R v Fiaalii
[2016] VCC 958
•7 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01209
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SELEMAEA FIAALII |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2016 | |
DATE OF SENTENCE: | 7 June 2016 | |
CASE MAY BE CITED AS: | R v Fiaalii | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 958 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – attempted armed robbery – young offender
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Boulton v R [2014] VSCA 342, DPP v Tokava [2006] VSCA 156, R v Dixon [1975] ACTR 13, R v Merrett [2007] VSCA 1
Sentence: Convicted and ordered to serve a Community Corrections Order for 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Solicitor for the Office of Public Prosecutions |
| For the Prisoner | Mr D. Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
1 Mr Fiaalii is a factory worker who is 20 years of age. He was aged 19 at the time of this offence and was born on 30 June 1995. He stood trial but the matter was finally settled, insofar as armed robbery is concerned, and the plea came before me of an attempted armed robbery. I think perhaps the correct way is that he was charged. I do not think he actually stood trial, did he? But initially - was it listed as a trial? It was.
2 MR TRIANDOS: It was listed.
3 The matter was resolved and he ultimately pleaded before me to an attempted armed robbery, which is an offence against ss.75A(1) and 321M of the Crimes Act 1958. The penalty of 20 years, pursuant to s321P indicates the seriousness of this offence.
4 The plea came before me on 27 May 2016 and on that day Exhibit A was tendered, which was the prosecutor's summary of the circumstances of this offence. Mr Cronin accepted the facts as set out in that exhibit were the facts upon which I am to sentence Mr Fiaalii. In particular, I refer to Exhibit B, which was also tendered, which was the CCTV footage. Albeit it was only one minute, this short footage illustrates dramatically the circumstances of this attempted armed robbery upon the IGA and upon the employee, who was unfortunate enough to be threatened with a knife by Mr Fiaalii's co‑accused.
5 As I said, the video is both stark and confronting. The co-accused, Mr Filipo, was a huge man with dark glasses, his head partially covered, and he produced a knife. Consistent with, I think, your involvement in this matter you were simply there on the video, but not disguised in any way.
6 Exhibit C is the victim impact statement tendered, and read out to this Court. It seems to me that there was nothing inappropriate in the victim’s comments. Given the circumstances of this crime it is no wonder that she was upset. It may well be that as a result of this crime she has been excessively upset. However, essentially, persons who commit these crimes must accept that they must take their victims as they find them, and irrespective of whether perhaps they have a greater tendency to nervous upset as a result of such experiences, that is exactly what happened in this case.
7 The matters that were put to me, in particular the sentencing remarks of Judge Wilmoth who sentenced Mr Filipo on 27 August 2015, clearly demonstrate that he was the older person, the main motivator played the major role and produced the knife. He was, as indicates the seriousness of his crime, sentenced to a period of imprisonment of three years and three months. He had a number of priors. He had a long history of criminality. He had been both in youth detention and in prison prior to this offending, and indeed, had only just come out of prison from serving an 18-month sentence.
8 Her Honour in her remarks stressed the difference in roles between Mr Filipo and the prisoner, however, as Her Honour said, the objective circumstances of the crime cannot be minimised. Albeit she was talking about an armed robbery, such comment also applies to Mr Fiaalii's crime.
9 This crime is a very serious crime, and there is a strong need in sentences for such for the principle of general deterrence to be prominent. Your particular plea relates to a charge of attempted armed robbery, and it relates to the money only. As part of that plea I have been advised that the Crown accept that you did not know your co-accused had a knife. However, your criminality emanates from your observation, finally, as we would have seen on the video, when he did have a knife, and that very short period of observation leads to the ultimate plea that you have made.
10 I think in the circumstances it must be seen, as your counsel said, even as an attempted armed robbery, a very valuable plea, in these circumstances. By that I mean had the matter proceeded to trial it would have been a considerable concentration in the trial on this very aspect.
11 As the explanation for both the armed robbery committed by your co-accused and your attempted armed robbery, I must say it must be the most inept attempt at armed robbery that I have ever had before me. It is a crime that was committed almost without any planning. It, perhaps, indicates how guileless you were at the time, if not still are. I am not quite sure, and I do not know whether you were quite sure, what you are actually doing there. All I know is you acting in this way put your own life, future, the future of your partner and your baby, in very, very grave jeopardy.
