R v Fakaosilea

[2023] NSWDC 212

District Court

New South Wales

Medium Neutral Citation:

R v Fakaosilea [2023] NSWDC 212

Hearing dates:

25 May 2023; 01 June 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1  Appeal allowed.

2  I set aside the penalty imposed by the magistrate.

3  In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024.

4  The offender is disqualified for the minimum period of 12 months.

5  John Fakaosilea is convicted.

6 I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

7  I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022.

8 I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

Sequence 3 – 3 years and 4 months;

Sequence 4 – 4 years.

9  I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027.

10 The offender will be eligible to be released on parole on 16 December 2024.

Catchwords:

SENTENCING — Appeal against sentence — Severity

CRIME — Violent offences — Aggravated robbery — In company

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

Legge v The Queen [2007] NSWCCA 244

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
John Fakaosilea (Offender)

Representation:

Counsel:
S M Fernando (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2022/19281

Publication restriction:

None

Judgment

Introduction

1. John Fakaosilea (the offender) appears for sentence after pleading guilty in the Local Court to two counts of robbery in company contrary to s 97(1) Crimes Act 1900.

2. The maximum penalty for the offence is 20 years imprisonment.

3. The offender also appeals against the severity of a sentence imposed on him at the Mt Druitt Local Court on 4 May 2023. On that day he was sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of 10 months for offences of police pursuit and knowingly drive a stolen conveyance, with indicative terms of 14 months and 10 months respectively. The offender was also disqualified from holding a driver’s licence for the automatic period of 3 years.

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

6. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts Relevant to the Sentence

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. At around 10:00pm on 10 September 2021, 10 males, including the offender and a co-offender by the name of Federico Ramos, left Central Station for Belmore Park, where they congregated at a park bench.

9. At approximately 10:24pm, Abass Sammaka and his girlfriend were walking through Belmore Park on their way to Central Station. The group stared at the couple and some yelled some postcodes and “57 on top”.

10. The couple kept walking. When they were about to walk under the overpass across Eddy Avenue, one of the males approached them and told them to stop. Mr Sammaka turned around and asked him what he had said. The other males in the group came over, including the offender and a tall, skinny male in black clothing. This male asked the couple why they had stopped, to which Mr Sammaka replied that he wanted to see if anything was wrong. This male then pushed Mr Sammaka against the wall of the overpass and asked him a question about who he “repp[ed]”. He had a silver knife in his hand with a thick, 15cm blade. He kept repeating the question and Mr Sammaka repeatedly told him that he did not know what he was talking about and told him that he was just walking around the city with his partner. The male pressed the point of the knife into Mr Sammaka’s chest.

11. The other males, including the offender, had surrounded Mr Sammaka and began punching, pushing, and slapping him, whilst going through his pockets. The males robbed Mr Sammaka of the following items:

1. a black Samsung Galaxy mobile phone (valued at $600);

2. a set of house keys;

3. a Tommy Hilfiger bum-bag containing a Tommy Hilfiger wallet with $25 cash inside, a Commonwealth Bank card and a Medicare card in Mr Sammaka’s name;

4. his shoes (a pair of Nike 270s, valued at $220).

12. Mr Sammaka’s partner asked if she could have the keys from the Tommy Hilfiger bag and they returned the keys to her.

13. The tall, skinny male put the knife against Mr Sammaka’s chest again and asked, “Do you want to get stabbed?”. Mr Sammaka told him that he did not and that he did not know what had happened. The male put the knife against Mr Sammaka’s throat and applied pressure. Mr Sammaka put his hand up against the knife.

14. The male asked if Mr Sammaka was “pushing” him, to which the victim replied “no”.

15. The tall, skinny male told the rest of the males that it was time to go and they all started walking away. The couple started to walk toward the train station when one of the males approached them again and asked for Mr Sammaka’s phone password. Mr Sammaka gave them the password.

16. At 10:28pm, eight of the males, including Mr Ramos and the offender, ran back into the park. The offender was holding Mr Sammaka’s white shoes in his hand.

17. Mr Sammaka sustained a small cut on his left thumb and a small red mark on his chest where the knife was pressed against it.

