DPP v Po'oi & Anor [2023] VCC 1659

1. What happened is set out in the prosecution opening. It is the same opening for the sentence indication hearing and the plea hearing. Its factual contents are accepted by both of you. For convenience, I will refer to you as Tuala and Po'oi rather than Mr Tuala and Ms Po'oi. I will refer to Hung Bun Lao as the victim.
2. On Saturday, 26 June 2021 at about 9:00 pm, the victim received a telephone call from two males he knew as 'Long' and 'Frankie'. Shortly afterwards, he spoke to Tuala, who said to him 'Hey, where are you? You better come man or I'll come and fucking kill you. I'll go to your mum's house in Noble Park and smash it'. The victim agreed to meet Tuala and give him money The victim told Tuala where to go.
3. Tuala and Po'oi arrived at the address after the victim had arrived. The victim got into Tuala's car. In the back seat was Po'oi, wearing a black facemask and a hood.
4. Tuala, picked up a tomahawk from beside his seat, raised it and said to the victim 'I'll fucking slice your face in half now'. He swung the tomahawk towards the victim stopping short of hitting him. Po'oi said 'Fuck cunt' and put some kind of hook around his neck and pulled him against the seat. He struggled to breathe. Po'oi slapped him to the right side of his face hard and Tuala, hit his face with a hand.
5. Tuala received a phone call from 'Frankie'. The victim tried to leave the car but his door was locked. After the call Tuala said, 'You're coming with us, we are taking you to the farm'. The victim understood the word 'farm' to mean kidnapping a person, taking them to the bush and killing them. With the tomahawk still raised, you, Tuala demanded the victim give him the keys to his car. He did so and Tuala gave them to Po'oi, who got into that car and drove it.
6. Tuala drove to an address in the Cranbourne area followed by Po'oi. Po'oi got into Tuala's car while he drove the victim's car away. Po'oi held the tomahawk and said to the victim 'don't go anywhere or I'll slice you'.
7. About 30 minutes later Tuala phoned Po'oi, telling her the police were in the area. Po'oi drove to a flat in Noble Park. Previously, both of them had demanded money from the victim. While in the car, the victim spoke to 'Frankie' about obtaining the money demanded.
8. 'Frankie' then drove the victim to several locations in an attempt to obtain money. He got $215 from an acquaintance.
9. Between about 2 and 3 am, Tuala phoned the victim and demanded he come out the front with the money. He came outside, entered the car where Tuala and Po'oi were present and handed over $165, for which, Tuala punched him in the face. He tried to open the door to get out but, again, it was locked.
10. Tuala said to the victim 'we want $1,000 each'. The victim replied he could not find that sort of money. Tuala then repeatedly punched the victim in the face and said, 'that's it, you're finished'. Tuala then produced what appeared to be a firearm and struck the victim to the right side of the head with it. Tuala then pushed the object into the victim's neck and said, 'this thing it will get through your neck'.
11. The victim was driven to a service station and food outlet where Po'oi bought food and mobile phone credits. Po'oi and Tuala offered the victim food but he did not respond and was struck in the head with the firearm. Tuala demanded the victim's mobile phone and passwords or else he would put a bullet in his head. He gave both. Tuala searched his phone.
12. The victim was driven around the Cranbourne area, stopping at locations. At each stop either Tuala or Po'oi would place a mask over his head to prevent him from seeing. Tuala said, 'keep quiet or I will shoot you'. When leaving each address, Tuala and Po'oi swapped between vehicles while the victim remained in the BMW throughout.
13. The victim was driven to Tuala's house. A mask was placed on him before taken inside. Once inside, his arms and legs were bound to a desk chair with cable ties.
14. When the victim said he was struggling to breathe with the mask on, Po'oi said 'you can't breathe, I'll put one hole in for your mouth and you will breathe easy', while pushing the barrel of the firearm and the material of the mask into his mouth.
15. The mask was removed and the victim saw two firearms, a box of ammunition and the tomahawk with which he had been threatened. Tuala said 'you're going to die here. Have a smoke'. He gave him a cigarette. Po'oi found the victim's address in his phone and said, 'that's a job tonight'.
16. Tuala loaded a firearm, cut the cable ties around the victim's arms. He told Po'oi 'put him in the boot and take him to the other place and dump him'. The victim managed to remove the cable tie around his ankles. Tuala stripped him of most of his clothes and handed the firearm to Po'oi. When Tuala realised he had removed the cable tie from around his ankles, he punched him in the face.
17. While Tuala and Po'oi were distracted the victim took and concealed a phone. Po'oi told him 'hurry or I'll kill you'. She forced him into the front passenger seat of the Honda Civic.
18. Po'oi drove away. As she drove, Po'oi held the steering wheel with her left hand, and aimed the loaded firearm at the victim with her right hand.
19. After Tuala's phone rang, through a series of events, Po'oi lost control of the vehicle and it struck a brick fence. Po'oi dropped the firearm and the victim punched her several times to the head. They struggled. Po'oi managed to open the car door and pick up the firearm but the victim grabbed her by the hair, punched her in the head and managed to get out of the car through the driver's door. Po'oi fell out of the vehicle onto the nature strip. The firearm was underneath her body and the victim jumped on top of her in an attempt to get the firearm. A bystander saw the two struggle and restrained Po'oi. He took possession of the firearm and handed it to another witness. The bystander restrained Po'oi until the police arrived.
20. Later, Tuala drove up in the other vehicle. Two police members sought to stop him but he drove away.
21. Tuala contacted his mother and sister, they drove down from NSW. With them, he drove to Griffiths in New South Wales. Later again, he was arrested. When interviewed, he made no comment.
22. Analysis of the phone Tuala used showed between 14 and 26 June 2021, he made 51 phone calls, and sent 74 messages to his former partner. Also, he answered 30 phone calls from her, one of which lasted 55 minutes. This conduct was in contravention of the family violence intervention order where he is the respondent. This constitutes Charge 1 on indictment M11436010, being persistent contravention of a family violence intervention order.
23. With another phone, analysis revealed between 30 June and 4 July 2021, Tuala made 8 phone calls and sent 15 text messages to his former partner. He also answered 7 phone calls from her, one of which lasted 28 minutes. This conduct also contravenes the conditions of the family violence intervention order. It forms part of Charge 1 mentioned above.
24. The victim sustained a haematoma on the right side of his head, an abrasion on the right upper side of his chest and abrasions on both knees. He received medical treatment.
25. On 28 June 2021 at 6:00 pm police executed a search warrant at Po'oi's home. They found:

