Director of Public Prosecutions v Vaisa

[2021] VCC 1612

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00203

DIRECTOR OF PUBLIC PROSECUTIONS

v

STULY VAISA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2021
CASE MAY BE CITED AS:	DPP v Vaisa
MEDIUM NEUTRAL CITATION:	[2021] VCC 1612

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik
For the Accused	Ms V. Drago

1HER HONOUR: Stuly Vaisa, you have pleaded guilty before me to one charge of armed robbery and you have also pleaded guilty to the summary offence of possessing a prohibited weapon without an exemption, which charge was uplifted to be heard on the plea pursuant to s145 of the Criminal Procedure Act.  The facts underlying your offending are as follows.  I should add, the maximum penalty for armed robbery is 25 years' imprisonment and the maximum penalty for possessing a prohibited weapon is 240 penalty units or two years' imprisonment.

2You were 19 at the time of this offending which occurred on 1 and 2 July 2019.  On that date, the complainant started talking to a female friend of yours, Julia Craig[1], during which she complimented him on a nice car she said he had, which he had showed her on his Instagram profile.

[1]A pseudonym.

3She sent Mr Mannan a message asking if he would like to meet with her and he agreed, arrangements being made for Mr Mannan to pick up Ms Craig from an address in Kalkallo.  At about 11 pm, on 6 July 2019, Mr Mannan picked up Ms Craig and her friend Nadia Woolridge[2].  Once they got in the car, Ms Craig said she was hungry and wanted to get some KFC and on the way there got Mr Mannan to stop at an address in Boston Road, Lalor, so Ms Craig could collect some cannabis.

[2]A pseudonym.

4CCTV footage seized by police captured Ms Craig and Ms Woolridge entering the rear yard of the Boston Road address, and also captures you, Zac Safatli, Sal Alhaj and Jerome Hum[3], and the prosecution allege it was during this time that the plan was made to rob Mr Mannan; that is while you were all in the back of that house.

[3]A pseudonym.

5Mannan then drove Ms Woolridge and Ms Craig to the KFC on High Street, Epping, purchasing food using the drive-through.  After the food had been purchased, Ms Woolridge said she knew a place which was quiet where they could eat their food and directed Mr Mannan to the Lalor Plaza, arriving at about 12.15 am.  Mr Mannan parked his blue Audi in the rear carpark.  The place where he parked is walking distance from the Boston Road address.

6After finishing the food, Ms Woolridge said she wanted a cigarette and pointed to some nearby shops and Mr Mannan went with her and Ms Craig to the carpark entrance where the two girls had a cigarette.  While there, Ms Craig was coordinating the robbery via SMS.  Part of the plan was to get Mr Mannan drug affected so he put up less resistance, and a passage was produced in the prosecution summary of the text messaging between Ms Craig and another person to that effect.  I annex the prosecution opening to my sentencing remarks.

7Mr Mannan suddenly noticed a person near the charity bins on the opposite side of the carpark whom the prosecution allege was Mr Safatli.  Mr Safatli was wearing a white scarf across his face and then Mr Mannan realised something was wrong because that person, that is Mr Safatli, started cutting across the carpark and heading towards his car.  Mr Mannan told Ms Craig and Ms Woolridge he needed to get back to his car.

8As he walked back to the car, Mr Mannan saw a second man walking towards him which was you, Mr Vaisa.  Mr Mannan began moving quickly to get to his car and then unlocked it and got in the driver's seat.  However, after that Ms Craig and Ms Woolridge opened the passenger doors and simply stood there.  Mr Mannan wanted to start the car and drive away but you and Mr Safatli then approached him on the driver's side door.  You, Mr Vaisa, pulling out a very large hunting knife and using the handle to repeatedly hit the window the car which eventually smashed.  Your possession of that knife underlies your summary charge; possessing a prohibited weapon.

9You kept saying to Mr Mannan, 'Don't fuck with us.  Give us the money', and you also demanded the car keys.  Mr Mannan tried to use the car door to push you away but as he did this you reached inside the door with the knife, cutting Mr Mannan's left finger and causing it to bleed.

10Mr Safatli was also trying to get to Mr Mannan.  He then exited the car on the passenger side door and ran away, and as he did so Mr Mannan saw you and Mr Safatli get into his car and begin searching it.  The two of you then ran off in different directions; Ms Woolridge and Ms Craig also ran off at the same time.

