Director of Public Prosecutions v Vaka

[2015] VCC 1946

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02145

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIU MATAEVALU VAKA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2015
DATE OF SENTENCE:	8 July 2015
CASE MAY BE CITED AS:	DPP v Vaka
MEDIUM NEUTRAL CITATION:	[2015] VCC 1946

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Warda
For the Prisoner	Mr J. McQuillan

Pages 1 - 9

 

 

1HIS HONOUR:  You, Niu Mataevalu Vak, have pleaded guilty to three charges of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment. 

2You are 26 years of age and were 25 years of age at the time of the offending.  You are still therefore relatively young.  You have pleaded guilty to the matter, albeit after a contested committal, and have certainly expressed appropriate remorse you must get the utilitarian benefit of that plea of guilty.  Your remorse has been expressed both to your wife who gave sworn evidence before me and to her family and I accept that you do have prior findings of guilt from New Zealand, including one of concern which was for intending to cause grievous bodily harm.  As I understand it, you have never before been incarcerated and whilst your prior history is of some concern, one has certainly seen a lot worse for people in your particular situation. 

3The Crown summary is an exhibit and will remain on the court file and I will give a somewhat truncated summary of that summary. 

4At the time of the offending, as I have said, you were 25.  You had been residing in Australia for approximately two years.  You were the owner of a green Honda Civic motor vehicle.  At this particular time you were working nightshift, at Coca‑Cola and this offending would have appeared to have occurred within an hour or two of the conclusion of your shifts. 

5In any event, Charge 1 is of armed robbery.  At 1.54 am on 26 April 2014 you attended a 7‑Eleven in Frankston.  You approached the front door of the store and they were locked because they are after a certain hour for security reasons.  The employee in the store opened the door to allow you to come in.  You had a black cloth scarf which was with you around your neck, over the mouth area and clearly had thought about disguise.  You were shown on CCTV to be looking downwards, head bent down and at times crouching.  As I said, the attendant opened the door, you walked into the store and pulled the cloth scarf up to cover your face.  You immediately went to the front counter and produced a large knife that you had hidden on you.  You pulled out an Aldi plastic bag from your pocket, threw it on to the counter.  You pointed the knife towards the victim and told him to put the money into the bag.  He activated the duress button.  You, however, had brought with you pliers with which you used to cut the security wires across the counter.  Upon seeing those security wires cut the victim opened the right‑hand side register and threw you all the notes that were in it.  You then told him to put the till drawer on the counter, which you did, and you took the entire $1 and $2 coins putting them in the bag.  You pointed the knife at him again and demanded that he open the register, which he did, and you took all the money from that register as well. 

6You repeatedly were demanding cigarettes.  He opened the cigarette cabinet and gave you two handfuls of cigarettes which were also put in the bag.  You then went to leave but, the doors had automatically locked after you entered.  You shouted at the victim to, "open the fucking door" which he did.  You then ran into Finlay Street in Frankston.  The sum total that you got from this offending was apparently $350 in cash and $264 worth of cigarettes.          

7On 3 May you again had been at work and at 1.57 am in the morning you attended a United Fuel service station in Seaford.  You entered the front door of the service station and waited for the doors to be unlocked, as with the previous matter.  The victim in the matter thought you were a customer and so went ahead and unlocked them.  Upon the doors opening you again pulled a black cloth or scarf from around your neck over your face covering your mouth and nose.  You approached the counter, produced a large knife and pointed it at the victim.  Again an Aldi plastic bag was produced.  The victim moved back from the counter.  You reached into your left‑hand pocket and retrieved the pair of pliers which you again used to cut the security wires.  The victim said that he was shocked and had no idea what to do.  There was another person in the premises at the same time.  You were again wearing the same type of clothing which became important later in so far as identification is concerned but there is no real significance in these sentencing remarks.  You again were at the counter holding the knife and pointing it towards both of the people who were there and demanding money.  The tray was taken out of the register till and placed on the counter.  You took all the money from it, including the coins.  As before, when that door was empty you demanded the cigarettes and you were given some packets.  You then told them to unlock the front doors and you left.  That particular offending netted you $600 in cash and approximately $35 worth of cigarettes. 