18. At around 10:30pm, the group of eight males walked out of Belmore Park onto the corner of Hay Street and Castlereagh Street. By this time, the offender had put on Mr Sammaka’s shoes and given his own sneakers to Mr Ramos.

19. The group began walking north towards Town Hall. Another male and two females also joined the group.

20. At 10:55pm, the offender and eight others entered KFC on George Street. Mr Ramos and another male remained outside.

21. A short time later, Rorie Stoddart entered KFC and walked toward the group.

22. The group asked Mr Stoddart where he was from. He told them he was from Western Sydney. They asked whether he was from the Inner West. The offender did most of the talking. Another male from the group left KFC but stood at the door.

23. The offender said to Mr Stoddart, “Come outside or we will stab you”. Mr Stoddart backed away from the group of males. The offender asked if he had a knife and Mr Stoddart said that he did not, pulling the front of his pants down to prove it.

24. The group continued talking to Mr Stoddart until 11:01pm, when a male in a bright blue t-shirt punched him in the head. Mr Stoddart put his hands up in front of his face and backed away. The male followed, continuing to punch Mr Stoddart until he ended up against the wall near the bathrooms. The offender walked towards them and kicked Mr Stoddart. The offender and two other males continued to assault Mr Stoddart, punching and kicking him. The KFC security guard attempted to intervene but was unsuccessful.

25. During the altercation, a female in the group approached and kicked away a knife. She then picked it up. It is unclear where the knife came from.

26. The offender unclipped Mr Stoddart’s tan and black Gucci bum bag from his body and walked back towards the George Street entrance with it. Inside the bag was a portable charger, Apple Air Pods, $150 in cash and Mr Stoddart’s bank card.

27. Once the offender had walked away, the security guard managed to get the other two males to withdraw briefly, however they quickly began to punch and kick Mr Stoddart again. Meanwhile, Mr Ramos had entered the KFC through the George Street entrance. He approached the security guard, grabbed him from behind, and pulled him around the corner where the bathrooms were located.

28. As Mr Ramos was pulling the security guard around the corner, another two males broke up the altercation and the group dispersed. The female who had picked up the knife handed it to Mr Stoddart when he left KFC. Mr Stoddart accepted the knife. A short time later he threw the knife into a bin on George Street.

29. Mr Stoddart suffered a split lip, a cut to his right eyebrow and a black eye.

30. At 11:02pm, seven of the males from the group, including the offender and Mr Ramos, left KFC and walked along George Street towards the Light Rail station.

31. At 11:05pm, the offender approached Mr Stoddart and asked if he had his phone. Mr Stoddart told him that he did not.

32. Mr Stoddart called police, who attended and spoke to him.

33. The offender was identified by police from CCTV footage.

34. On 18 March 2022, police attended an address in Granville for unrelated matters. The offender’s partner, Pelenaise Sandys, told police that the offender was upstairs in an apartment. Police arrested the offender and conveyed him to Granville Police Station. He declined to participate in an interview.

Severity Appeal

35. The offender entered a plea of guilty to the offences. The plea was not entered at the first available opportunity and the matters had been listed for hearing. The magistrate allowed a very generous 20% discount on sentence for the pleas of guilty.

Facts

36. The offender has never held a driver’s licence.

37. On 5 January 2022, a Toyota Hilux (the Toyota) was stolen from an address in Kingswood.

38. At about 6pm on 6 January 2022, police were stopped at an address in Whalan when they observed the Toyota take a sharp left turn onto a neighbouring street and then swerve into the opposite lane of traffic.

39. Police followed the vehicle into the neighbouring street and observed the offender in the driver’s seat, co-offender Abdel Mahrousseh in the front passenger seat and co-offender Isaako Solia in the back seat.

40. Police activated their warning devices in an attempt to stop the Toyota. The offender turned the Toyota and drove at the police vehicle, narrowly missing it and mounting the sidewalk. The offender drove the Toyota along the sidewalk for approximately 50 metres, at 20-30km/h and then turned onto a neighbouring street. Police initiated a pursuit.

41. The vehicle turned onto a street into a lane of possible on-coming traffic, travelling at 60km/h. Police lost sight of the vehicle and the pursuit was terminated.

