R v Matangi

[2022] NSWDC 228

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Matangi [2022] NSWDC 228

Hearing dates:

17 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 The offender is convicted.

2 I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 5 September 2021. The non-parole period will expire on 4 March 2023 and the head sentence will expire on 4 September 2024. The offender will be eligible to be released on parole on 5 March 2023.

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Legge v The Queen [2007] NSWCCA 244

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Director of Public Prosecutions
Fonua Matangi (Offender)

Representation:

Counsel:
D Mulligan (Offender)

Solicitors:
ODPP
Criminal Defence Lawyers

File Number(s):

2021/188681
2021/117220

Publication restriction:

None

Judgment

1. Fonua Matangi (the offender) appears for sentence after pleading guilty in the Local Court to the following charges:

1. on 22 November 2020 – robbery with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment; and

2. on 19 April 2021 – robbery with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment.

2. The offender also asks the Court to take into account on a Form 1 when dealing with the offence of 22 November 2020, assault with intent to rob, and when dealing with the offence of 19 April 2021, common assault.

Approach to sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.

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

5. 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).

Agreed facts

6. The parties tendered agreed statements of facts for both charges which may be summarised as follows.

H 1092817090

Sequence 3 – Form 1

7. At about 9.24pm on 21 November 2020, the offender attended the bottle shop attached to the Crown on McCredie Hotel located on Fairfield Road in Guildford West. The offender was wearing a dark blue Everlast brand hooded jumper, dark blue shorts and dark blue Nike shoes with a white trim. He was carrying a dark grey Ryde-Eastwood Hawks backpack containing a metal claw hammer.

8. The offender approached the checkout desk from the western side of the premises and said to the attendant at the desk, Ramot Iteka, “Give me the money and cigarettes.” The offender took a step towards the checkout desk and said, “Do as I say, and no one will get hurt.” The offender placed the backpack on the checkout desk and removed the claw hammer. The offender made a throwing motion with the claw hammer which caused Mr Iteka to become fearful for his safety.

9. Mr Iteka moved away from the cash register and responded, “Come around and do what you want to do.” The offender walked around the checkout desk towards the cash register and continued to make throwing motions with the claw hammer. At this time, the offender was confronted by other customers present. The offender picked up the backpack and fled the premises on foot. He abandoned the backpack on the lawn area of a car park near Fairfield Road.

10. Police attended the scene a short time later and Mr Iteka provided a statement. The entire incident was captured on CCTV.

Sequence 2 – Sentence

11. At about 11.24am on 22 November 2020, the offender re-attended the bottle shop. He was wearing a beige coloured jacket on top of a dark blue hooded jumper, dark blue shorts and dark blue Nike shoes with a white trim similar to those worn the day before. The offender was armed with a 30-centimetre kitchen knife. He approached the checkout desk from the western side of the premises and said to Mr Iteka, “Open it, open it right now” while gesturing towards the cash register with the knife. Upon seeing the knife, Mr Iteka moved away from the checkout desk and stood about ten metres away from the offender where he called for help.

12. The offender pulled out the drawer under the front counter and removed a number of packets of cigarettes. He made numerous attempts to access the till until the Manager of the Hotel contacted Mr Iteka through a two-way radio. The offender grabbed the two-way radio and pushed the computer screen which was located on top of the front counter. The offender ran back towards the western side of the premises before exiting towards Fairfield Road. The two-way radio was later found down a drain.

13. Police attended the scene a short time later. The entire incident was captured on CCTV which clearly showed the offender’s face.

14. At about 8am on 8 December 2020, police attended the Crown on McCredie Hotel and conducted a search of the rear car park. During this time, police spoke to a witness, Chang Park, who informed them that he had found a dark grey coloured, Ryde-Eastwood Hawks backpack containing a claw hammer. Police seized the backpack for forensic analysis.

15. On 27 April 2021, the offender was arrested by Bankstown Criminal Investigation Unit at the offender’s home on Waruda Street in Yagoona for an unrelated matter. During this arrest, police seized a pair of dark blue Nike shoes with a white trim similar to the shoes the offender had worn during the armed robberies.

16. On 3 May 2021, police obtained a DNA result which linked the claw hammer to the offender.

17. On 8 May 2021, police executed a search warrant at the offender’s home to obtain clothing worn by the offender during the armed robberies. Police seized certain items of clothing and two pairs of Nike shoes.

