Pasi v The Queen

[2012] VSCA 246

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0073
FOISA PASI	Appellant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 September 2012
DATE OF JUDGMENT	3 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 246
JUDGMENT APPEALED FROM	DPP v Ulutui, Fepuleai and Pasi (Unreported, County Court of Victoria, Judge Wood, 23 February 2012)

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CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to one charge of aggravated burglary and one charge of armed robbery – Sentenced to 4 years’ imprisonment with a minimum non-parole period of 2 years 9 months – Appellant 20 years old at time of offending – Whether extent of cumulation ordered manifestly excessive – Whether sentence and non-parole period manifestly excessive – Whether trial judge gave sufficient weight to appellant’s youth – Offences elementally and factually discrete – Grave offending – Sentence within sound discretionary range – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Leanne Warren & Associates
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with T Forrest AJA.

T FORREST AJA:

1. On 5 October 2011 the appellant pleaded guilty before the County Court to one charge of aggravated burglary and one charge of armed robbery.  On 23 February 2012, following a plea hearing on 5 and 6 October and 8 December 2011, the appellant was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [s 77 Crimes Act 1958 (Vic)]	25 years’ imprisonment	2 years’ imprisonment	1 year
2	Armed robbery [s 75A Crimes Act 1958 (Vic)]	25 years’ imprisonment	3 years’ imprisonment	Base
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		2 years, 9 months’ imprisonment
Pre-sentence Detention Declared:		164 days
6AAA Statement:		5 years, 5 months’ imprisonment, with a non-parole period of 3 years, 9 months’ imprisonment
Other orders: Compensation of $50 to be paid to Colin Graham Forensic sample retention order

Factual background

1. Colin Graham worked as the night manager of a Formula One Hotel.  He resided on the first floor of the hotel.  Access to the first floor was via a security office that contained the CCTV hard drive which operated all of the internal and external cameras at the hotel.  From 10.00pm onwards the front door of the hotel was closed to the general public.  A swipe card, which was issued to hotel guests, was required

to access the front door after that time.  Entry into Mr Graham’s room required a key that only he and the hotel manager had.

1. On 10 February 2010, Mr Graham and his partner Vikki Imeson retired to bed some time after 11.30pm.  Shortly after 2.00am on 11 February 2010 they were woken when the appellant, together with his co-offender Laki Ulutui, entered their room.  The appellant wore gloves and was armed with a handgun.  This conduct constituted the charge of aggravated burglary.

1. The appellant said to the victims ‘Don’t fucking move or I’ll shoot.’  Mr Ulutui said ‘If he moves, shoot him.’  Mr Ulutui then entered the security office while the appellant kept guard over Mr Graham and Ms Imeson.  They were terrified.  The appellant pointed the gun at Mr Graham’s face from 30 centimetres away and said ‘I will fucking kill you if you move.’  Ms Imeson covered her face.  Mr Ulutui took two mobile phones and Mr Graham’s wallet, which contained $20 and various credit cards.  This conduct was the subject of the charge of armed robbery.  

1. While the appellant and Mr Ulutui were inside, another co-offender Peti Fepuleai entered the security office and removed the CCTV hard drive while a further offender kept a lookout by the stairwell.  Mr Fepuleai was in possession of bolt cutters at the time.  This conduct amounted to a charge of theft and a charge of aggravated burglary against Mr Fepuleai.  

1. Mr Ulutui noticed Mr Graham looking at his face and said ‘Stop looking at my fucking face.’  The appellant said ‘If you fucking move I will shoot you.’  The offenders then decamped.  Mr Graham immediately reported the matter to police, who arrived shortly thereafter.  A check revealed that the offenders had forced open the steel roller doors to the main office and stolen a safe valued at $4,168 and $1,566.77 in cash. 

1. The appellant was arrested and interviewed by police on 30 March 2010.  He made full admissions. 

This appeal

1. On 11 July 2012, Weinberg JA granted the appellant leave to appeal against sentence on the following grounds:

1.      The extent of cumulation ordered was manifestly excessive.

2.The sentence imposed and the non-parole period imposed are each manifestly excessive.

3.The learned judge erred by failing to give sufficient weight to the appellant’s youth and failing to mitigate his sentence accordingly.