42. Police continued patrolling the area and located the Toyota, which had been abandoned by the offender and co-offenders. Police located Mr Solia at a bus stop approximately 240 metres from where the Toyota was parked. Mr Mahrousseh and the offender were found hiding in bushes near the bus stop. Mr Solia and Mr Mahrousseh were arrested by police.

43. The offender jumped over the fence and fled the scene.

44. Police conducted checks on the Toyota which revealed that it had been involved in another police pursuit earlier that day. In CCTV footage that captured the pursuit, the offender and co-offenders were identified inside the Toyota.

The Offender’s Case

45. The offender tendered the following documents:

1. psychological report of Julie Dombrowski dated 21 March 2023; and

2. psychological report of Nicole Skea dated 17 May 2023.

46. The offender was also called to give evidence and cross-examined. He gave an account of his background that was different to the history noted by the psychologists. It was difficult to assess how much weight I could put on the history recorded by the psychologists. Giving evidence was very difficult for the offender. His limited intellectual capacity was obvious. He appeared to be quite traumatised by the experience of giving evidence. His answers were slow, short and he had obvious difficulty understanding the questions asked of him. I do not believe that the offender tried to mislead the psychologists, he was such a difficult historian that he may have unwittingly accepted things put back to him that were not factually correct. I have not placed much weight on the history given to the psychologists where it conflicts with the evidence he gave in Court.

47. He was supported by his mother and brother in Court.

48. The following is a precis of the evidence relied on by the offender.

49. The offender is a 20 year old man of Tongan descent. He was born in New Zealand and travelled to Australia as a teenager, settling first in Tasmania and then in Mt Druitt. The offender does not have any documents to prove his date of birth or citizenship. This has caused difficulties in the past with getting a job and obtaining a driver’s licence.

50. He first used cannabis when he lived in Tasmania at about the age of 15. When he moved to Mt Druitt, he increased his use of cannabis and moved to using harder drugs, including MDMA, methylamphetamine, cocaine and prescription drugs. In the lead up to the offences he was experiencing paranoia and auditory hallucinations. The offender gave evidence that he has not used drugs in prison and that he is presently feeling healthier both physically and mentally. He has had some experience with rehabilitation programs when he was in juvenile detention. He has not been offered the opportunity to participate in any programs in his recent time in custody because his classification is too high. He understands this to be a combination of the fact that he is on remand and that he has incurred a number of misconduct charges.

51. This is his first time in adult custody. He has been housed at the Clarence Correctional Centre in Grafton and his family have not been able to visit him. He speaks to them on the phone about once every three weeks. None of his other family members have been to gaol.

52. He has been in trouble on a number of times whilst he has been in custody on remand. In those instances, for the most part, he has followed the actions of others and been punished for that.

53. He did not have much memory of the offences. He recalled one of them occurred at KFC. He accepted that the victims would have felt scared and nervous and that they should not have had to go through what they experienced. He put his offending down to drug use and to associating with people from Mt Druitt that he knew. He was upset that he was the only person in custody as a result of the offences and he expressed a willingness to cut ties with his former associates and to stay out of trouble when he was released. At the time of the offences, he was living with his family in the Fairfield area but continuing to associate with his old friends from Mt Druitt. He has one law abiding friend, who he used to work with and who he wants to maintain contact with.

54. He expressed a desire to live a normal life by finding work and working on himself. He understands that he has a problem with his immigration status that needs to be sorted out.

55. The offender described his relationship with his mother and siblings as loving and supportive. His mother worked multiple jobs to provide for the family, however there was at times limited access to food.

56. The offender disclosed to Ms Dombrowski that he experienced sexual abuse at age seven but was unable or unwilling to provide further details.

57. The offender reported being a shy child who struggled to form friendships. The offender completed Year 12 of high school at Chifley College. He reported “average” grades across most subjects, but his academic performance declined once he started associating with anti-social peers and using substances in his middle teenage years.

58. After finishing school, he worked for approximately five months in two construction jobs, working six days per week. His employment ended when he was arrested in March 2022.

59. The offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at age 13. He took medication for this condition for 12 months. He continues to experience difficulties with concentration and restlessness, but he manages this with behavioural strategies like regular exercise. The offender also reported experiencing difficulties with managing stress and worry since childhood. He also described flashbacks of traumatic events.

