one count of possessing a drug of dependence in an amount of no more than a small quantity.  The circumstances which give rise to this matter are set out in the prosecution opening which is exhibit A.  At the time you, Vaai Vaai, were born on 15 March 1994 and were aged 20.  You turned 21 on 15 March 2015.  You are unemployed and live with your mother and disabled older brother.  You Manero Patera were born on 27 1989.  You were aged 24 at the time of the offending, and are now 25.  You are unemployed and living with your parents.

2At approximately 2.09 am on Thursday 23 October 2014, you both went to the Coles Express service station in Shepparton.  You, Vaai, were armed with a Tomahawk.  The plan involved Patera posing as a customer at the door, so that it was unlocked for you both to enter.  Once inside, you Patera walked to the coffee machine whilst Vaai ran in behind you towards the console operator carrying a tomahawk wearing a disguise.  When you reach the counter, you threatened the person there demanding cigarettes, and money and she provided you with both and approximately $150 cash.  After getting those, you ran towards the exit where you collided with Patera and some articles were dropped before you then both left the store and ran away. 

3Police obtained a search warrant for you, that is Vaai's home address, and that was executed at approximately midday on the same day.  You were both then sleeping in separate rooms in the house, and you were both arrested and various articles seized. 

4You Vaai were later interviewed at the Shepparton police station where you made full and frank admissions.  You admitted to committing the offence to purchase cannabis and indeed the cannabis that was located, and is the subject of the second charge, was purchased using the money from the armed robbery.  You Patera were also interviewed where you made full and frank admissions and described your actions as pretty stupid.  You each both spent six days in custody before being granted bail on 28 October 2014.

5You, Vaai, fall to be sentenced as a young offender as you do not turn 21 years of age as I say, until 15 March 2015.  Various ancillary orders such as a forensic sample order and a disposal order were sought and not opposed by counsel on your behalf and I will sign those orders.

6MR LIVITSANOS:  And compensation, Your Honour.

7HIS HONOUR:  And compensation, all right, thank you.  And I will sign that order as well. 

8MR LIVITSANOS:  Thank you.

9HIS HONOUR:  I will do that now.  Yes, thank you.  I have signed all those orders.  There is a victim impact statement provided in this matter.  Although that was not to be read to the court, but it is clear that the woman who - a woman in her 50s was very upset by what had happened and of course is anxious to retain her employment and so is caught in quite a conundrum, and notwithstanding she is quite apprehensive in the role, nevertheless is forced to keep working in that role in order to ensure her employment.

10As of course was pointed out by counsel on your behalf, there are a number of mitigating factors.  You have each pleaded guilty and you are each entitled to have that fact taken into account in your favour and I will do so.  The community has by each of your plea been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial and I can each tell each of you that since I intend to oppose this far less than would have been imposed had you been found guilty after a trial.  Further I take it into account in each of your favours that you intimated earlier your intention to plead guilty to these charges, you were quickly apprehended in the circumstances described and each readily admitted your part in the crime and I accept in the circumstances in both your cases your pleas indicate true remorse for your actions.

11I have been told something of your personal history and your circumstances.  And with respect to you, Mr Vaai, I propose to read some material which are set out in exhibit C which is the pre-sentence report as to your suitability for the youth justice system.  It is there said that you are born in New Zealand and migrated to Australia in 2003 with your mother and brother.  You were raised by your mother, having never met your father.  Indeed, you are strongly supported by your mother as was further explained by counsel.  You reside with your mother as well as your older brother.  Your older brother has a significant disability as a result of some violent altercation some time ago.

12Your mother is obviously clearly disappointed about what has happened to you.  And she said she had no knowledge of your drug and alcohol use. 

