Siilata v The Queen
[2019] VSCA 277
•28 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0196
| DAMIAN SIILATA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ, WHELAN and PRIEST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 October 2019 |
| DATE OF JUDGMENT: | 28 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 277 |
| JUDGMENT APPEALED FROM: | [2018] VSC 479 (Coghlan JA) |
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CRIMINAL LAW – Appeal – Sentence – Aggravated carjacking – Sentence of seven years’ imprisonment – Order that five and a half years of sentence be cumulated with existing sentence of three years’ imprisonment – Total effective sentence of eight and a half years’ imprisonment with single non‑parole period of six years – Whether sentence, cumulation order and non‑parole period each manifestly excessive – Seriousness of offending – Effect of youth on general sentencing principles where offending serious – Importance of denunciation and general and specific deterrence – Prospects of rehabilitation – Current sentencing practice – Cases relied on by applicant as comparable of no assistance – Sentence, cumulation order and non‑parole period each within range of available sentencing options – Leave to appeal refused – Crimes Act 1958 s 79A – Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125, Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428, R v Bolton [1998] 1 VR 692 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Waters | Dowling McGregor |
| For the Respondent | Mr C Carr with Mr T Bourbon | John Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WHELAN JA
PRIEST JA:
The applicant pleaded guilty to aggravated carjacking contrary to s 79A of the Crimes Act 1958. He was sentenced to seven years’ imprisonment. The sentencing judge ordered that five and a half years of the sentence be served cumulatively upon a sentence of three years’ imprisonment that the applicant was already serving. The result was a total effective sentence of eight and a half years.[1] The sentencing judge fixed a single non‑parole period of six years.[2]
[1]DPP v Pesefea [2018] VSC 479 (‘Reasons’).
[2]The sentencing judge ordered that the non‑parole period be fixed from 17 October 2017, being the date upon which the applicant had been sentenced to three years’ imprisonment with a non‑parole period of 20 months imposed at the Dandenong Magistrates’ Court.
The applicant seeks leave to appeal against his sentence on the ground that the aggravated carjacking sentence, the order for partial cumulation and the fixing of a new single non‑parole period of six years were each manifestly excessive.[3]
[3] On the hearing of the application for leave to appeal, the applicant abandoned a separate ground of appeal that the sentencing judge erred when assessing his prospects of rehabilitation, in particular by assessing them as ‘bleak’ and by failing to give sufficient or any weight to his youth. The applicant relied on those matters (and others) in relation to his manifest excess ground of appeal.
To succeed the applicant must establish that the sentence, order for partial cumulation and non-parole period that was set were wholly outside the range of available sentencing options.
Circumstances of the offence[4]
[4]This section is drawn from the Reasons [7]-[24] and the Summary of Prosecution Opening tendered on the plea.
This application for leave to appeal arises from events that took place on 2 July 2017. At about 7:30 pm the applicant met AP, Taisi Bartley, Isaia Pesefea and JP,[5] in the Melbourne CBD. Their ages ranged from 16 to 20. At Bartley’s suggestion, the group gathered with the intention of committing an armed robbery on an IGA store in Brunswick West.
[5]Pseudonyms have been used as the applicant’s co-offenders, AP and JP, were 16 years old at the time of the offence.
Bartley brought some clothing and other items with him, including rubber gloves. The others obtained gloves. They took a tram to an area near the IGA store. They surveyed the store and surrounding area on foot before leaving to go and change their clothes to disguise themselves.
A bit later, Mr Paolo Costa[6] parked his Nissan Patrol car in Peacock Street, Brunswick West. His friend had gone into one of the houses while Mr Costa stayed in the car. The group were walking towards Peacock Street and noticed Mr Costa in his car using his phone.
[6]Also known as Paul Costa.
They decided to carjack Mr Costa’s car and use it in the armed robbery. None of them knew how to hotwire a car, so they needed a car with an occupant. Mr Costa’s car was ideal for their purposes. They agreed that Pesefea would pull Mr Costa out of the driver’s seat. Bartley was to be the driver. The applicant would get into the front passenger’s seat and JP and AP would get into the back seat. Pesefea was to render Mr Costa unconscious by choking him. He was then to join the other two in the back seat.
The group began to put their plan into action at 9:45 pm. Pesefea tried to pull Mr Costa out of the driver’s seat. The applicant got into the front passenger’s seat. JP and AP got into the back seat and pulled Mr Costa backwards towards them. Bartley got into the driver’s seat and Pesefea took the remaining space in the back seat of the car.
However, things did not go according to the plan. Mr Costa was a tall man. He resisted and struggled against Pesefea. Mr Costa was eventually dragged into the back seat. He ended up face down with his head towards AP (on the back seat passenger’s side) with his legs near Pesefea (on the back seat driver’s side) and JP (in the centre back seat). Mr Costa was struggling, thrashing around and screaming. The applicant and Bartley also tried to restrain Mr Costa. At some stage, JP handcuffed Mr Costa’s right wrist.