60. The offender also reported that he has experienced paranoia and auditory hallucinations since the age of 17. This has been particularly prevalent when he is using substances. He also described feelings of hypervigilance and difficulty sleeping more than four hours per night at the current time.

61. At age 19, the offender sustained a head injury after being physically assaulted by a group of people. He never underwent neurological investigation and continues to experience pain at the back of his head and frequent headaches.

62. On the evening of the offences, he had met with the group of males in central Sydney to get something to eat with them. He initially told Ms Dombrowski that he became involved in the offences for the purpose of retrieving his stolen phone, which he believed that either one of the victims could have stolen. He then later told Ms Dombrowski that he believed that a member of the group had had a pre-existing grievance with the victims and he “just joined in”.

63. The offender expressed remorse for his offending behaviour, recognising that he needs to remain abstinent from drugs.

64. Ms Dombrowski opined that the offender’s symptoms are consistent with a diagnosis of Post Traumatic Stress Disorder relating to his experiences as a child. I am not satisfied that the offender was exposed to domestic violence as a child. His evidence before me was that his father lived with the family and that he saw him daily, which was at odds with what he told Ms Dombrowski. Further, he did not provide the details of his allegation of sexual abuse to Ms Dombrowski or in his evidence. In the circumstances, I am not satisfied that there is a proper factual basis for the PTSD diagnosis.

65. Mr Dombrowski also opined that the offender’s substance use at the time of the offending very likely affected his decision-making and judgment, and also appear to have triggered or exacerbated symptoms of psychosis. I accept this diagnosis which is corroborated by Ms Skea.

66. Ms Skea performed assessments on the offender that demonstrated that he performed at the low end of normal limits in most areas of his intellectual functioning. However, she found no evidence of intellectual disability, brain injury or other cognitive impairment. Ms Skea also opined that, based on the assessments conducted, the offender’s symptoms are inconsistent with ADHD, and that any symptoms consistent with this diagnosis are better explained by his substance abuse, symptoms of trauma and mood instability. Therefore, the primary treatment needs are rehabilitation from substance use and treatment to achieve stability of his mood.

Consideration

Objective seriousness

67. The offences are objectively serious.

68. The offences involved minimal planning and were committed by the offender as a result of him “following the crowd”.

69. The robbery of Mr Sammaka involved the offender being part of a group about 10 males who approached and intimidated the victim and his girlfriend. The offence occurred late at night in a park in circumstances where the victim was vulnerable and substantially outnumbered. A knife was used by a co-offender to threaten the victim and it was pressed against him on more than one occasion. Personal property was taken from the person of the victim in a very invasive way, including his shoes. The value of the property taken was about $250. The victim sustained minor injuries in the attack. The victim and his girlfriend would have been terrified by the offending conduct. The offender took possession of the victim’s shoes that were taken from him and put them on. The offender was one of the group who assaulted Mr Sammaka.

70. The robbery of Mr Stoddart involved the offender being part of a group of about 10 others who approached the victim in a fast-food outlet. The offender spoke to the victim in a threatening manner. The victim was punched repeatedly by a co-offender before the offender kicked him. The offender and another two males continued to kick and punch the victim. The offender took the victim’s bum bag from his person containing his personal property valued at about $150. The attack on the victim and a security guard continued after the offender retreated. A knife was located in the vicinity of the altercation, but there is no evidence that it was used in the robbery. Following the initial altercation, the offender reapproached the victim to ask him if he had the offender’s mobile phone. Mr Stoddart sustained injuries and would have been terrified by the attack.

71. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the s 97(1) offence is more serious than the offences considered in Henry, but also the guideline judgment related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]–[59].

72. I am not satisfied that the offender had a deprived upbringing, because of the inconsistencies between the history he gave to the psychologists and his evidence. The offender has long standing substance use disorder that impacted his judgment and his capacity for consequential thinking. His addictions arose at an age when he was unable to make an informed choice. His moral culpability for the offences is reduced to some extent.

73. I have taken into account the maximum penalty for the offences.

Deterrence

74. General deterrence is significant when dealing with serious personal violence offences, such as robbery in company. The penalty imposed must signal to others intending to commit similar offences that they will be met with significant punishment.

