Director of Public Prosecutions v Vaofusi
[2016] VCC 193
•26 February 2016
| Revised NotRestricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-00116
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN VAOFUSI |
---
| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 26 February 2016 |
| CASE MAY BE CITED AS: | DPP v Vaofusi |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 193 |
REASONS FOR SENTENCE
---Subject: Assault with intent to rob; Robbery
Catchwords: Deportation
Legislation Cited: Migration Act 1958 (Cth)
Cases Cited: DPP v Zhuang [2015] VSCA 96
Sentence: 14 months imprisonment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Skepper | |
| For the Accused | Mr D. Cronin |
HER HONOUR:
Charges
1John Vaofusi, you have pleaded guilty to one charge of assault with intent to rob and two charges of robbery. The maximum sentence for these offences is 15 years' imprisonment.
Circumstances of offending
2The circumstances of the offending are set out in the prosecution opening. Charge 1 of assault with intent to rob Matthew Bereki relates to your actions on 18 November 2013, when you were visiting Maria Yakavides, a drug dealer who resided in a unit in Hoppers Crossing.
3On that day, a number of other people were present, including Tolga Ozdemir, Jonathan Peres-Martinez, Matthew Bereki and Nicholas King. As a matter of convenience, I will refer to them now by their surnames.
4When you were in the garage with Bereki and Ozdemir, you became aggressive towards Bereki. You demanded that he give you the keys to his car and grabbed him by the shirt. You were holding a crowbar and Ozdemir was holding a rubber mallet. Bereki had a heart condition and he had a panic attack and started shaking. You grabbed him around the throat and threatened him with a crowbar. You demanded that he handed over his car keys, but he refused to do so a number of times. He was then hit to his head and to the left side of his body. He fell to the ground, but managed to get out of the garage.
5Yakavides then drove him to his parents' place and then the hospital. On examination at hospital, he was found to have tenderness in the area of his left ribs, right scalp and right cheek.
6Charge 2 of robbery relates to your actions of robbing Mr King of his car and car keys. After Yakavides left the unit, King went outside and he locked the door of the unit as he was scared about what might happen. Martinez came to the front door and asked to come back inside to get his backpack and then leave. As King could only see Martinez outside, he let him in. When King opened the door, you barged in, you told him to be quite, you had a crowbar with you and you threatened to hit him if he did not settle down.
7Martinez then held King by his arms and you took his car keys from his pockets. You left the unit in King's car, which was returned outside his house the next day.
8Charge 3 of robbery relates to your actions in again robbing King of his car and car keys. This time on 20 December 2013. On that date, King and his friend, James Kittery, went to a service station in Morris Road, Hoppers Crossing to meet Shannon Sutton. You appeared at King's car about ten minutes after Sutton arrived. You were wearing a hoodie with the hood over your head and you had a towel over your hand. You managed to get into the car when Sutton left and you said to King, "Why did you lag on me?" And you punched him to the jaw. You told him to get out of the car or you would stab him. King and Kittery got out of the car, they were frightened and when you told King to give you the car keys, he threw them at you. You then drove off.
9You were arrested at 7 pm the same day at the Werribee Plaza and King's car was found later in January at the McDonald's carpark. In your interviews with the police, you denied committing these offences.
10With respect to the charge of assault with intent to rob Matthew Bereki, it was submitted by your counsel that it was not pre-planned. You had been working in the garage on Yakavides' car at the time and the tools used by you had been present in that garage. It was also submitted that no lasting injury was caused to either Bereki or King. In sentencing you, I have accepted these submissions.
Personal circumstances
11You were born in Auckland in New Zealand. You are now 26 years old. Your father is a pastor and your mother works in childcare and you have five siblings. Your family came to Australia in 2003 and you completed your secondary schooling here. After leaving school, you worked in a lot of different jobs as a labourer. You married in 2008 and you have three daughters. You and your wife separated about three years ago. Apparently that split was acrimonious and you have had little contact with your daughters.
12At about this time, you became involved with a negative social group and you started using ice. It was in this context, it was submitted, that your offending took place.
13Although you have no prior convictions, on 18 September 2014 at the Broadmeadows Magistrates' Court, you were sentenced to 12 months' imprisonment on charges including affray, intentionally cause injury, recklessly cause injury, burglary, theft and robbery. Six months of that sentence was suspended. You were arrested on unrelated matters on 20 December 2013 and you have not been out of custody since that date. The period of time you spent in custody on this unrelated matter was from that date until 7 August 2014. You were not charged with the current offences until 8 August 2014 and since then, you have also served the sentence of six months with respect to the Broadmeadows Magistrates' Court matters. So the official pre-sentence figure on these current offences was, at the time of the plea hearing, 386 days. I am sure I will be informed as to what it is on today's date when I get to the end of this sentence.
Mitigating circumstances
14In the plea, on your behalf, the following matters were relied upon in mitigation of your offending:
·your plea of guilty;
·your lack of prior convictions;
·you have a close and supportive family and a good work history;
·and the threat of deportation, which was likely to have a significant impact on your relationship with your daughters given that they live with your ex-wife in Melbourne and are unlikely to return with you to New Zealand.
15In addition, there was a reference from two youth workers who have had contact with you on a number of occasions, Pastor Terry Folau and Lee Robinson. In this reference, they described your offending as uncharacteristic. They were of the opinion that at the time of your offending, you were not coping with family difficulties. They believe that with the right support and positive encouragement, you could be a better father to your children.