12 Mr Cronin, in his submission on your behalf, stressed the issue of your youth and the fact that you were still, at your current age, to be sentenced as a young offender as so defined under the Sentencing Act 1991. He submitted that you were a person of immaturity and inexperience who had been overwhelmed by the co‑accused. I used the word "stupidity", which Mr Cronin did not resile from. It is unbelievable to me that a person, well no priors, can be involved in such a serious crime. Mr Cronin also stressed the Crown's acceptance that you were only aware of the knife for a very few seconds.
13 The prosecution sought an order under s.464ZF of the Crimes Act 1958, which I will sign today, and put to the Court that taking into account of all the matters that a community correction order was in range. Mr Cronin tendered his written submissions, Exhibit 1, and essentially was up-front in suggesting to the Court that a community correction order was the order that he sought. I equally was up-front with him, and indicated to him that given the objective criminality of this serious offence it would be unlikely that I would be prepared to grant a community correction order. That is, that this offence, because of its seriousness and the need for general deterrence is a matter that requires either detention in a youth detention centre or incarceration in a prison.
14 Mr Cronin stressed that this plea had been made at the earliest time possible. He stressed that there was genuine remorse; that it was a valuable plea, as I have already remarked; and that it was utilitarian. He referred to the personal background of Mr Fiaalii. He relied on the character references tendered and the family support, which is again evident today.
15 Mr Fiaalii is a person who has been quite prepared to work hard, and Exhibit 3 was tendered, which confirmed that. And of course not only is he a young offender but what was stressed, and as I have just remarked, is a person who comes before this Court on this serious offence, but with no prior offences. He, it was put, genuinely expressed remorse, almost immediately to the police when he was interviewed.
16 Insofar as his character, I note the reference of his partner, her strong views as to the genuineness of his remorse, and the general character references and, indeed, the comments made by his partner as to his care and acceptance of the trauma that he put the victim through. It also was submitted by Mr Cronin that all of that material goes to the Court understanding that Mr Fiaalii is a person who, if given the opportunity, could effect appropriate rehabilitation. Mr Cronin also stressed, as I have said, that he is, under the Sentencing Act 1991, a defined young offender.
17 As I indicated to Mr Cronin, I had grave concerns about this sentence. The community expect that people who behave, such as you did on this day, receive condign punishment for such serious offending. However, given the circumstances, I said that I was prepared to seek reports, firstly, in regard to a youth training centre, to see his suitability to be sentenced to detention in a youth training centre; and, as to the alternative proposition, your suitability for a community correction order.
18 Those reports have been received and, as I said, the community correction assessment report has been prepared by Ms Ellie Menzani and is dated 27 May 2016 and I thank her for that. That is Exhibit D. Exhibit E is the Youth Justice Centre Order Assessment Report of Mr Gene Bell, for whom I thank and thank him for being here. I must say that there were matters in that report that did reflect the plea put by Mr Cronin, in particular, the comments which I take into account - Mr Bell being a senior Court advice officer with much experience and who is known to the Court - it seemed to me expressing some concern as to the placement of Mr Fiaalii, even in a youth justice centre, at this age.
19 As I have said, this is a very exquisite position. It has been necessary for me to take into account, in particular, the provisions of the Sentencing Act 1991 insofar as the appropriate considerations to take, and I take into account s.5(4C) which provides that if it is possible to pass a community correction order in preference to a period of imprisonment, well, one must consider that matter, and I take into account the principles set out by the Court of Appeal in Boulton v R [2014] VSCA 342.
20 I also take into account the matters which relate to the issue of rehabilitation relied upon by Mr Cronin, in particular, in DPP v Tokava [2006] VSCA 156, and the statements made by the President in that case where he referred to the comments of Fox J in R v Dixon [1975] ACTR 13 who said as follows:
"When, therefore, a Court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in ... he will re-enter society ... quite young. His new‑found propensities then have to be reckoned with."
21 Further, at paragraph 24, the President said:
"It would be unreal and artificial for sentencing Courts to ignore the evidence about the anti-social effects of time spent in gaol."
22 The other case also on this issue of rehabilitation and sentencing of young people, is R v Merrett [2007] VSCA 1. Again, it was a Court of Appeal matter, and I refer to paragraph 49 where again, Maxwell P said this:
"The sentencing Court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing Court does."
23 I think those quotes illustrate the exquisite nature of the sentencing process here. As I say, there is no excusing or backing back from the seriousness of this criminality. For a person in the victim’s case to be confronted, as she was, firstly, by the armed robber and, secondly, by you who have now pleaded guilty to an attempted armed robbery, is behaviour that the community expects to be dealt with very seriously; and indeed, that is why the prison sentence was imposed on your co-accused.