1. All three grounds are interrelated and can be considered together.  There was a lot that could be said for the appellant at his plea.  He was young – 20 at the time of offending, 22 when sentenced.  He had experienced a very difficult early life but had established a good work history.  His home life was characterised by physical and emotional conflict with his stepfather.  He had left home and been unemployed for the three months before his offending, during which time he fell in with and ultimately lived with his co-offender Mr Ulutui.  It was accepted by his Honour that the older Mr Ulutui exacted considerable influence over the appellant.  Powerful character evidence was tendered on his behalf.  The appellant was described as pleasant and trustworthy, with a strong commitment to his church and the Samoan community. 

1. A psychologist’s report was tendered on the plea.  His Honour appears to have accepted the conclusion that ‘the appellant was a low risk of re-offending’ and noted that the appellant had attended 26 sessions with Youth Justice over the course of 12 months.  His Honour also referred to an assessment made by a senior court officer from the Youth Justice unit that the appellant exhibited no ‘entrenched criminal or antisocial attitudes.’  The appellant had no prior convictions and, in my view, his Honour was well justified in finding that the appellant’s prospects for rehabilitation were good.

1. Other matters in the appellant’s favour were relevant to sentence.  His plea of guilty entitled him to a sentencing benefit, as did his general cooperation with police.  The appellant provided a witness statement to police in relation to the potential prosecution of another person (not one of his co-accused).  His Honour found that the appellant’s cooperation with police and early plea of guilty demonstrated genuine remorse.

1. These factors were sufficient to sow a seed of doubt causing us to abandon tentative plans to deliver an ex tempore judgment.  For my part I am afraid that this seed has not germinated.  I consider that the objective gravity of the offending demands a substantial term of imprisonment.  The appellant was part of an armed combination that broke into a commercial/residential premises.  The object of the trespass was to commit a violent dishonest offence.  I consider this to be grave criminality and that the total effective sentence and the minimum non-parole period are well within the sound discretionary sentencing range, notwithstanding the powerful mitigating factors.  This was a difficult sentencing exercise.  The overall sentence, it seems to me, strikes a sensible balance between the gravity of the offending and the strong mitigatory factors that I have referred to.

1. The appellant submitted that the extent of cumulation ordered was manifestly excessive.  It was argued that the aggravated burglary and the armed robbery were part of the one course of criminal conduct and that if there were to be an order for cumulation at all it should have been modest and considerably less than 50 per cent of the term of imprisonment imposed for the aggravated burglary charge (two years).  It was submitted that the extent of the order for cumulation meant that the appellant was doubly punished for the one act.

1. I do not accept this submission.  I have set out in paragraphs [3]–[7] the circumstances of the offending.  Where the object of a trespass is to commit an offence of violence the aggravation that accompanies the trespass generally calls for a significant term of imprisonment.[1]  As Winneke P observed in DPP v Jovicic, offences of this type ‘strike directly at the heart of people’s domestic security and their capacity to feel safe in their own homes’.[2]  Counsel for the appellant is correct when he submits that there is significant overlap factually between the two charges.  However, I consider that this factual overlap between the charges is not total, nor does it approach that level.  The appellant in company entered as a trespasser into a commercial/residential building.  At the time he was armed and party to an agreement to commit a crime of violence.  The offence of aggravated burglary was then complete.  The armed robbery was the immediate sequel to this offending but is elementally and factually discrete from it and itself involved related but very serious criminal misconduct.

   [1]R v Martin & Ors [2009] VSCA 142, [20].

   [2]DPP v Jovicic (2001) 121 A Crim R 497, 507.

1. The discretion to order cumulation between charges is a very broad one and reasonable minds may well differ as to whether it should be ordered and in what amounts.[3]  Different judges will take different views as to whether and to what extent an order for cumulation ought be made.  These decisions are not made in isolation however and are part of a tailored sentence that reflects what an offender has done, unaffected by ‘the way in which boundaries for particular offences are drawn’.[4]  For my part I regard his Honour’s cumulation order as stern, but his base sentence as lenient.  This is no more than a differing intuitive view as to where the notional boundaries between offences are drawn.  What is critical is that an offender is not doubly punished for the one criminal act.  In this case I am not persuaded that the appellant has been doubly punished by the effect of the order for cumulation. 

   [3]R v Hogan [2008] VSCA 279, [29].

   [4]Pearce v The Queen (1998) 194 CLR 610, [40] (McHugh, Hayne and Callinan JJ).

1. I consider that the sentence is well within the sound discretionary range, that sufficient weight was given to the appellant’s youth and that the order for cumulation was open to his Honour.  It follows that I would dismiss the appeal. 

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