Mausii v The Queen

[2012] VSCA 223

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0040
JAMES MAUSII	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 September 2012
DATE OF JUDGMENT/ORDER:	13 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 223
JUDGMENT APPEALED FROM:	R v Mausii (Unreported, County Court of Victoria, Judge Howie, 16 December 2011)

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CRIMINAL LAW – Appellant pleaded guilty to four charges of armed robbery, five charges of robbery, one charge of reckless conduct endangering a person, two charges of theft, two charges of causing injury intentionally and one charge of criminal damage – Sentenced to four years eight months’ imprisonment with a minimum non-parole period of two years six months – Appellant 20 years’ old at time of offending – Youth Justice report obtained – Whether sentencing judge made findings on the basis of the Youth Justice report in conflict with other evidence on the plea without affording the appellant procedural fairness – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F H Todd	Robert Stary Lawyers
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I invite Justice T Forrest to deliver the first judgment.

T FORREST AJA:

1. The appellant pleaded guilty before the County Court to four charges of armed robbery, five charges of robbery, one charge of reckless conduct endangering a person, two charges of theft, two charges of causing injury intentionally and one charge of criminal damage.  On 16 December 2011 the appellant was sentenced as follows:

Charge on Indictment C1107976[1]	Offence	Maximum	Sentence	Cumulation
5	Armed robbery [Crimes Act (Vic) 1958 s 75A]	25 years	15 months	Base
11	Robbery [Crimes Act (Vic) 1958 s 75]	15 years	12 months	3 months
14	Armed robbery	25 years	15 months	4 months
16	Robbery	15 years	12 months	4 months
17	Robbery	15 years	12 months	4 months
18	Robbery	15 years	12 months	4 months
21	Reckless conduct endangering a person [Crimes Act (Vic) 1958 s 23]	5 years	4 months	2 months
Charge on Indictment C1108083[2]	Offence	Maximum	Sentence	Cumulation on Indictment C1107976
1	Armed robbery	25 years	15 months	4 months
2	Robbery	15 years	9 months	3 months
3	Theft [Crimes Act (Vic) 1958 s 74]	10 years	4 months	1 month
4	Theft	10 years	4 months	1 month
5	Armed robbery	25 years	15 months	4 months

[1]Referred to herein as the first indictment.

[2]Referred to herein as the second indictment.

6	Intentionally cause injury [Crimes Act (Vic) 1958 s 18]	10 years	9 months	3 months
7	Intentionally cause injury	10 years	9 months	3 months
8	Criminal damage [Crimes Act (Vic) 1958 s 197(1)]	10 years	3 months	1 month
Total Effective Sentence:		4 years 8 months’ imprisonment
Non-Parole Period:		2 years 6 months
Pre-sentence Detention Declared:		8 days
s 6AAA Statement:		Total effective sentence of 6 years with a non-parole period of 4 years
Other relevant orders:		- Compensation orders (x 3)  - Disposal order

Factual background

1. The appellant, in a course of lawless behaviour, committed a series of offences over a period of approximately three months between 24 February 2011 and 19 May 2011.  The appellant was 20 years of age at the time of the offending and at the date of his sentence. 

1. At around 4.45 am on 24 February 2011 the appellant, in company with Gerard Popea and Conrad Tuala, attended at the Hampton Park Newsagency.  Pryanka Tennakoon, Shariful Islam and Fabrice Giullemain, who were staff members of the newsagency, were preparing newspapers for delivery.  The offenders covered their faces with hooded sweatshirts and bandanas.  The appellant was armed with what appeared to be a wheel brace, Mr Popea was armed with a golf club and Mr Tuala with a small axe.  The offenders stole $650 from the cash register and decamped.  This conduct was the subject of charge 1 on the second indictment (armed robbery). 