18. The offender refused to participate in an electronically recorded interview in relation to these offences.

H 79398024

19. At about 4.50pm on 19 April 2021, the offender left his home and walked to the Beer Wine and Spirits (BWS) bottle shop on the Hume Highway in Yagoona. He was carrying a knife that he had obtained from his kitchen. At about 5.04pm, the offender walked through the western entrance of BWS and into the cool room where he picked up a case of Somersby pear cider. He then took the case of cider and placed it on the front counter.

Sequence 1 – Sentence

20. The offender then walked back into the cool room and immediately came back out wielding the knife in his left hand. He pointed the knife towards a BWS employee, Cheryllee Kenton, who was positioned behind the cash register. Whilst he was wielding the knife, the offender was about a metre away from Ms Kenton. The offender then pointed the knife towards the cash register and demanded “open the cash register” repeatedly until Ms Kenton did so.

Sequence 2 – Form 1

21. Around the same time, Van De Ho, a customer, walked out of the cool room carrying a box of alcoholic beverages. Whilst still wielding the knife in his left hand, the offender used his right hand to push Mr Ho’s right shoulder in the direction of the driveway and told him to stand in front of the counter.

22. The offender returned to the open cash register and began to grab cash from the till. He took approximately $510. The offender then fled the premises on foot. While running, he abandoned the knife in an undisclosed road.

23. Police attended the scene shortly after and spoke with witnesses. The entire incident was captured on CCTV which clearly showed the offender’s face. A forensic analysis of the case of Somersby cider revealed a fingerprint which matched the offender’s.

24. At about 1.10pm on 27 April 2021, police arrested the offender at his home. The offender participated in an electronically recorded interview and made full admissions. He remained cooperative with police, explaining in detail his actions and the reasons behind them, including being without an income and having recently had a son.

The offender’s subjective circumstances, remorse and prospects of rehabilitation

Psychiatrist report of Dr Richard Furst

25. The offender tendered a report of Dr Richard Furst, psychiatrist, dated 8 June 2022. Dr Furst met with the offender via audio-visual link on two occasions for the purpose of preparing the report. The content and findings of Dr Furst’s report can be summarised as follows.

Background and psychiatric history

26. The offender was born in Auckland in 2001. His father was born in Tonga and his mother was of mixed Tongan/Māori heritage. His family migrated to Australia and lived in Brisbane between 2005 and 2019.

27. The offender completed primary school and high school in Brisbane. There were no indications of specific learning difficulties or attention deficit hyperactivity disorder. He played rugby league at school, including competitive football. He completed Year 12.

28. The offender’s father worked in the construction industry and his mother stayed at home. The offender worked in the construction industry himself for a period in 2019 after his family moved to Sydney. His family lived in Guildford then Yagoona.

29. The offender has been in a relationship for the last three years. He has a one-year-old son with his partner and they are expecting a daughter in September. The offender was unemployed at the time of the offences.

30. The offender had a history of apparent psychotic symptoms. He reported that he “heard voices” after he ceased working with his father, which was in the latter months of 2019. He also experienced feelings of paranoia around that time, believing that people were talking about him and that songs and other content on the radio were about him.

31. The offender’s mother also reported that she saw changes in the offender’s behaviour around this time. She stated that he was staying up all night and sleeping during the day. She also stated that he was paranoid and believed that their neighbours were “laughing at him”.

32. The offender was admitted to Cumberland Hospital for approximately two months from December 2019 to January 2020, or thereabouts, for treatment of his psychotic illness. Dr Furst stated that the nature of his symptoms and the length of that admission suggested that the most likely diagnosis was schizophrenia.

33. The offender had follow-up treatment through Headspace Parramatta with Dr Hecham Al-Hajali, psychiatrist and case manager. His antipsychotic medication was changed due to adverse side effects.

34. The offender also saw a psychiatrist from the Bankstown Community Mental Health Team (BCMHT) and was prescribed antipsychotic medication, being a depot antipsychotic medication each month via injection and 400 milligrams of Solian (Amisulpride) orally twice daily.

35. The offender told Dr Furst that he still experienced paranoia from time to time but was no longer having auditory hallucinations or hearing voices.

Drug and alcohol history

36. The offender did not drink or use drugs throughout his high school years until he started smoking cannabis sporadically at the age of 17. The offender drank and used cannabis more regularly after leaving high school and was smoking cannabis intermittently up until his arrest. The offender had a history of binge drinking.

Offence-related issues

37. In relation to the November 2020 offences at the Crown on McCredie Hotel bottle shop, the offender told Dr Furst: “I didn’t have much to do. No longer working with dad…just angry…sometimes just frustrated…anger takes control of me.”