75. There is also a need for specific deterrence. The offender has an extensive criminal record as a juvenile. His record as an adult is less significant, but he has been resentenced on at least one occasion for most of these matters. The offender must understand by reference to the penalty imposed on him for these offences that if he continues to commit offences that he will receive more significant sentences of imprisonment.

Aggravating factors

76. The offence against Mr Sammaka involved the actual use of a knife: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999.

77. The offender was on conditional liberty at the time of committing the offences: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The offender was on a CCO for 18 months imposed on 22 December 2020. He was called up for this breach and resentenced to a term of imprisonment. He was also on conditional bail for offences committed on 29 November 2021.

Mitigating factors

78. The offender has some prospects of rehabilitation, but I am not satisfied that he has established the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. He has expressed a desire to change his ways and to avoid going back to gaol. It may be that he has reached a point in his life where he is gaining important insight. However, he continues to follow the crowd and to incur misconduct charges in custody. He may well have reduced his opportunities to participate in rehabilitative programs by doing so.

79. The offender has expressed remorse to the psychologist and to the Court: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. I am satisfied that he has accepted responsibility for his actions and that he is genuinely remorseful. His pleas of guilty also indicate remorse.

80. I have had regard to parity. Two of the co-offenders were dealt with for very different charges and they had much less significant criminal histories.

81. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions will make the offenders’ time in custody more onerous and that they may be imposed for some time into the future.

82. The offender has been in custody since 18 March 2022. He was sentenced to 2 years imprisonment with a non-parole period of 1 year to date from 17 March 2022. The non-parole period expired on 16 March 2023. He was then sentenced to 18 months imprisonment with a non-parole period of 10 months to date from 16 March 2023 for the driving offences that are the subject of the severity appeal.

Resolution of the Severity Appeal

83. The objective seriousness of the police pursuit offence was in the low range. The vehicle was driven on the wrong side of the road for a short period on two occasions and in close proximity to the police vehicle. The speeds at which the vehicle was driven were relatively low. The vehicle was driven on a pedestrian pathway for about 50m. The offender has never held a driver’s licence, partially as a result of his lack of documentation. The time over which the offence took place was relatively brief. The maximum penalty for the offence in the Local Court was 2 years imprisonment.

84. The objective seriousness of the knowingly drive a stolen conveyance offence was also relatively low. The offender accepted by his plea that he knew the vehicle was stolen. It was driven over a period of about three to four hours on the same day. The maximum penalty for the offence in the Local Court was two years imprisonment. The offender had a significant criminal history for being carried in stolen conveyances.

85. Taking into account all of the circumstances, I think that the penalty imposed for these offences should be reduced to an aggregate term of 12 months imprisonment, with a non-parole period of 6 months to date from 16 January 2023. The sentences I would have imposed, had separate sentences been imposed, after taking into account the discount for the plea of guilty are 8 months for each offence.

86. I will also reduce the period of disqualification imposed to the minimum period of 12 months because having a driver’s licence may assist the offender to find work when he is released from custody.

87. The orders I make in relation to the sentence appeal are:

1. Appeal allowed.

2. I set aside the penalty imposed by the magistrate.

3. In lieu thereof, I impose an aggregate term of imprisonment of 12 months with a non-parole period of 6 months to date from 16 January 2023. The non-parole period will expire on 15 July 2023 and the head sentence will expire on 15 January 2024.

4. The offender is disqualified for the minimum period of 12 months.

Penalty on the sentence matters

88. John Fakaosilea is convicted.

89. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

90. I make a finding of special circumstances. The offender is still relatively young and has long standing substance use disorder. He will benefit from a longer period of supervision on parole to assist him with drug rehabilitation, to find work and to reintegrate into the community. I have also taken into account that he has been in custody continuously since 17 March 2022.

91. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are:

• Sequence 3 – 3 years and 4 months;

• Sequence 4 – 4 years.

92. I impose an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 1 year and 9 months to date from 17 March 2023. The non-parole period will expire on 16 December 2024 and the head sentence will expire on 16 September 2027.

93. The offender will be eligible to be released on parole on 16 December 2024.

94. This is an effective term of imprisonment of 5 years and 6 months with a non-parole period of 2 years and 9 months, when accumulated on the earlier sentence of imprisonment.

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Decision last updated: 21 June 2023