R v Robati
[2015] VCC 802
•12 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02465
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEIMANA ROBATI |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2015 | |
DATE OF SENTENCE: | 12 June 2015 | |
CASE MAY BE CITED AS: | R v Robati | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 802 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Y. Hardjadibrata | OPP Victoria |
| For the Accused | Mr A.S. Dickenson | Valos Black |
HIS HONOUR:
1 Heimana Robati, you have pleaded guilty to two charges of conspiracy to commit aggravated burglary.
2 The prosecutor, Mr Hardjadibrata, opened the circumstances of the offending, which occurred between 5 and 6 January 2013, by reading from a written ‘Summary of Prosecution Opening for Plea’, which was tendered. The facts were further elucidated in discussion with counsel.
3 In short, you agreed to engage in an aggravated burglary in Dandenong (Charge 1) and another in Chadstone (Charge 2). The proposed offending consisted of what is often described as “drug run-throughs”. I have already sentenced two of your co-offenders and a third, your younger brother, was sentenced in the Children’s Court. The proposed aggravated burglary in Chadstone was an offence common to the three co-offenders just mentioned. It was the only crime for which I sentenced Michael Ormsby-Langdon. Your brother and Tearorangi Tuua were not charged with the conspiracy to commit an aggravated burglary in Dandenong, however each was sentenced for what I have previously categorised as a more serious crime of conspiracy to commit an armed robbery in Springvale.
4 You were initially charged with committing this conspiracy to armed rob but your case was settled, relatively recently, by the prosecution not proceeding with that charge but rather substituting the offence relating to the proposed aggravated burglary in Dandenong.
5 The Special Operations Group arrested you along with seven other men including the three-mentioned co-accused. You and the others were travelling in two cars, one of which you were driving.
6 Charges were withdrawn against three of those arrested and one was discharged at committal.
7
Ormsby-Langdon was placed on a Community Correction Order by me on
14 February 2014.
8 Tuua was sentenced to a total effective term of 40 months' imprisonment with a 20 month non-parole period by me on 16 September 2014.
9 Your brother, who also faced other charges than those mentioned, was sentenced to detention in a Youth Justice Centre.
10 Although I need to keep in mind the penalties imposed on your co-offenders there are many distinguishing features as noted by Mr Hardjadibrata.
11 There is no doubt that the offending is very serious. You played a central role in planning and co-ordination of the proposed crimes. It is very fortunate that police were able to intercept you and your companions before the proposed aggravated burglaries occurred. At the time of police interception your brother and another potential accused were wearing overalls and had T-shirts around their necks which were intended to provide facial cover. The car you were driving had an assortment of very concerning weapons, gloves and T-shirts.
12 When interviewed you lied to police denying that you were intending to commit any offence.
13 Your counsel, Mr Dickenson, provided a body of material prior to the plea. This included a ‘Defence Brief Outline of Submissions’ and a number of psychological reports. One was a Children’s Court Clinic neuropsychological report from 2011. There was a psychological report with an addendum from Dr Michael Wauchope prepared in 2012 and perhaps more pertinently a neuropsychological report from Dr Matthew Hughes, dated 17 April 2015 and a psychological report from Michael Crewdson, dated 21 April 2015.
14 Your counsel submitted that I should sentence you to a term of imprisonment coupled with a Community Correction Order (CCO). He argued that the period of imprisonment should permit you to be released immediately or very soon to enable your rehabilitation in the community to begin. The prosecution neither supported nor argued against this submission. It was conceded that such a penalty was within range and that it was a matter for me whether I was persuaded that it was appropriate in all the circumstances.
15 The principal factors relied upon by your counsel to persuade me that, what seems to be a very lenient outcome, was appropriate were the following.
16 First, you were only 19 at the time of the offending and are now only 21. Accordingly, your age is such that rehabilitation remains a powerful consideration. This is still so, it was submitted, despite your very troubling criminal history.
17
Next, you have now been in prison for 887 days since your arrest on
6 January 2013. Part of this time was attributable to the cancellation of your parole on 9 January 2013. On 9 August 2012 you had been sentenced to
14 months' imprisonment for armed robbery and theft. A non-parole period of seven months was fixed. With pre-sentence detention you were released on 9 November 2012 and so only about seven weeks passed before you committed the current offending; this offending occurring whilst you were on parole. You completed the sentence owed on parole (five months and 18 days) on 26 June 2013. Accordingly, you have now served 718 days by way of pre-sentence detention for the current offending.
18 The period of pre-sentence detention is a substantial term for a young man like you, particularly when seen in the context of the total time spent in adult prison since your arrest on the charges of armed robbery and theft dealt with by this court in August 2012. At that time you had served just over five months in pre-sentence detention.
19 Next, your counsel relied upon your pleas of guilty. It is clear that you must benefit from pleading guilty. An assessment of the timing of the plea is not straightforward. Much time passed before you formally pleaded guilty, however it seems a major impediment to resolution was your refusal to plead guilty to the charge of conspiracy to commit armed robbery on the Waltzing Matilda Hotel in Springvale. In the end the prosecution did not proceed with this charge and accepted your plea to the charge of conspiracy to commit aggravated burglary on the premises in Dandenong.