38. In relation to the April 2021 offences at the BWS bottle shop, the offender told Dr Furst: “I was bored. Nothing to do. Not working.” He also stated that he regretted his offending and “should’ve thought about it and not done it.”

39. In relation to both sets of offences, he told Dr Furst: “It was childish. Silly. I shouldn’t be doing that. No point. I should have got a normal job.”

Recent progress

40. The offender was remanded in custody between April and November 2021 and was subject to bail restrictions/supervision in the latter months of 2021 and in the first 2 to 3 months of 2022. His case management was to be transferred from the BCMHT to the Liverpool Early Psychosis Intervention Program (LEPIP).

41. The offender was involved in a domestic incident in March 2022 which amounted to a breach of his bail conditions and he was taken back into custody on 15 March 2022. The offender was subsequently charged in relation to an incident in custody involving two correctional officers, which led to him being placed in segregation.

Mental state examinations

42. Dr Furst reported that the offender presented as logical throughout both assessments and did not appear to be significantly depressed or to be psychotic or suicidal. His intelligence was not formally assessed, but Dr Furst believed that he likely fell in the below average range. The offender expressed anxiety about his upcoming sentencing proceedings and his segregation in incarceration and denied any recent symptoms of psychosis.

Opinion regarding specific questions

43. Dr Furst stated that the offender was not very bright and had developed a schizophrenic illness with the onset of psychotic symptoms and functional decline in 2019 that had continued in active and then residual form over the last 2 to 3 years. He appeared to have developed a maladaptive pattern of drinking and cannabis abuse over the last few years, with his drinking and desire to obtain alcohol, cigarettes and money being causally related to his offending. Whilst Dr Furst acknowledged that drinking and a desire for alcohol does not, of itself, necessarily reduce the seriousness or moral culpability of the offending, he stated that it was “an inescapable conclusion” that the offender’s schizophrenic illness and related functional impairment were driving forces behind his drinking, maladaptive behaviour, and impaired judgment at the time of the robbery offences, including an apparent disregard for the consequences of his actions.

44. Dr Furst believed that the offender met the DSM-5 criteria for schizophrenia and substance use disorder. He opined that current medical evidence suggested that schizophrenia was more likely to be the result of a genetic vulnerability rather than cannabis being causal of schizophrenia and related psychotic symptoms.

45. As to the offender’s risk of reoffending, Dr Furst stated that the offender was likely to remain functionally impaired by his schizophrenic illness. However, he believed that the assertive psychiatric follow-up and case management outlined in the proposed treatment plan would likely improve his mental health, decrease his risk of reoffending, and facilitate adequate rehabilitation. Dr Furst also acknowledged that the offender’s drug and alcohol issues also needed to be managed, most likely through engagement in drug and alcohol counselling/rehabilitation.

46. Dr Furst was of the opinion that the available history suggested that the offender was likely to engage in the proposed treatment plan, including by taking antipsychotic medication and seeing his local community mental health team, which he had been doing over the last two years.

47. Dr Furst also opined that the offender’s mental condition would make any period in custody more burdensome for him. In particular, he stated that people with schizophrenia are prone to paranoid interpretations of the actions or words of other inmates due to hallucinations and/or delusions, and that mood disturbance associated with schizophrenia can also make persons more irritable and confrontational. Additionally, the presence of a schizophrenic illness and lower than average intellectual capacity also made the offender more vulnerable to being ‘stood over’, humiliated or abused in other ways, meaning the custodial environment would be more challenging and onerous. Dr Furst also opined that the offender would probably be at greater risk of having further relapses of psychosis in the future due to difficulties in accessing timely assessment and treatment in custody, lack of direct support from his family and case manager, and the increased stress of incarceration.

Medical documentation relating to the offender’s mother

48. The offender also tendered medical documentation relating to his mother, Mele Matangi, including a discharge referral from Liverpool Health Service dated 12 May 2022, a letter from Associate Professor Trevor Tejada-Burges dated 15 July 2021, and a letter from Dr Edward Tang dated 10 June 2022.

49. The medical documentation confirmed that Ms Matangi had recently been diagnosed with metastatic endometrial cancer and that her treatment was palliative. She was experiencing significant pain and had limited mobility which meant that she required assistance.

Letter of support from the offender’s parents

50. The offender also tendered a letter of support from his parents. The letter confirmed the close and loving relationship between the offender and his family. It also supported the evidence that the offending was related to the decline in the offender’s mental state in the latter months of 2019 and expressed Ms Matangi’s wish that her son be by her side during her time in palliative care.