13She stated that your education began at Birdville Primary School in Auckland.  You moved to Australia with your mother and brother, as I say, when you were nine.  You spent the rest of your primary schooling at Maroopna Park Primary School.  Apparently that was not all free from trouble.  You then attended Maroopna Secondary College from year 7 and completed year 11 and that also involved some disruption and the occasional suspension although generally you were reported to be a reasonable person there.  After leaving school, you commenced a plastering apprenticeship with Keystone.  You maintained your employment there for three years after which you changed your employer, working for eight months with Brown's Plastering.

14You were two months short of completing that apprenticeship prior to losing your job when your employer ceased operations.  You then undertook work at the abattoirs in Cobram where your uncles are currently employed.  You have recently undergone a medical examination for the purposes of employment with Tongala Abattoirs. 

15You obviously have family support.  You are currently unemployed.  You do attend the local church weekly.  Whilst you have several of the extended family members in the adult prison system that it is important that you take this opportunity in the youth justice system to ensure that is not a future that you then face. 

16With respect to you, Mr Patera, exhibit 1 is a report that was prepared by Ms Pamela Matthews and she there sets out your relevant history.  You were born in New Zealand to Samoan parents.  Your parents separated when you were eight.  You were born in New Zealand to Samoan parents.  Your parents separated when you were eight.  You know very little about your father.

17Your family came to Australia when you were four.  Your mother works as an aged care attendant.  You were raised by her with the support of uncles and aunts.  You have three brothers, two of whom are in Samoa attending school and one of whom works in New South Wales.  Your mother re-partnered when you were ten or 11.  You attended primary schools in Brisbane, Townsville, Sydney, then Lalor East and there is no marked problems with your schooling.  You then went back to New Zealand and started school there, before returning to Australia to attend a host school in Shepparton.  You were in year 9.  And then undertook a certificate of Adult Education whilst at school.  Subsequently you undertook a Mechanics program at TAFE and started working at a local fast food restaurant at around the age of 18.  You moved to Griffith, then Frankston, before returning to Griffith working in a car yard.  You spent some time in Samoa in 2013 visiting family and were unemployed for a year.

18You report that you were an occasional social drinker.  You began marijuana use at the age of 12 and you now have limited access to that.  Mr Patera have no prior convictions and I sentence you as a person of previous good character.  You, Mr Vaai, of course, have prior convictions and these have been gone through in some detail already as part of the plea and it is clear that you have, certainly in 2014, acquired a list of what could only be regarded as fairly serious relevant prior convictions.  Particularly the one for robbery.  Reports have been tendered by each of your counsel, by consent, and I have read each of those reports and take what they say into account and of course particularly the report from the Department of Justice with respect to your suitability for the community corrections order, Mr Patera, which is before me and of course in support of that was the report of Ms Matthews to which I have already referred and I think it also appropriate to refer to some of her opinions in that context as to your suitability for a community corrections order. 

19You present with a cognitive profile which is consistent with a specific learning disorder, and your learning history, which I have referred to briefly.  You present with low-level autism spectrum disorder, level 1 of level 1 to 3 as defined by the relevant DSM, which is there set out.  Your deficits in verbal and non-verbal language and knowledge skills are consistent with that diagnosis and with the concerns the interviewing officer expressed in the record of interview which is a matter that has already been referred to.  You also present with persistent depressive disorder as defined in the DSM and that you appear to suffer persistent low-level depression.  There is also a history of long-term cannabis use, although not sufficient in the writer's view to meet the criteria for substance use disorder.

20It is clear that those matters mean that you are very vulnerable emotionally and socially outside the family with anyone who befriends you and those matters and those matters are also referred to in the context of the record of interview and it was the writer's concern that you would be very socially and emotionally vulnerable to the point of significant risk of manipulation and abuse in an adult prison population.  Those matters are all usefully set out in that report by Ms Matthews and will obviously be relevant to the person who has to assess you in the community corrections order context.

