R v Tuua
[2014] VCC 1551
•16 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01149
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEARORANGI TUUA |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 September 2014 | |
DATE OF SENTENCE: | 16 September 2014 | |
CASE MAY BE CITED AS: | R v Tuua | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1551 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albert | OPP Victoria |
| For the Accused | Mr D. Care | James Dowsley and Assoc. |
HIS HONOUR:
1 Tearorangi Tuua, you have pleaded guilty to one charge of conspiracy to commit an armed robbery and one charge of conspiracy to commit aggravated burglary.
2 On 6 January 2013 you, along with seven others, were in a two car convoy (four people in each car) when intercepted by police SOG. Members of your group had been under police surveillance as part of an investigation into armed robberies in the Springvale and Clayton areas.
3 You accept that your purpose on the evening was to be part of an intended armed robbery on the Waltzing Matilda Hotel in Springvale and an aggravated burglary on a private home in Chadstone.
4 Weapons were found in the cars. You were in a Mercedes Benz which had a semi-automatic imitation gun in the centre console, as well as knives, machetes, a jemmy bat, a pruning saw, a baseball bat, a sledge hammer and two axes in the boot.
5 You were interviewed by police. I have had some difficulty understanding precisely what you were admitting when interviewed. Whilst you seem to admit conspiring to commit an armed robbery (q.283 and q.292) you also state you only knew of the proposed burglary on the house (q.326). In any event, after the interview you made a statement in which you made admissions to conspiring to commit both crimes. You said your role in the proposed armed robbery would be to stay in the car and be the driver. The proposed aggravated burglary concerned what is sometimes called a “drug run through”. You told police you thought the plan was to hold everyone down, although you were hoping no one would be there. You were expecting to steal TV’s, “and whatever they had”.
6 You told police you needed money because you had no work. You had not received any money from Centrelink and had bills you could not afford.
7 I accept that you were recruited by Heimana Robati, with whom you went to school. Heimana Robati also recruited his brother Henry, aged 16. Heimana Robati was recruited by Michael Ormsby-Langdon to take part in the aggravated burglary. The remaining four occupants of the cars, one in the Mercedes Benz along with you and the Robati brothers, and three in the car with Ormsby-Langdon, denied the allegations and had all charges withdrawn against them.
8 Henry Robati was dealt with in the Children’s Court for the current offending and a number of other matters and was sentenced to be detained in a youth justice centre for 30 months. On each of the charges of conspiracy to commit armed robbery and conspiracy to commit aggravated burglary, he was sentenced to 15 months' detention with 5 months of each sentence being ordered to be served cumulatively on each other and on a sentence of 20 months for an armed robbery.
9 Michael Ormsby-Langdon pleaded guilty to conspiracy to commit an aggravated burglary and was sentenced by me on 14 February this year. He was convicted and released on a community correction order for two years. I accepted that the purpose of the aggravated burglary was to confront a cannabis dealer in his home and steal his cannabis. He was very fortunate to receive this disposition, but there were powerful matters he was able to rely upon in mitigation of his offending.
10 Heimana Robati has denied the allegations. His trial is listed for 2 March 2015. He was aged 19 at the time of the current offending and will turn 21 in December this year, a matter I commented upon this morning.
11 You pleaded guilty at committal mention in June last year and your plea was listed before Judge Gucciardo on 29 September 2013. It was adjourned to enable you to get legal representation. However, on 25 October you indicated that you wished to plead not guilty and your case was adjourned to join with a directions hearing for Heimana Robati. At the directions hearing and a subsequent mention you were unrepresented, but on 27 February 2014 at mention before Judge Hannan you pleaded guilty and your plea hearing was listed before me on 12 June 2014.
12 At the plea hearing on 12 June 2014 you were unrepresented, and after that appearance, there followed a series of mentions to ensure you obtained legal representation. That could not be achieved until 1 September 2014 when Mr Care, instructed by James Dowsley and Associates, appeared for you. Your plea hearing was then listed yesterday, 15 September.