16A further matter relied upon by your counsel in mitigation of your offending was the time that you had already spent in custody. In particular the 230 days you spent in custody on a matter where you were eventually found not guilty at trial. This period of time was asked to be taken into account as Renzella time. Counsel also asked the court to take into account that you will serve your term of imprisonment in expectation of being deported following your release.
17In sentencing you, I take into account both specific and general deterrence. While neither Mr Bereki or Mr King suffered any lasting injuries by your actions, no doubt they were very frightened at the time. Your behaviour was completely out of line. It involved both violence and the threat of violence.
18However, I also take into account all the mitigating factors mentioned by your counsel. I have given you a discount for your plea of guilty. Although it was at a very late stage, it had a utilitarian benefit and saved the witnesses the ordeal of giving evidence. I accept that you are now remorseful for your actions and that you do have prospects of rehabilitation. This is largely because of the fact because you have got a good work history and strong family support.
19In sentencing you, I have also taken into account the principles of totality in relation to the long period of time you have spent in gaol and I have made an allowance for what is called Renzella time. This is in relation to the period you spent in custody on the matter on which you were found not guilty. In addition, I have taken into account the principle of parity. With regard to the sentencing dispositions your co-offenders received.
20With respect to the possibility of deportation, apparently you were previously eligible for citizenship, but you did not make an application. You have been advised that your visa has been cancelled and you are working with an immigration lawyer in an effort to remain in Australia.
21The most recent decision of the Court of Appeal with respect to how the court is to approach the issue of deportation is a case called DPP v Zhuang [2015] VSCA 96. In that case, the Court of Appeal referred to the fact the Migration Act 1958 (Cth) has been amended by the insertion of s.501(3A). That section requires the Minister to cancel the visa of the kind possessed by you if the visa holder was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against the law of the Commonwealth, State or Territory if that person has been sentenced to a term of imprisonment of 12 months or more.
22On p.23 of the judgment in Paragraph 54, the Court of Appeal stated that:
"Absent some further amendment to the Migration Act between now and the completion of the respondent's sentence, the respondent can now expect with some certainty to be deported upon her release from custody."
23And they were referring to the lady in the case they were dealing.
"The prospect presently being capable of quantification, it is now a mitigatory fact which, as a judge has already found, would increase the burden of her sentence."
24In other words, the Court of Appeal has said it is a factor that I can take into account in sentencing you. I accept that you find it hard not having regular contact with your daughters and that the threat of deportation, given the effect it would have on your relationship with your daughters, weighs heavily on you.
25Taking all these relevant sentencing considerations into account, I sentence you as follows. On the count of assault with intent rob, you are sentenced to 12 months' imprisonment. On Count 2, you are sentenced to six months' imprisonment, that is the count of robbery. On Count 3, you are sentenced to eight months' imprisonment. Two months of the sentence on Count 3 is cumulative on the sentence on Count 1. This means that your sentence is effectively a sentence of 14 months and I declare 386 days as pre-sentence detention. On my reckoning, this means that you have about a month left to serve.
26Pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to two years and four months to serve 20 months. I am obliged to cancel your licence. Is it valid currently?
27MR CRONIN: I think it would be just based on his age and how long it would have been granted for.
28HER HONOUR: I will make that for a period of six months. Is a disposal order sought?
29MS SKEPPER: No, Your Honour. All those items related to the other indictment which was discontinued.
30HER HONOUR: There is a forensic sample order?
31MS SKEPPER: Yes, Your Honour.
32HER HONOUR: I will make a forensic sample order on the basis of it being in the public interest and I believe it was by consent?
33MR CRONIN: It was, Your Honour, yes.
34HER HONOUR: It is by consent. That means they can take a sample scraping from your mouth. If you object to that, they can use reasonable force to obtain it from you, but it is not painful and I do not see there being any problem with them taking that sample for you.
35So you have only got about a month left to go, Mr Vaofusi and obviously you have got your immigration issues that you are going to have to sort out with your lawyer. I do not think there is anything else.
36MR CRONIN: No. Your Honour, the only question that I have got and I certainly do not know the answer to this and I just raise it is if it is a sentence of greater than 12 months, are you mandated to set a non-parole period?
37HER HONOUR: Two years, I think is it not?
38MR CRONIN: Two years.
39HER HONOUR: That I am mandated to set a non-parole period.
40MR CRONIN: Yes, I think that is right. Yes that makes sense.
41HER HONOUR: Because I have taken into account the Renzella time and all the time he has spent in gaol.
42MR CRONIN: I do not quibble with that.
43HER HONOUR: I basically took the view that he more or less other than another month, I thought he had done sufficient time.
44MR CRONIN: That makes sense. Thank you, Your Honour.
45MS SKEPPER: Your Honour, do you need another copy of the forensic orders or do you have them there?
46HER HONOUR: We have got them, I believe, and I have signed them. It is all done.
47MS SKEPPER: There is only one other issue, Your Honour. You mentioned no priors, he did have a shop ‑ ‑ ‑
48HER HONOUR: Non conviction.
49MS SKEPPER: Non conviction, yes.
50HER HONOUR: Yes.
51MS SKEPPER: All right, thank you.
52HER HONOUR: So I think the technical term is I can say he has no priors because he has no prior conviction.
53MS SKEPPER: Yes, Your Honour.
54HER HONOUR: It did not, in the face of things, it did not really amount to an awful lot.
55MS SKEPPER: No.
56HER HONOUR: All right.
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