Bartley started the car and began to drive slowly. As the car started moving, AP said ‘I did it’. Someone asked what he had done. He replied ‘I stabbed him’. AP had stabbed Mr Costa in the neck. JP reported hearing Pesefea say ‘Do not stab him’ at some stage. It was not part of the plan to attack Mr Costa with a knife.
Mr Costa was bleeding heavily. Pesefea grabbed Mr Costa and put him in a choke hold to render him unconscious. Someone suggested moving Mr Costa to a nearby car park. AP and Pesefea, possibly with assistance from other members of the group, removed Mr Costa from the car. Mr Costa’s head slammed into the ground in the process.
Mr Costa’s body was carried into Dunstan Reserve, Brunswick West and left there face down where he was discovered the next morning. Police later found the knife AP had used to stab Mr Costa near his body.
The group drove the car to a reserve in Coburg and abandoned it. They disposed of some items (such as the gloves JP and Pesefea wore) and several of them changed or disposed of their clothes. The applicant took Mr Costa’s phone. The group returned to Melbourne by train. The car and other items they had left behind (including a set of handcuffs) were recovered by police several days later.
The applicant’s circumstances
The applicant was born in Samoa in 1999. He lived with his mother and her parents. He came to Australia in 2011 with his older brother, uncle and aunt (with whom he then lived). He met his co-accused, Pesefea, at school in 2015. The applicant became disaffected with school and began spending more time with friends. This created tensions within his family.
A psychologist, Mr Michael Bilyk, prepared a report in October 2017 in respect of the applicant’s earlier offending. The applicant had attended 12 consultations with Mr Bilyk after being referred to him by Youth Justice in August 2016 to address violence risk factors. Mr Bilyk noted that the applicant said he experienced isolation, disconnectedness and a deterioration of close attachments and supports since arriving in Australia. Mr Bilyk stated that the applicant seemed to be struggling with adjusting to life in Australia. The applicant told Mr Bilyk that in Samoa he lived in a rural community governed by community elders, that families were familiar, supportive and engaging of each other. Mr Bilyk reported that the applicant had seemingly begun associating with other disconnected youth and regularly used alcohol.
In February 2017 the applicant appeared in the Melbourne Children’s Court and was placed on a Youth Supervision Order (‘YSO’) for nine months without conviction. The offences in respect of which this order was made were intentionally causing injury, unlawful assault, theft from a shop, affray, committing an indictable offence while on bail, failing to provide a valid ticket in a designated area and possessing and using a controlled weapon without excuse.
In July 2017 the applicant was sentenced in the Melbourne Children’s Court in respect of charges including robbery and breaching a YSO.
In October 2017 the applicant was sentenced to three years’ imprisonment with a non‑parole period of 20 months at the Dandenong Magistrates’ Court. This sentence was in respect of charges including intentionally causing injury and reckless conduct endangering life. The sentence appears to subsume, in part, the earlier sentence of the Children’s Court in relation to breaches of the YSO and the offences to which that order related.
The applicant was 18 years old at the time of the offence and 19 years old at the time of sentencing.
The sentencing judge’s remarks
The sentencing judge set out the facts in some detail, the applicant’s prior offending, personal circumstances (including his youth), plea of guilty, the effect on the victims and that the applicant would face deportation. The judge assessed the applicant’s prospects of rehabilitation as bleak.
The applicant made a statement and gave an undertaking that he would give evidence in accordance with it in the prosecution of his co-offenders. The judge was satisfied that the applicant’s assistance could not significantly help the authorities. He determined not to give any discount in respect of it, nor to exercise his discretion under s 10A(2) of the Sentencing Act 1991 to impose a non-parole period of less than three years. He did have regard to the undertaking in relation to the possible risk the applicant might face because he had offered to assist the authorities.[7]
[7]Reasons [91]-[93].
The judge assessed the offending as a serious example of aggravated carjacking.
The parties’ contentions
The applicant contends that the sentence of seven years on the aggravated carjacking charge, the order for partial cumulation and the fixing of the non-parole period are each manifestly excessive. He contends that this must be so when regard is had to the circumstances of the offence, his moral culpability, antecedents, guilty plea, youth, likelihood of deportation, prospects of rehabilitation, the assistance he offered to authorities, the principle of totality and current sentencing practice.
Counsel for the applicant accepted that the offending was serious offending. However, he noted that the applicant had no knowledge that AP had a knife and it was not part of the plan for a knife to be used nor for Mr Costa to be killed. He was not to be sentenced for causing the death. Counsel submitted that if Mr Costa had not been killed, the sentence would not have been as high.
Counsel for the applicant also placed emphasis on Mr Bilyk’s report and submitted that it was the disconnection with his family and community that was at the heart of the applicant’s behaviour. As a consequence of his likely deportation, counsel submitted that the applicant will be reconnected with his family and community in Samoa such that his prospects of rehabilitation are better than bleak. When that is taken into account, together with the applicant’s youth and other circumstances, the applicant contends that his sentence is manifestly excessive.