8Again on 16 May with the same modus operandi you attended at a Coles Express service station, which I am assuming is in the Frankston area.  At approximately 1.20 am you walked from your vehicle which you parked nearby.  Again the front door had to be unlocked and you entered pulling the black scarf over your mouth again.  The victim in that matter, Mr Harpal Bhullar, thought that you were a customer and he also had unlocked the front doors.  Another colleague of his was in the premises and they were both behind the counter register area.  As the service station opened you again pulled the mask over your mouth and covering your face, all but for your eyes.  You again pulled out a large knife and again an Aldi bag and demanded all the money.  Once again you cut the security wires with the pliers and you yelled at Mr Bhullar not to look at your face.  You then demanded money and in the end were given money and cigarettes, approximately $140 in cash and the cigarettes worth approximately $250.  You then exited the same way by the victims unlocking the door. 

9As I understand it, all these matters were on CCTV footage and when police were able to detect you because of your vehicle having been parked in the area, the arrest was made very shortly thereafter.  I do not need to go through all the details as to how identity was to be proved.  You were interviewed by the police and made a no comment record of interview, which was your right, and you ultimately pleaded, guilty, subsequent to a committal. 

10I have before me a victim impact statement from the victim of the last armed robbery who describes the terror that offending of this nature causes, the ongoing psychological difficulties that it has caused not only him but his family.  That is the almost inevitable result of offending of this nature and it is a serious one indeed.  I obviously take that victim impact statement into account in this sentencing exercise.  Offending such as this has to be regarded as serious.  There is clearly an element of premeditation, both in the use of a disguise and in the carrying of the pliers to disable the security systems.  Each one of them was conducted in the early hours of the morning when the victim would be essentially alone and somewhat defenceless.  On each occasion they believing you were a customer opened the doors to let you in. 

11It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  It was not suggested other than an active gaol sentence of significant proportions was appropriate and that is what will occur. 

12Submissions were put on your behalf that a gaol term followed by a community corrections order would be sufficient in this particular situation.  For the reasons that I will outline shortly, I do not think that is the circumstance here.  I think it is more a matter for the Parole Board to consider your position in the future.  None of the conditions within a community corrections order would really be applicable to you.  I think it would be gratuitous to make a work hours condition for somebody who had already undergone a significant gaol sentence.  Matters such as curfews and exclusion zones, because you do not have a drug dependence, because you do not have an alcohol dependence, and because you do not associate, as I understand it, at least, with criminals, would be of little purport.  The punitive aspects of a community corrections order would therefore in your particular situation be really only supervision and there would be many who would not regard that as a punishment at all. 

13As I said, I have listened carefully to what your counsel has said, but I think that yours is a head sentence with a minimum term situation, but I have to take into account and consider firstly the concept of whether a CCO would be sufficient in these purposes, and I do not think I need to go into any more detail than that. 

14Mr McQuillan, I assume he's not in protection. 

15MR McQUILLAN:  Sorry, Your Honour? 

16HIS HONOUR:  I've assumed he's not in protection.

17MR McQUILLAN:  No, he's not in protection.

18HIS HONOUR:  The sentence that you will undergo and have undergone will be at the risk of deportation and the psychological effect that that may have on you I take into account.  At this point in time it is no more than a risk  and what happens in the future happens in the future. 

19In a very succinct plea, if I may say so, put on your behalf your history was outlined.  You are now 26 years of age.  You came from New Zealand a couple of years ago.  You are of Maori and Tongan descent.  Your mother, a Maori, still resides in New Zealand and your father is in the army as a cook in Darwin.  He has some contact with your wife who I will mention again in a moment.  You are the youngest of six children and on what I was told all those children work and enjoy gainful employment. 

20You yourself upon leaving school at the age of approximately 17 have always been in work and is a very good sign.  You initially worked at the meatworks,  in Auckland as I understand it.  You then were doing roadwork and you ultimately over there were driving a pick‑up vehicle for a waste company.  You changed jobs every year or so in order to obtain more money.  You came to Australia because you had a cousin working at Coca‑Cola Amatil in Langwarrin, I think it is, and you came to, one, get more money and, two, to have a, you believed, better lifestyle.  You lived with your cousin for a period of time and then were able to obtain rental accommodation and were able to buy a small car.  Once you had some security, your wife who I will refer to in a moment and your two children came out to Australia. 