1. At around 3.10 am on 13 March 2011 the appellant, together with four others, entered the McDonalds restaurant at Cranbourne and approached a group of friends, being Simone Welgas, Todd McGrath and Hayden Taylor.  Each of the offenders wore a red bandana over their face.  A mobile phone was stolen from each of Simone Welgas and Todd McGrath and an iPod was stolen from Hayden Taylor.  This offending was the subject of charge 2 (robbery) and charges 3 and 4  (theft) on the second indictment.

1. On 14 March 2011 the appellant and two other males robbed Xio Jun Wang of 50 packets of cigarettes at a milk bar in Clayton.  The appellant was armed with a steel pole, which he pointed at Mr Wang and shouted ‘Give me the money, quick.’ The appellant jumped over the counter and attempted to strike Mr Wang in the face with the pole.  He then punched Mr Wang 10 to 15 times to the face before fleeing with the cigarettes.  This conduct was the subject of charge 5 (armed robbery) on the first indictment.

1. At around 1.45 am on 17 April 2011 the appellant and three others were in a car at ‘The Lookout’ in Endeavour Hills.  Ms Hayley Taranto and Mr Andrew Sexton were parked in another car.  The appellant and his co-offenders robbed Ms Taranto of money and Mr Sexton of a mobile phone.  The driver’s side door to the victims’ car was pulled open and one of the offenders demanded money and other items.  The passenger side window was then smashed with a cricket bat.  Over the next few minutes both rear doors and the windscreen were smashed.  Mr Sexton was hit to the head and body with the bat, and continued to be hit after he had handed over his mobile phone.  Ms Taranto was struck with fists and her hair was pulled.  At that point another car arrived at ‘The Lookout’ and the cowardly attack ceased.  The appellant had remained in the car during the robbery.  Mr Sexton suffered a broken cartilage to his nose, swelling and bruising to his left eye and abrasions to his face, neck and arms.  Ms Taranto suffered bruising to her lower leg, cuts to her arms and lumps and tenderness to her head.  This conduct was the basis of charge 5 (armed robbery), charge 6 (intentionally causing injury), charge 7 (intentionally causing injury) and charge 8 (criminal damage) on the second indictment.     

1. At around 1.30 on 14 May 2011 Ennio Anselmi was walking home along Narre Warren-Cranbourne Road in Narre Warren.  At that time the appellant was travelling down that road in a car, together with other passengers.  The car stopped and one of the passengers asked Mr Anselmi whether he wanted a lift and whether he had petrol money.  Before Mr Anselmi could get in the car he was struck to the face and fell into the gutter.  He lost consciousness.  Mr Anselmi’s wallet was taken and he was left unconscious in the gutter.  This was the basis of charge 11 (robbery) on the first indictment.

1. At around 8 pm on 18 May 2011 the appellant, in company with three others, entered a milk bar in Noble Park.  Yi Zhou, the owner of the milk bar, was working there at the time.  One of the offenders put a beer bottle to Mr Zhou’s neck and forced him into the back of the shop.  He was threatened and struck to the face with the bottle.  The offenders stole $200 cash and 51 packets of cigarettes.  This conduct was the subject of charge 14 (armed robbery) on the first indictment.

1. Later that same day, at around 11.10 pm on 18 May 2011, the appellant, in company with three others, robbed Edwin Huezo of a mobile phone and a Holden Nova car in Clayton South.  Mr Huezo was seated in his car making a phone call.  The appellant pulled up in another car and attacked him.  The appellant smashed the driver’s side window, took the keys from the ignition, pulled Mr Huezo from the car, demanded money, punched Mr Huezo to the mouth and kicked him to the ribs.  The appellant then drove away in Mr Huezo’s car.  This conduct was the basis of charge 16 (robbery) on the first indictment. 

1. A few hours later, at 1.45 am on 19 May 2011, the appellant, together with two others, pulled up next to David Jarcut, who was parked in his mother’s Hyundai car outside a restaurant on Princes Highway, Narre Warren.  The three offenders pulled Mr Jarcut out of the car, punched him to the face and robbed him of the car and his mobile phone.  This is the basis of charge 17 (robbery) on the first indictment.   