The applicant relied on a number of authorities in relation to his submission that the sentence imposed did not accord with current sentencing practice.[8]
[8]Aggravated carjacking: DPP v Najjar [2018] VCC 206 (5 ½ years); DPP v Backer [2018] VCC 592 (3 years 9 months); DPPv Arvidson [2017] VCC 1264 (4 years); DPP v Ibrahim [2018] VCC 1142 (3 ½ years). Armed robbery: Poidevin v The Queen [2016] VSCA 165 (4 years); Middleton v The Queen [2018] VSCA 23 (4 ½ years); DPP v Jackson [2016] VCC 2003 (3 years).
The applicant noted that the non-parole period imposed by the Magistrates’ Court had been 55% of the head sentence. This had been replaced by a new single non-parole period of six years which was 70.5% of the head sentence. The applicant noted that the judge had referred to the non-parole period in the Magistrates’ Court being two years when it was only 20 months.
The respondent submitted that manifest excess was not established, and the sentence, order for partial cumulation and new single non‑parole period were not wholly outside the range of available sentencing options. In support of this argument, the respondent submitted that the case involved a serious example of aggravated carjacking in company, committed by an applicant who had previously engaged in gratuitous violence and had failed to modify his violent behaviour despite systemic intervention. The respondent contended that in cases involving serious and/or prevalent offending (such as the present) the emphasis usually to be given to a youthful offender’s rehabilitation prospects must be subjugated to other sentencing principles such as general and specific deterrence and denunciation, and the sentencing judge therefore rightly gave limited weight to the applicant’s youth. In short, the respondent submitted that the judge had taken into account all relevant matters and given appropriate weight to them.
Consideration
The maximum penalty available for aggravated carjacking is 25 years’ imprisonment.[9]
[9]Crimes Act 1958 s 79A(2).
The applicant was not to be sentenced for causing Mr Costa’s death. The sentence imposed does not support any suggestion that the judge proceeded on any other basis. Rather, the judge was mindful of the fact that the death did not form part of the applicant’s offending. The judge correctly described the offending as a serious example of carjacking. It was committed in the company of others, was planned and was violent (leaving to one side the stabbing of Mr Costa which resulted in his death). The plan involved rendering Mr Costa unconscious by choking him. At one stage in the course of attempting to execute the plan, Pesefea did put Mr Costa in a choke hold. That action was part of the serious attack on Mr Costa. In addition, when Mr Costa sought to defend himself by fighting back, he was confronted with five assailants. To be placed face down during the course of the struggle in the confined spaces of the vehicle gave him little chance of defending himself. He must have been terrified.
True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes.[10] Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offending increases.[11] That must be so in this case.
[10]Azzopardi v The Queen (2011) 35 VR 43, 55-56 [37]-[40] (‘Azzopardi’); DPP v Lawrence (2004) 10 VR 125, 132 [22] (‘Lawrence’).
[11] Azzopardi (2011) 35 VR 43, 55-56 [37]-[40]; Lawrence (2004) 10 VR 125, 132 [22].
It does seem that the applicant experienced disconnection from his family and the Samoan community. It is likely that he will be deported and returned to that community. Nevertheless, the history of the applicant’s conduct before the offence was committed and the fact that he committed the carjacking when he was on a YSO and bail for other offences, does not offer much hope for his rehabilitation. In our opinion, the judge’s description of his prospects for rehabilitation being bleak was apt.
Current sentencing practice is a factor to be taken into account. It cannot control the sentencing discretion in a particular case and does not put an upper or lower limit on the sentence.[12] Each case must be decided on its own facts and circumstances. As noted above, the applicant relied on a number of carjacking cases in relation to his submission concerning current sentencing practice. They do not assist. The facts in the cases relied on by the applicant are very different from the circumstances of this case. The applicant also relied on some armed robbery cases. They also do not assist. They relate to a different offence. It may be that there are some commonalities between the two offences but this does not make them of any assistance in the sentencing task in this case.
[12]DPP v Dalgliesh (2017) 262 CLR 428.
The order for partial cumulation on the Magistrates’ Court sentence was unexceptional and does not render the sentence imposed manifestly excessive. In his written sentencing remarks, the judge did mistakenly refer to a non-parole period of two years (instead of 20 months) in relation to the sentence the applicant was then serving which had been set by the Magistrates’ Court. That is of no moment. That the non-parole period the judge fixed was 70.5% of the head sentence (compared to 55% in relation to the Magistrates’ Court sentence) does not mean that the period set was manifestly excessive. There is no fixed ratio to be applied.[13] The judge’s task was to set a single non-parole period in the circumstances at the time he was sentencing. The sentence imposed by the judge was one that was within the range of sentencing options available to him.
[13]R v Bolton [1998] 1 VR 692, 699.
We would refuse leave to appeal.
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