Objective seriousness, deterrence and aggravating and mitigating factors

Objective seriousness

51. The November 2020 and April 2021 offences shared a number of common features. Firstly, the items taken on both occasions were of limited value, being a number of packets of cigarettes on the first occasion and approximately $510 in cash on the second occasion. Secondly, the offending appears to have been short-lived rather than a protracted course of conduct. Thirdly, the offender’s threatened use of violence was largely by way of his conduct rather than explicit threats of violence and the words spoken took the form of demands directed towards opening the cash register. I note, however, that in the offence of 19 April 2020, the offender pointed the knife at the victim momentarily before motioning towards the cash register. Fourthly, both offences were unsophisticated with limited planning save for the offender arming himself before attending the premises. Fifthly, the offender made no attempt to conceal his identity which was captured on CCTV. Sixthly, the victims in both offences were in a vulnerable position as employees of licensed premises.

52. The Form 1 offence attached to the 22 November 2020 offence shared many of the features outlined above. The Form 1 offence attached to the 19 April 2021 offence involved common assault in the form of a single push of moderate force to the right shoulder of Mr Ho whilst holding a knife.

53. 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 but it should be noted that the Henry guideline 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].

54. As a result of the offender’s mental illness, his moral culpability for the offences is reduced to some extent. The offences are at the low end of the range of objective seriousness.

55. I have had regard to the maximum penalty for the offences.

Deterrence

56. General deterrence is of significance in sentencing offenders for armed robbery offences. Persons considering committing these types of offences should be aware by reference to the penalties given for them that they will be met with significant punishment if they choose to commit them.

56. General deterrence can be afforded less weight where the offender suffers from a mental condition and/or is immature. The offender’s schizophrenia is a serious condition that has had significant impacts on him, including affecting his capacity to reason through consequences. Whilst there is no significant causal nexus between his schizophrenia and these offences, his moral culpability is reduced to some extent. In addition, the offender was 19 and 20 at the time of the offences but very immature and is of limited intellect. This is an appropriate case to give less weight to general deterrence, denunciation and retribution and to impose a sentence that will foster the offender’s rehabilitation.

57. Specific deterrence is also of some relevance because the offender has limited insight into his offending conduct.

Aggravating factors

59. There are no relevant aggravating factors.

Mitigating factors

60. The offender has no prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

61. The offender was a person of good character: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

62. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. To realise these prospects of rehabilitation, the offender would need to engage in assertive and long-term psychiatric treatment, including taking antipsychotic medication and engaging with his local community mental health team. In this regard, the available history as documented by Dr Furst suggests that the offender is likely to comply with a proposed treatment plan. I am also satisfied that the antipsychotic medication which the offender currently takes will be of greater effect now, being more than 12 months since the second set of offences. The offender’s prospects of rehabilitation are reinforced by his strong family ties and the powerful motivating factor of the offender expecting his second child in September. The offender is still young and I am confident that he can rehabilitate himself.

63. The offender has expressed a degree of remorse in relation to his offending conduct by telling Dr Furst that he regretted his actions and that they resulted from a combination of boredom due to unemployment as well as general anger and frustration. He told Dr Furst that he should not have committed the offences and that his actions were “childish” and “silly”. I am not satisfied that the offender has established the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, but the remorse that he has expressed can still be taken into account.

64. I have taken into account that the offender’s mother is terminally ill and will probably die while he is in custody.

Other matters

65. I have taken into account the impacts that the pandemic has had on prisoners in custody, including the offender.

Penalty

66. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

67. The offender is convicted.

68. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999.

69. 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 and the matters on the Form 1 are:

1. for the 22 November 2020 offence – 2 years and 9 months; and

2. for the 19 April 2021 offence – 2 years and 6 months.

70. The appropriate aggregate sentence is one of 3 years imprisonment. I have considered s 66 Crimes (Sentencing Procedure) Act 1999. These offences involve some violence and with his current lack of insight and developing mental illness, I am not satisfied that the community would be adequately protected if the offender was to serve the sentence by way of an Intensive Corrections Order. Further, a full time custodial sentence is warranted in this case to provide adequate punishment for the offences committed.

71. I make a finding of special circumstances. This is the offender’s first time in custody and he has a serious mental illness requiring treatment and this justifies a longer parole period.

72. I impose an aggregate term of imprisonment of 3 years with a non-parole period of 18 months to date from 5 September 2021. The non-parole period will expire on 4 March 2023 and the head sentence will expire on 4 September 2024. The offender will be eligible to be released on parole on 5 March 2023.

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Amendments

27 June 2022 - Personal identifier removed.

Decision last updated: 27 June 2022