13 In the course of ensuring you were legally represented I had a number of conversations with you and have been left with the strong impression that you intellectual functioning is far from high.
14 It was my understanding, as well as that of the prosecution until yesterday, that you intended to make an undertaking to give evidence against Heimana Robati.
15 During plea submissions yesterday, your counsel said he had been instructed that you would not give an undertaking to give evidence. After some discussion, I was told after lunch yesterday that you would make such an undertaking. I was concerned that any decision on this matter not be made under unacceptable pressure and said I would allow whatever time was required to carefully reach a final position. Your counsel asked if you could have overnight and I agreed to this.
16 Yesterday the prosecution had indicated that release on a community correction order was open if you undertook to give evidence. I tried to make it clear that whilst I considered release on a community corrections order to be particularly lenient, if not manifestly inadequate, I had formed no final view and was open to be persuaded that such a disposition was available. I stated that I was likely to place very considerable weight on the joint submission by both parties that a CCO was open, if you made an undertaking to give evidence. On the other hand, I stated my strong tentative view that without the undertaking, immediate imprisonment was inevitable.
17 This morning you were accompanied to court by relatives and I was told that you declined to make any undertaking to give evidence.
18 You instructed your counsel that this was because of concern for your safety. Whilst I can understand that you might have concerns, I also noted that as a statement from the Bar table, it was of limited assistance to me.
19 When your plea was first listed before Judge Gucciardo, the prosecution position, put by Mr Albert, was that on undertaking to give evidence a wholly suspended sentence would be in range. Of course, as noted, you subsequently pleaded not guilty before being arraigned, but changed your plea to guilty in February this year.
20 Yesterday, Mr Albert opened the circumstances of the offending by reading from a 'Summary of Prosecution Opening' which was tendered.
21 The opening assumed that you would make an undertaking to give evidence against Robati, in which case, as I just noted, it was submitted that a community corrections order was available.
22 Mr Care, who appeared for you, tendered a document headed ‘Plea Submissions on Behalf of the Accused’.
23 Your counsel relied upon a number of matters in mitigation, including your relative youth, your recruitment by Heimana Robati, your admissions to police including a signed statement, as well as the pleas of guilty made in February 2014, together with the absence of any criminal history or pending matters
24 You must benefit from your pleas of guilty, despite the fact that although indicating an early intention to do so, you resiled from this between October last year and February this year.
25 Your counsel set out your personal history. You are 24 and were 22 at the time of offending. You were born in New Zealand and came to Australia to live with your aunty in 2000. You have been employed since leaving school. You have the offer of a job at the moment.
26 Your counsel made submissions concerning the need to pay regard to the sentence imposed on Mr Ormsby-Langdon. Mr Care submitted that I should impose a CCO on you, even in the absence of an undertaking to give evidence.
27 The prosecution submitted that immediate imprisonment was required in the absence of an undertaking to give evidence.
28 During submissions, I expressed the view that I thought the proposed armed robbery to be a particularly serious crime and more serious than the proposed aggravated burglary, although that is not intended to undermine the seriousness of the latter.
29 Mr Care noted your family support and submitted that I should accept you are remorseful and have good rehabilitation prospects.
30 I accept you told police you regret your actions, realised you had been stupid and were sorry for jumping in a stupid situation you should not have been in. Remorse is not always an easy quality to quantify. In all the circumstances, I am prepared to accept that you are remorseful for your actions, that you regret them and that your pleas facilitate the course of justice. You have made a statement and the possibility of being called to give evidence against Heimana Robati remains.
31 As stated in discussion, I am prepared to sentence you on the basis that you were led into the current offending by others and wanted to limit your involvement. You were hoping for the best on the proposed aggravated burglary. You were to be the driver on the proposed armed robbery; a lesser but still significant role.
32 It is in the community’s interest, as well as yours, to encourage your rehabilitative prospects and I am well aware of the deleterious influence of imprisonment on a person like you.