21Your wife gave sworn evidence on your behalf and I must say that I found her an impressive young woman.  She confirmed the history that your counsel had given me, that in the time leading up to this there had been disharmony within the relationship, that she was very homesick and wanted to go home and that because the casual work that you were doing was being done on a much more limited basis because of the ways the hours worked that there were tensions over money.  It would seem it was in that scenario of marital disharmony and tensions over money that this offending occurred.  She confirmed that you do not have a drug habit, that alcohol has got nothing to do it and as and I understand it there is no suggestion of gambling. 

22She said that you had expressed deep remorse to her and also to her father who came out from New Zealand to talk to you. 

23You have been with her since you were both 17 years of age.  You married when you were both 19 and you have two children aged seven and five.  She told me, and I accept, that you had been, up until now at least obviously, a very good father and a very hardworking man.  She confirmed the difficulties that the relationship was having at the time this offending and indeed when you were arrested she was in New Zealand having a break but immediately returned to Australia.  She intends to support you and from the references that are before me so does her family.  You will be ultimately released into stable accommodation with good family support and I am sure that that will bode well for your rehabilitation.  She goes to see you every second week in prison and has the daunting task of having to take the children in with her. I am fully aware of the distress that that can cause a person such as you, where previously you had been a father to have your kids seeing you in those circumstances.  In any event, she has had to go to work since you have been locked up.  She works for an insurance company.  She has been able to look after the kids and maintain the residential address through her own endeavours and that is not only very much to her credit but also assists you. 

24You committed this offending, it would seem, for money in considered but nevertheless somewhat bizarre circumstances.  What I have determined is the only appropriate sentence to be imposed is one of custody with a minimum term.  In your particular situation, as I have indicated, I am impressed by the evidence of your wife and I am impressed by the strength of the character references that have been tendered on your behalf.  I am well aware of the importance of family within the culture that you come from and I am sure that upon your release you will have stable accommodation.  You will have financial support and, as was indicated to me, you have a very good work ethic.  You are also still relatively young.  Those factors all play very much a part in not only the sentence that I impose, but the minimum term that I intend to impose. 

25Also, as I have indicated, the prospects of your rehabilitation should be greatly enhanced by the fact that there is no risk of a, as is so often the situation with these matters, of a relapse into drug use or alcohol abuse or gambling.  If your rehabilitation can be affected, and I see no reason why it can't be, then in that particular situation the risk of you reoffending, certainly in this type of way, should be very low indeed.  I have taken into account all the matters put on your behalf and in this particular situation I am prepared to give an opportunity for parole that will be earlier than might otherwise be the case.  The head sentence, however, must remain reflective of all the sentencing principles and the seriousness of people committing offending such as this.  As the victim says in his victim impact statement, it relaxes him somewhat to know that you are in prison but he lives with the knowledge that there are other people out there doing the same thing.  General deterrence is the way in which that has to be addressed and there is realistically no other. 

26In any event, taking all those matters into account, on Charge 1 you are sentenced to be imprisoned for two and a half years, on Charge 2, two and a half years, and on Charge 3, two and a half years.  I direct that ten months of the sentence imposed on Charge 2, ten months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.  That gives an effective head sentence of four years and two months.  Because of all the circumstances that have been described to me I have indicated I will give an opportunity for parole earlier than would otherwise have been the case and accordingly I direct that you serve a minimum period of two years before becoming eligible for parole. 

27I direct that 417 days be reckoned as having been served under this sentence. 

28So far as s.6AAA is concerned, just so you fully understand the benefits of you having pleaded guilty and saved the victims from the trauma of going through a trial, but for that plea of guilty on these three matters I would have sentenced you to be imprisoned for a period of six years with a minimum term of four. 

29So are there any other orders I have to make? 

30MR McQUILLAN:  No.  As Your Honour pleases.

31MS WARDA:  No, if the court pleases. 

32HIS HONOUR:  Yes, I thank counsel for that.

33MR McQUILLAN:  Thank you, Your Honour. 

34HIS HONOUR:  10.30 tomorrow. 

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