24 However, there are considerable differences between you and your co‑accused, as has been referred to. It has been in your favour, the very professional manner in which the prosecution have approached this case and made the concession that it has.
25 Equally, as I said, I refer not only to the matters put on your behalf but the comments made by Mr Bell as to your immaturity. I also take into account the family references and support that you have. Essentially, they are pleas to me that they are certain that you are the type of person if given an opportunity will not be back here again. They have asked me, in their references to you, to view this serious crime that you have committed as a grave first mistake committed in your life, but by a young man.
26 I should tell you, Mr Fiaalii, that it has not been without some considerable hesitation but I have decided to accede to the submission from your counsel. I would like you, and would want you never to forget how close you have come to an immediate sentence, because there will not be another chance. You come back in front of me over the next four years for any breach of this community correction order that I am about to give you and you know what will happen to you. All right? There will not be any second chance. You will go straight to gaol. All right.
27 Mr Cronin, I am prepared, in light of all the matters that I have indicated, to grant your client a community correction order for a period of four years. There will be an intensive compliance period of two years over which he is to perform 200 hours community service. I intend to impose conditions that will involve supervision for him by the Department. It will involve him undertaking drug and alcohol courses. It was never put but I think that drugs must be involved in this matter. It was said it was not, but I cannot accept that a person can be involved in such serious criminality without any reason. And also a criminal behaviour course. I am not too certain what they call them but anyway, offending behaviour, I think, is it not? I will impose that as well.
28 In addition, I intend to impose a fine upon your client in the sum of $2,500. I am quite prepared to give him a significant stay in that matter and I will make it 12 months, given his economic situation, but you will explain to him that it would not be seen by this Court as appropriate for him to roll up in 12 months and seek time to pay, if he has not paid anything.
29 HIS HONOUR: Do you want to explain to him that - I think - has he signed the document? He understands community correction order but it might not hurt for you to just explain those things to him.
30 MR CRONIN: Yes, Your Honour. I have explained them before the submission was made to Your Honour. I've explained it to him, so ‑ ‑ ‑
31 HIS HONOUR: Yes, all right. So you are happy that he fully understands?
32 MR CRONIN: I'm happy that he does, and once he's signed the order I will certainly speak to him outside Court to reiterate it to him.
33 HIS HONOUR: All right. Well, we will prepare the document, have your client sign it then. Yes. Are there any other matters, Mr Prosecutor, I need to attend to? I will sign the 464ZF.
34 MR TRIANDOS: Thank you, Your Honour. Your Honour, because of the size of the fine there has to be a s.6AAA indication.
35 HIS HONOUR: Is that so, for the fine?
36 MR TRIANDOS: Yes, if it's a fine exceeding ten penalty units, Your Honour, and a penalty unit is $150.
37 HIS HONOUR: Well, to the extent that I can conform with that sometimes ridiculous requirement of parliament ‑ ‑ ‑
38 MR TRIANDOS: Yes, Your Honour.
39 HIS HONOUR: ‑ ‑ ‑ I will indicate that had I not given him a CCO and a fine I would have given him immediate imprisonment, but I am not - I can't go much further than that.
40 MR TRIANDOS: If Your Honour pleases.
41 HIS HONOUR: Thank you for that, Mr Prosecutor, I didn't think it applied in those circumstances.
42 MR CRONIN: Your Honour, can I approach while your associate goes back there?
43 HIS HONOUR: Yes. Madam Associate do you want - oh, you've got - yes, Mr Fiaalii, stand up. You understand by signing this what this means?
44 PRISONER: Yep.
45 HIS HONOUR: This requires you to comply totally. So if someone tells you to do something, someone tells you to be at a particular place at a particular time, you've got to be there. And the Government has decided that if you do not, they can breach you. All right? So any breach. It wouldn't be good for you to come back in front of me with a breach, because you know the consequences. All right? So for the next four years let's - you show your family and this Court that you're not the type of person that normally commits these offences. You understand that?
46 PRISONER: Yes, Your Honour.
47 HIS HONOUR: All right. And don't let your family down. All right. I've signed those, yes. Counsel, do I - any other matters I have to attend to?
48 MR TRIANDOS: No, Your Honour.
49 HIS HONOUR: I thank you both for your assistance.
50 MR TRIANDOS: As Your Honour pleases.
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