21With respect to you, Mr Vaai, your involvement in the justice system is set out and summarised in the report to which I have already referred, which is exhibit C and in addition to that, with respect, your suitability for the Youth Justice Centre.  It is of some significance to note the progress reports which are available from the Department of Human Services, which are exhibited before me and also the letter from primary care connect, are both supported as is the author who prepared - or the two authors who prepared the exhibit C, the presentence report being your suitability for youth justice centre.  And I note their view that during your engagement with youth justice, you have engaged positively with supervision, taking responsibility for your offending and demonstrating an awareness of the impact your offending may have had on the victim.  There are other matters there set out which give one some confidence that you may well turn a corner and not end up as some of your extended family have in the adult prison system.  Certainly I know that that is the hope of your mother and hopefully for what you are aiming for as well.  In any event, you will have the opportunity of demonstrating to those who are in the youth parole system that that is indeed the fact and I have no doubt if you are successful, the youth parole board will meet and you will be released in order to continue your rehabilitation after what would hopefully be a relatively short time in the youth justice system.

22I am reasonably satisfied certainly with respect to you Mr Patera, that you have reasonable prospects of rehabilitation.  For you, Mr Vaai, it depends entirely on how successful you are whilst within the youth justice system.  I accept that your roles with respect to this matter are as set out in exhibit A.  Of course as well as those matters personal to each of you, to which I have referred including the question of rehabilitation, I must take into account such matters as deterrence and especially general deterrence which is of considerable importance in a case such as this, involving what is colloquially referred to as a very soft target, being a relatively elderly woman who is confronted by you whilst you have a tomahawk.

23Specific deterrence is clearly of importance to you, Mr Vaai, given your list of prior convictions but less so with respect to you Mr Patera.  I also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending which I find to be modest with respect to you, Mr Patera, and of course with respect to you Mr Vaai, it depends entirely on how you emerge from the youth justice system.  I have made the orders sought by the prosecution, and not objected to by counsel on your behalf and that includes, of course, the s.464(zf) order and with respect to those orders I am satisfied that it is in the interests of justice having regard to the seriousness of your offending and of course your prior convictions, Mr Vaai, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from each of you.  That sample may be taken by a doctor or nurse or other authorised person.  The saliva sample is taken by wiping a swab inside your mouth and although you have each consented, if you change your mind, I must inform you that police may use reasonable force to enable that procedure to take place.

24Yes, if you would stand please, gentlemen?  These are without doubt serious offences, or certainly the armed robbery is.  And with respect to that matter, you Mr Vaai are convicted and sentenced to 18 months in the youth justice system, and with respect to the other matter, the count 2, there will be a $100 fine.  With respect to you Mr Patera, with respect to both matters, there will be a community corrections order of two years.  There will be 200 hours of work, involuntary work, and there will be the other conditions which are recommended by the author of the report which I accept and that, as I say, includes 200 hours of the community work, treatment and rehabilitation for drugs, alcohol, mental health and programs to reduce re-offending and supervision and all of those matters will be incorporated in the order as well as the Reach employment support and training program run by the YMCA and those are matters which the community corrections order people will ensure take place.

25With respect to, of course, with respect to both those sentence I have taken into account that each of you have spent six days on remand in the Shepparton police locker prior to your bail.  Had you not pleaded guilty, Mr Patera, there would have been an order for imprisonment of 12 months and with respect to you, Mr Vaai, there would have been an order for three years in the youth justice system. 

26All right, that completes that matter.  Thank you, Mr Patera, I think you can emerge from the dock and Mr Vaai, you will need to with the officer in a moment.  All right, each of you obviously has a job before you.  But I am satisfied, hopefully Mr Vaai, that you will take this opportunity in the youth justice system to demonstrate to the parole board there that you are the person your mum wants you to be and you think you are, and you have got that opportunity, but I think from now on of course you know that you have got nowhere else to go but the adult gaol system and once you are in there, it is very difficult to break that cycle.  But all of these challenges are before you.  All right, gentlemen, thank you.  Anything further?  That brings the circuit to a close, thank you Mr Livitsanos and your instructor for the great assistance you have given during the course of the circuit. 

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