20 In these circumstances I accept your counsel’s submission that real weight has to be given to your pleas. They save time, expense and the need for witnesses to give evidence. They reflect an acceptance of responsibility on your part and a preparedness to facilitate the course of justice. They reflect favourably on your rehabilitation prospects, although, having said that, I am guarded about your prospects. A critical matter concerning your rehabilitation prospects is your capacity to continue to remain drug free as you now are. You will clearly require considerable support hence your counsel’s argument that this is best provided through the specialised assistance that can be given on a CCO. As Mr Crewdson noted you have not received any systematic treatment for your polysubstance abuse or assistance to correct the psychosocial disadvantages that you claim have led to you engaging in a cycle of crime, illicit drug use and incarceration.
21 Next, your counsel relied upon the psychological material already referred to. He specifically did not seek to activate the principles in Verdin’s case. However, he noted that there is much that is now known about your psychological make-up and with patience and appropriate help there is no reason why you cannot successfully rehabilitate. Mr Crewdson was not prepared, given your age, to class you as having an anti-social personality, indeed your developmental history did not reflect evidence of this. Your education was retarded most likely because learning difficulties were not identified. Mr Crewdson, who discussed the significance of intellectual testing, in summary concluded that he considered you were in the borderline region of intellectual functioning. You have some strengths which might assist you to plan crimes but also you have deficits which would likely impede rational decision making and a clear appreciation of the consequences of your actions.
22 Mr Crewdson said you exhibited some victim empathy but thought you had little insight into your behaviour although this could be improved.
23
Your counsel sketched your background, a matter also addressed by
Mr Crewdson. You are of Cook Island heritage and were born in New Zealand. You came to Australia in 2000 with your father and brother after your parents separated. You have had little contact with your mother since and there is a dispute about the circumstances in which you were separated from her. In any event the breakdown of the family is important to understanding the setting in which you were raised.
24 Mr Crewdson noted the lack of boundaries and parental control and modelling which then placed you and your brother where you became emotionally dependent on peer contact. This resulted in crime and drug use. You struggled academically in the setting of your particular intellectual weaknesses and, as your counsel put it, progressively disengaged and left school early. You pursued an apprenticeship but this lasted only a short time. Drug use increased in seriousness leading to the use of ice and alcohol.
25 It is commendable that you have been able to avoid drug use in prison, however Mr Crewdson noted that although you are not happy in prison the effect of incarceration seems to have little emotional impact on you. This, he thought, raised the possibility of institutionalisation given your history.
26 A critical issue, as I see it, is the need to break the cycle of drug use, offending and prison. Mr Crewdson thought that if “there is not a considered and well-engineered treatment plan then the same vicious circle” will continue and you will “become progressively more institutionalised”. He thought you adapt too readily to prison. He thought that “there are well established cognitive behavioural therapeutic techniques which could be employed providing there was some constructive goal-setting” coupled with a determination on your part to end your present pattern of behaviour.
27 All of this points strongly to the disposition argued for by your counsel.
28 However, much depends on your willingness to engage with the assistance a CCO will provide and a commitment from you to make it work. If you do not do this and return to drug use prison is likely to be your future. You have the benefit of a long-term girlfriend who has been in no trouble with the police herself and who has stood by you. She attended court to support you. Work obligations prevented her appearance today, but another friend has attended to support you.
29 Understandably, your counsel conceded the importance of general and specific deterrence and acknowledged the seriousness of your offending.
30 I had you assessed to determine your suitability for release on a CCO. You were assessed as suitable
31 You will be convicted of both charges and sentenced to an aggregate term of 718 days' imprisonment.
32 In addition to this term of imprisonment you are to be subject to a Community Correction Order which will commence on your release from prison and continue for 30 months after that date.
33 As noted earlier you have served 718 days pre-sentence detention and so will be released immediately upon you being processed.
34 The conditions of the CCO will be as recommended:
o You are to be under supervision;
o You are to undergo treatment and rehabilitation for drug use;
o You are to undergo treatment and rehabilitation for mental health;
o You are to undergo treatment and rehabilitation for programs to reduce re-offending;
o You are to perform 250 hours of unpaid community work.
35 I will make the Disposal Order sought and to which you consented.
36 Counsel, I am still required obviously I think to make a s.6AAA declaration. It has got a sense of artificiality about it when an order such as the one I have imposed is imposed.
37 Had you not pleaded guilty, I expect I would have sentenced you to at least two years and eight months' imprisonment. It is likely to have been longer depending on whether I was persuaded that such a term should have attached to it the additional penalty of release on a CCO. The non-parole period is likely to have been at least two years, but its precise length would have depended on the actual term of imprisonment.
38 As I have just noted to counsel, this s.6AAA declaration is somewhat artificial, but you should understand that the sentence I have imposed, both in its length and the conditional release on a CCO reflect a considerable benefit for pleading guilty.
39 When the document is prepared I am going to get your counsel to assist me and have you sign it. I am sure you understand that you will need to go back with the prison authorities and be processed before being released, but I expect that will happen some time in the next hour or so.
40 Anything that needs correcting I have overlooked that counsel can identify?
41 MR HARDJADIBRATA: No, Your Honour.
42 MR DICKENSON: No, Your Honour..
43 HIS HONOUR: I have signed those orders, Mr Hardjadibrata.
44 MR HARDJADIBRATA: Thank you.
45 HIS HONOUR: I will hand down two copies to you and I will leave the Bench so that my associate can prepare the order.
46 (Disposal order signed and acknowledged.)
47 (Community corrections order signed and acknowledged.)
48 We will adjourn. Thank you both for your help.
49 MR HARDJADIBRATA: As Your Honour pleases.
50 MR DICKENSON: As Your Honour pleases.
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