33 You have consented to me making an order for the taking of a forensic sample. I will make the order and my reasons will appear in it. You must understand that a police officer may use reasonable force to obtain the sample.
34 Despite the seriousness of your crimes, I have sympathy for you and want to do all I can to limit the risks of contamination in prison. I am aware that two of your co-offenders have been sentenced leniently, even considering the different sentencing regime applicable to your child co-offender and the lesser offending and strong mitigating factors applicable to Mr Ormsby-Langdon.
35 Could I ask you to stand up, please.
36 On Charge 1, the charge of conspiracy to commit an armed robbery, you will be convicted and sentenced to three years' imprisonment.
37 On Charge 2, the charge of conspiracy to commit aggravated burglary, you will be convicted and sentenced to 20 months' imprisonment.
38 I order that four months of the sentence on Charge 2 be served cumulatively on Charge 1.
39 That makes for a total effective sentence of three years and four months or 40 months' imprisonment.
40 I fix 20 months as the period you must serve before being eligible for release on parole.
41 Had you not pleaded guilty, I expect I would have sentenced you to a total effective sentence of about five years' imprisonment and fixed a non-parole period of about three years. You can sit down, Mr Tuua.
42 Is there anything that - - -
43 MR ALBERT: Just two matters, Your Honour. The forensic sample order is a retention order.
44 HIS HONOUR: Is it?
45 MR ALBERT: Yes.
46 HIS HONOUR: Let me just check that. Yes, it is. All right, thank you.
47 MR ALBERT: And Your Honour said that Heimana Robati would be 21 by the time of his trial. He will be 20. So he was born 13/12/94, so he will turn 20 in December of this year.
48 HIS HONOUR: He will. He was born in 94, was he?
49 MR ALBERT: Yes, that is my note.
50 HIS HONOUR: Well then I think Judge Hannan was right when she calculated his age then. He is even younger than I thought.
51 MR ALBERT: Yes, I thought Your Honour was indicating that there is chances of reduced - the older he is - of getting a youth - - -
52
HIS HONOUR: You are quite right. I miscalculated his age and was acting under the assumption he was going to turn 21 this year and that is why I was
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53 MR ALBERT: Yes. Date of birth, 13 December 1994. As I indicated there's an are in the opening where his date of birth is wrong, I put the same date as Mr - - -
54 HIS HONOUR: You did.
55 MR ALBERT: That was a replication. It is 13 December 94.
56 HIS HONOUR: So he will turn 21 towards the end of next year.
57 MR ALBERT: Yes. Twenty in December this year and 20 at the time of trial in February.
58 HIS HONOUR: Yes. Well the same reasoning still applies.
59 MR ALBERT: Yes.
60 HIS HONOUR: There has been a substantial period of time between the offending and the time of his proposed trial date, and the more time that elapses, the more diminished becomes the argument that detention should be imposed.
61 MR ALBERT: Yes.
62 HIS HONOUR: Anyway, that is a matter for those acting for him. Just as a matter of interest, has he been sentenced to imprisonment previously, Mr Robati?
63 MR ALBERT: Yes, Your Honour.
64 HIS HONOUR: He has been?
65 MR ALBERT: Yes.
66 HIS HONOUR: Well maybe all those concerns about YJC are academic. All right. I will leave the Bench so you can speak to your client if the gaol authorities permit that before he is taken downstairs, Mr Care.
67 MR CARE: Thank you, Your Honour.
68 FILE NOTE ON REVISION: IN HIS INTERVIEW HEIMANA ROBATI SAYS HE WAS BORN ON 13 DECEMBER 1993 WHICH WOULD MEAN HE WILL TURN 21 IN DECEMBER 2014 AS I STATED IN MY REASONS AT PARAGRAPH 10. I WAS SUBSEQUENTLY ADVISED BY THE PROSECUTION THAT A BIRTH CERIFICATE HAS BEEN OBTAINED AND IT CONFIRMS MR ROBATI’S BIRTH DATE AS 13 DECEMBER 1993.
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