1. At 2.40 am that morning, 19 May 2011, the appellant and his two co-offenders robbed Michael Gall of his taxi in Dandenong Road, Carnegie.  They approached Mr Gall as he was opening the car door and punched him to the face.  Mr Gall fell to the ground and struck his head.  The appellant and his co-offenders got into the taxi and drove away.  This conduct formed the basis of charge 18 (robbery) on the first indictment.  

1. On 19 May 2011, police observed the appellant driving the stolen Hyundai car at high speed in Dandenong Road, St Kilda.  The police attempted to intercept the appellant, but he refused to pull over.  He drove through four red lights and reached speeds estimated to be between 100 and 160 kilometres per hour.  The car was later abandoned in Moorabbin and the appellant decamped with the other occupants of the car.  Police eventually located the appellant and his co-offenders hiding in a drain at Moorabbin airport and arrested them.  This was the basis of charge 21 (reckless conduct endangering persons) on the first indictment. 

This appeal

1. On 25 June 2012, Harper JA granted the appellant leave to appeal against his sentence on the following ground:

Ground 1 – In arriving at the sentence, the learned judge made findings on the basis of material contained in the Youth Justice report that were in conflict with other evidence on the plea without affording counsel for the accused procedural fairness.

His Honour refused leave on ground 2, which alleged that the sentence imposed was manifestly excessive and in breach of parity.

1. To understand this ground it is necessary to set out a little of events at the plea hearings.  On 9 December 2011, Mr Mausii pleaded guilty to the charges on the second indictment.  He had already been arraigned on the first indictment.  A plea in mitigation was made on his behalf.  His counsel acknowledged the objective seriousness of the offending, but pointed to the following factors in mitigation:

·The appellant, at the time of the plea, was 20 years old, immature and susceptible to peer pressure.  He had no prior convictions and one minor subsequent conviction.

·Rehabilitation ought be the primary objective of the sentence to be imposed.

·The offending was isolated in time and no strong history of violence was disclosed.

·A term in adult prison would likely reinforce patterns of violent behaviour.

·The appellant had strong family and community support.

·The appellant had made extensive admissions and his pleas came at an early stage.  His admissions were the only evidence of his participation on some of the charges.

1. Counsel for the appellant at the plea submitted that a Youth Justice Centre Order[3] was the appropriate disposition.  His Honour directed that the appellant be assessed for suitability for a Youth Justice Centre Order and the hearing of the matter was adjourned for that assessment to be carried out.

   [3]Under s 32(1) Sentencing Act1991.

1. At the plea hearing, counsel for the appellant tendered the following reports:

(a)       Psychological report prepared by Mr Anton Bladwell, undated;  and

(b)      Supervised Bail Progress report prepared by Ms Bridget McGeoch dated 11 November 2011.

1. It is unnecessary to recite the detail of these reports.  Relevantly, Mr Bladwell concluded that the appellant’s ‘personality structure’ tended towards impulsivity, egocentricity, coldness, aggressiveness and tough-mindedness, but that the appellant had a truthful personality.  He opined that the appellant was susceptible to deviant behaviour when engaged with peer groups who regarded criminal behaviour as the ‘norm’.  The appellant’s tendency to be peer influenced could in fact be used to his advantage in his rehabilitation if appropriate peer models were provided.

1. On 15 December 2011, the suitability assessment for a Youth Justice Centre Order was completed by Mr Gene Bell, Senior Court Advice Officer, Youth Justice, Department of Human Services.  In some respects, it was adverse to the interests of the appellant.  It expressed the author’s view that the appellant:

·       had limited insight into the serious nature of his offending;

·       had had continual engagement with Youth Justice which went some way in establishing reasonable prospects for rehabilitation;

·       was unwilling to engage in anger and aggression related counselling;

·       had advised that he would find the level of immaturity with a younger custodial population difficult to tolerate;

·       was not a suitable candidate for a Youth Justice Centre Order; and

·       was not particularly immature, impressionable or particularly vulnerable to undesirable influences in adult prison.