11On returning to his car, Mr Mannan saw his wallet had been stolen, which contained his driver's licence, Mastercard and also a Maserati branded watch, sunglasses and $1050 in cash.  Your actions in robbing Mr Mannan of those items underlie Charge 1 on the indictment; armed robbery.

12After the offending, Craig and Woolridge are captured on CCTV footage returning to the Boston Road address and a short time later, Mr Alhaj and Mr Hum are also seen returning to the address, followed by you and Mr Safatli.  Mr Safatli and you were then seen dispersing money in the backyard.      Police were called to where the car was and there spoke to Mr Mannan. 

13On 18 July 2019, police attended the Boston Road address and executed a search warrant, where other co‑accused were found, and also seized the hunting knife, CCTV footage and hard drive, $300 and cannabis.  Police arrested Craig on 19 July.  She made admissions, subsequently pleading guilty to a charge of robbery and sentenced by the Children's Court in Heidelberg to a good behaviour bond in the sum of $300.

14Ms Woolridge attended the Mill Park police station that day, made a no comment record of interview but pleaded guilty to a charge of robbery and was sentenced in the Children's Court, Heidelberg, to a good behaviour bond in the sum of $300.

15Ms Wells[4], one of the co-accused, attended the Mill Park police station, where she was arrested, her phone seized, the messages I have referred to are located and she subsequently pleaded guilty to a charge of possessing a drug of dependence and was sentenced to an adjournment undertaking for 12 months without conviction.

[4]A pseudonym.

16Mr Alhaj attended the police station but denied any involvement in the armed robbery and was not charged.  Mr Hum attended police where he was arrested and interviewed and charged on 1 August 2019, and he received a nine month probation order without conviction, in the Children's Court on 4 March on charges of assault in company.

17Zac Safatli made a no comment record of interview when he attended the Mill Park police station on 9 August, and was not charged.

18You attended police at the Mill Park police station on 29 July 2019, where you were arrested and interviewed.  Police also seized your phone.  During the record of interview you told police that you knew about an older man being with two underage girls, which you did not like and that you decided to take actions in order to send a message to Mr Mannan that this was not appropriate behaviour on his behalf.

19You conceded that your intention was to hit him so that Mr Mannan understood he could not go 'rolling around with underage girls in your car'.  You admitted reaching for your 'big hunter's knife', and you admitted hitting his car door and telling Mr Mannan to get out.  You replied 'No comment' when asked about property that was taken during the armed robbery.

20Ultimately, the matter was settled after there was a committal hearing on 7 February 2020.  The matter was listed for trial on 15 March 2020 and the matter was eventually listed for a sentence indication which took place before me on 7 September 2020.  You had been in custody up to that point and on that date I ordered that the matter be adjourned for 12 months, in order that essentially, conditions of a deferred sentence could take place.  You pleaded guilty on that date.

21I now turn to your personal circumstances.  You are 21, almost 22 years of age.  You are of Samoan heritage and you were adopted by your aunt and uncle, unbeknown to you, because your biological parents could not care for you. 

22You were told this when you were eight and it caused an amount of concern in you until your cousin sat you down in your early adolescence telling you that this was common within the Samoan community, and that made you feel less abandoned.      You have subsequently learned that your father is violent towards your mother and to some extent you are thankful that you have been brought up in the way you have by your aunt and uncle with your cousins.

23I received a psychological report from Carla Ferrari, dated 29 March 2020.  You told Ms Ferrari that you had problems during your schooling, particularly having a short attention span and she subsequently diagnosed you as suffering from an attention deficit hyperactivity disorder.  You were expelled from the Lalor North Secondary School in Grade 8 but transferred to Epping Secondary.  However, you often truanted and were pulled out by your aunt during Year 12 as she said you were simply not making sufficient effort.

24You obtained employment with a butcher for about five months.  It was after this time, however, that you stopped going and you began involving yourself with a group of anti-social peers,  in other words, boys and girls who were getting into trouble.  You told Ms Ferrari that you noticed that the friends that you had who had stayed out of trouble were getting jobs and had money, but you did not.  You said you also noticed that your anti-social peers were not working but were getting more money, than your friends who were working, by committing crimes and so you involved yourself in criminal activity with them.

25Your record begins in 2019 where you were dealt with for robbery, recklessly causing injury, affray, unlawful assault and resisting an emergency worker on duty and you were given 150 days' imprisonment.  Then on that same date you were also dealt with for behaving in a riotous manner in a public place, giving a false name when requested, robbery, possessing cannabis and attempting to commit an indictable offence, and you were released, and this is at the Sunshine Children's Court on a youth supervision order.

26On 21 March 2019, you were placed on a 12 month community corrections order for attempted car jacking and contravening a conduct of bail.  Finally, on 2 May 2019, you were placed on probation by the Sunshine Children's Court on charges of committing an indictable offence on bail, common law assault, robbery and making a threat to kill.

27It appears around that time that you were involved in this and other offending, you were using a number of party drugs, including MDMA.  You were also using cannabis and you were drinking and you told Ms Ferrari you were under the influence of those various substances at the time that you committed this offending.

28You were in custody from the time you attended on the police up until the hearing before this court in September of last year and it would seem, unfortunately, that it took gaol or that time in custody to get you in order.  You were described as a model prisoner.  You worked throughout.  You started doing VCAL studies there.  You undertook a number of courses whilst in gaol and it appears that really you could not have done much better in your time in custody, that you accessed every possible facility that you could in the meantime.

29It was on that basis that I released you on the deferred sentence.  I also received an impressive reference from your aunt.  She described you as talented, as very good at sport, that you made good friends.  She stated, 'When this all started in 2017 (his stupidity), it was very hard to witness, let alone listen to him speak.  He came across as a prideful child doing the wrong thing, with no interest to hearing any advice'.

30Your aunt said that during the time you were in custody she saw a change in you.  She wrote about how you caught her crying, she said that had never happened before, saying how wrong your actions had been, expressing a great deal of remorse.  She stated, 'His remorse has been something I had been waiting for'.  Your aunt, Ms Vaisa, said that she would keep supporting you along with the rest of your family.

31In those circumstances, I released you, as I have said several times, on bail and there were conditions that you attend Karen Eish for drug counselling and that you obtain a mental health program.  In the time that you have been released, you have behaved in a very appropriate manner.  You have proved to this court that you are capable of change.  One of the important factors in your life the court can take into account is that you come from a very good and supportive family, who in no way approve of the sort of behaviour you had been engaging yourself in.

32However, it is clear that you successfully used this time, as I have said.  You engaged with Karen Eish between September and November of last year.  You were referred to ACSO COATS in March 2021 and you were referred to Anglicare for counselling in August of this year and you have completed four sessions - I think I've lost Mr Vaisa.

33ASSOCIATE:  He will probably still be able to hear, Your Honour.

34HER HONOUR:  Can you hear me, Mr Vaisa?  We will need to get him back.

35ASSOCIATE:  (Indistinct) standing down (indistinct).

36HER HONOUR:  No problem.  I'm just going to just stand down, excuse me for a moment.  Thank you, we're going to have to stand down while we try and get Mr Vaisa back.  Thank you.

37(Short adjournment.)

38HER HONOUR: Thank you. As I said, Ms Ferrari has diagnosed you as suffering from a major depressive disorder and ADHA. She also noted that you had previously suffered from alcohol and cannabis use disorder. Pursuant to s5H(2) of the Sentencing Act, armed robbery is an offence where a court must impose a term of imprisonment, unless there are exceptional circumstances which are outlined in that section that apply.

39The circumstances are, pursuant to s5(2H)(c):

The offender proves on the balance of probabilities that at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or the offender has impaired mental functioning that would result in the offender being subjected to substantially and materially greater than the ordinary burden of risk of imprisonment.

40Importantly, in her report Ms Ferrari wrote:

It appears that there are a number of factors outlined above which are causally linked to Mr Vaisa's behaviour and impaired functioning at the time of the offending.  Whilst his acute intoxication with substances contributed to actual commission of the offence, his deteriorated mental health also played a significant role in the incidents and in his self-medicating.  There does not appear to be evidence of a criminal belief system.  Mr Vaisa's actions are more a reflection in his distress and untreated psychiatric symptoms in the context of poor judgment, peer influence and anti-social associations in the past two years, an inability to manage his emotions in accordance with ADHA, decreased impulse control, insight and judgment whilst acutely intoxicated and the impact of untreated depression and anxiety which can result in changes to the pre-frontal cortex of the brain and therefore affect behaviour.