1. It is obvious enough that the assessment report cut across some of the matters put on the plea by the appellant’s counsel.  It is equally clear that certain findings in his Honour’s reasons for sentence relied upon the opinions expressed by Mr Bell.  In particular, his Honour referred to the appellant’s limited insight, his unwillingness to undertake counselling and the fact that he was not particularly vulnerable to undesirable influences in adult prison.

1. It is against this background that the appellant submits that in making these findings based on the material contained in the Youth Justice assessment report, his Honour denied the appellant procedural fairness.  The ground was developed in submissions to argue that his Honour was required to disclose his intention to rely on the relevant material in the assessment report, and his failure to do so denied the appellant the opportunity to address the contrary opinions expressed by the appellant’s psychologist.

1. The plea resumed on 16 December 2012.  It is apparent that counsel for the appellant had been supplied with the Youth Justice assessment report only shortly before, but that she had had sufficient time to read and absorb its contents.  The transcript contains the following exchange:

His Honour:   And [counsel], you’ve read Mr Mausii’s report?

Defence Counsel:      I have, your Honour.  I don’t really wish to address your Honour further.  Obviously matters in the psych report of Mr Bladwell’s will in some respect conflict with the findings of the writer of this report.  I don’t believe I can take the conflict in those two opinions any further, your Honour.

His Honour:   I just really want to be clear to you about two things.  One is that when I heard the plea, whenever it was, a few days ago, I didn’t have firmly in my mind at that time the offences on the earlier indictment, which of course I’ve looked at again since then, and there were a number of them involving your client, and having considered them again I really have formed the view that a youth justice order wasn’t an appropriate order for him and as you’ll appreciate subsequent to that I’ve received the report of Mr Bell and the other author, which by and large confirms the view that I’d formed about what was appropriate, so I’ll be sentencing him to a term of imprisonment.

Defence Counsel:      As your Honour pleases.

1. As Kirby P observed in Parker v DPP:

Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-marker to a different view. [4]

[4]28 NSWLR 282, 296. See also Brand v Parson [1994] 1 VR 252, 257; R v Duong [1998] 4 VR 68, 77-78; DPP v Shoan 176 A Crim R 457.

1. For my part I consider that the appellant was not denied procedural fairness in the way the impugned events unfolded.  His Honour drew the relevant report to counsel’s attention and supplied it to the appellant’s counsel.  As I have said it is apparent that counsel had sufficient time to read it and absorb its contents.  She was offered the opportunity to address his Honour further.  She declined that invitation whilst, at the same time, observing that there were conflicts of opinion between the psychologist and the author of the Youth Justice assessment report.  Should counsel have thought she needed more time to read the report or seek instructions it was open to her to seek that time and yet she did not.  In that exchange, his Honour made it clear that he was not proposing to accede to counsel’s submission that the appellant be sentenced to detention in a Youth Justice facility.

1. In my view there is nothing about the events that I have outlined that indicate a departure from fair practice or procedural fairness.  In my view a fair opportunity was presented for contrary argument and it was declined.  I should say that a reading of the full plea transcript demonstrates the appellant’s counsel to be a highly competent advocate – persuasive and forceful.  That impression was reinforced during the hearing of this appeal.  I would dismiss this ground of appeal.

1. In the event that I am wrong and that error has been demonstrated I ought observe that I consider the sentence imposed by his Honour as being well within the sound discretionary range and, in my view, lenient.  The appellant was an active participant in a lawless spree of terror over several months.  Soft targets were chosen.  They were always outnumbered.  Violence was the first option.  I quote his Honour:

You believed you could just do as you liked, attacking and robbing people at will.

The innocent victims of this offending were profoundly traumatized.  The objective gravity of the offending called for a significant adult prison sentence, notwithstanding the appellant’s youth and the other mitigating factors that I have referred to earlier in these reasons.  For my part any resentencing exercise would result in, at best for the appellant, the same sentence being imposed.

1. I would dismiss the appeal.

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