41Now, these issues appear to have been operating in you for several years, including the time when you committed this offending.  I am satisfied that gaol has proved to be a circuit breaker.  You continue to enjoy the support of your parents and in the circumstances I do find that at the time of offending I am satisfied on the balance of probabilities that you did have impaired mental functioning that was causally linked to the commission of this offence and which substantially and materially reduced your culpability.

42In those circumstances, I am prepared to place you on a combination sentence.  That is, a term of imprisonment combined with a community corrections order.  I have had you assessed for suitability for placement on the order and you have been found suitable.  In the circumstances, therefore, in relation - and I am going to make this an aggregate sentence - I am going to place you - I am going to sentence you to 10 months' imprisonment and then order that you - which I declare has been served by way of pre-sentence detention, and then you are to be released on a community corrections order.

43Now, you had other matters including breach of another order which has been dealt with by the Magistrates' Court and that order has been extended for another 12 months.  So I am aware that you are already on an order.  The order I am going to place you on will last for a period of 12 months.  I can only place you on this order if you consent to being placed on it and I must explain to you the conditions of that order.

44I should also add that in addition to engaging with Karen Eish, obtaining a mental health plan and also engaging with ACSO COATS, you have attended meetings with employment agencies, you have worked casually and I understand you are currently working stacking crates.  So certainly your position has very much changed. 

45Importantly, there has been no further offending and that is important because there was constant offending for a period of time there, Mr Vaisa.  That gives me some indication that the time you spent in gaol truly did have what is called a salutary effect upon you; that is you realised that you did not like gaol and you did not want to keep offending and go back there.

46Given the support of the pro-social family that you have got, I am also satisfied in the circumstances that release on a community corrections order is an appropriate way to deal with you in view of the principles of protection of the community, general deterrence and just punishment.

47The other persons involved in your offending received far less in the way of sentences.  However, they were dealt with in the Children's Court and I am satisfied that you played a major role in the violence surrounding the armed robbery of Mr Mannan.

48The order conditions are as follows:  You must report to Corrections within two working days of the making of this order, that is by Monday of next week.  Whilst on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to be gaoled, Mr Vaisa, but it means that if you get picked up for something you could be gaoled for, like knocking off a box of matches from Woolworths, that would breach the order.

49Can you hear me, Mr Vaisa?

50OFFENDER:  I can hear you.

51HER HONOUR:  Good, because the picture has frozen.  Whilst on the order - and if you do breach the order you will be brought back in front of me and I will re-sentence you.  Whilst on the order, you may not leave Victoria without the permission of the Community Corrections Office.  You must report any change of address or employment within 48 hours of the making of that change.  You must report to and receive visits from the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office.

52I am going to order that you undertake 80 hours of unpaid community work.  That you attend for treatment and rehabilitation for drug and alcohol use.  You are to be placed on supervision and there will be judicial monitoring, which means I will be checking up on you.  I will get a report in about three months' time and I will be having a chat with you about how you are going on the order.

53Are you prepared to enter this order?  Can you hear me, Mr Vaisa?  Can you hear me?

54OFFENDER:  I can now hear you, Your Honour.

55HER HONOUR:  Yes.  Are you prepared to enter this order, Mr Vaisa?

56OFFENDER:  Yes, Your Honour.

57HER HONOUR:  Thank you very much.  All right.  We will just get that ready.  Aggregate sentence of 10 months, which I declare has already been served by way of pre-sentenced detention and placement on the order.  Pursuant to s6RRR I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of 18 months. 

58Is there anything else I need to attend to, Mr Malik?  You're on mute, Mr Malik.

59MR MALIK:  Just the forfeiture order, I understand, Your Honour.

60HER HONOUR:  Yes, the forfeiture order will be made.  Anything else, Ms Drago?

61MS DRAGO:  Nothing further, Your Honour.

62HER HONOUR:  All done.  All right, the first date for judicial monitoring will be 17 December at 9.30 and you can just be beamed in through Zoom or through the Corrections Office.  Who knows, we might have 80 per cent vaccination and the conditions lifted.  I thank counsel very much for their assistance.  We will adjourn.

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