(a) a zip lock bag containing brown powder which contained heroin. It was a small amount of brown powder;

(b) a zip lock bag containing a single white, mottled tablet which contained MDMA.

1. Tuala, excluding appeal hearings, has appeared in a criminal court on 12 occasions and has been found guilty or convicted of 59 charges. He has been sentenced to imprisonment on 9 occasions. His longest sentence was 3 years' imprisonment for various charges including armed robbery. That was in July 2012.

1. Po'oi has appeared in a criminal court on 6 occasions and has been found guilty or convicted of 31 charges. She has never been sentenced to imprisonment.

1. There is no victim impact statement. One can safely assume the entire incident was terrifying for the victim of the kidnapping.
2. There is also no impact statement from Tuala's former partner.

1. While detailing your personal circumstances, I will refer to you using a personal pronoun.

1. You, Ms Po'oi, were born in Auckland and are now 35. You grew up in New Zealand. You have two sisters, aged 28 and 29. Both were given up for adoption at birth. You have 4 half-siblings.
2. Your Tongan father was an alcoholic. He was violent towards you and your mother. You were raped several times by your father's brother, beginning at the age of 6.
3. In 1996, you and your family moved to Australia. You were kicked out of home at 13 due to a dispute with your mother's then boyfriend. You were homeless for a time but at 15 your mother sent you her to your father's home in New Zealand. You were required to care for your father's young children from a new relationship while he used drugs and lived a criminal lifestyle. You returned to Australia while still a teenager.
4. You were expelled from school in Year 11. You attended a Year 10 equivalent at TAFE but did not complete it.
5. After leaving school you worked in a factory. You stopped work when forced to do so by your ex-partner and were then in full-time home duties when your children were young. You later worked in a catering business owned and operated by your cousin. You were working there at the time of this offending.
6. You had an 8-year relationship with Andrew. He was violent and emotionally abusive towards you. You escaped to a women's refuge in 2015. You have twin daughters from that relationship, now aged 10. They live with their father. You have supervised access to them.
7. In 2019 and 2020 you were in a relationship with another male. He was continually violent and controlling.
8. You started drinking alcohol at 12 or 13. At various times you have been in the habit of drinking up to 3 litres of spirits per day. You were introduced to methylamphetamine at age 14. At your peak you reported using 3.5 grams per day. You have been abstinent while in custody.

1. Tuala, you were born in Australia and lived in Melbourne for much of your life. You have Samoan ethnicity and your mother and father moved to New South Wales in recent years. You are one of 5 siblings but suffered the loss of your brother in 2017.
2. You spent your childhood in the south-eastern suburbs and only attended school to Year 9.
3. You started problematic use of alcohol as a child, which led to disengagement from school and ultimately your appearance in the justice system as a child. It was only following your remand in youth custody that led to your exposure to drug use, which now informs the current and more recent offending.
4. At the time of your remand, you were working as a truck jockey and living with your then partner of 7 years. You have 2 children together, aged 2 and 7.

1. Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d) to manifest the denunciation of the type of conduct the offender engaged in; and,

(e) to protect the community from the offender.

1. Each of these purposes is relevant to both of you.

1. In terms of imprisonment, the maximum penalties for the offences to which you have pleaded guilty are:

(a) kidnapping - 25 years;

(b) theft of a motor vehicle - 10 years;

(c) persistent contravention of a family violence protection order - 5 years;

(d) failing to stop on direction - 6 months or for a second or subsequent offence, 12 months;

(e) possession of a drug of dependence where the possession is not for the purposes of trafficking - one year.

1. I have set out in some detail the circumstances of the offending. This offence of kidnapping is a significant example of a serious offence. It is prolonged. It involved a series of assaults on and threats to the victim.

1. There is nothing to reduce the levels of your moral culpability. I have not treated your respective involvements as equal because the kidnapping was the idea of Tuala and he took the lead. But Po'oi was an active participant, assaulting and threatening the victim.

1. I have mentioned the strange course these proceedings have taken. Your respective guilty pleas have come late in the process, starting with the laying of the charges and ending with a jury trial.
2. By pleading guilty, you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system. It creates room for those proceedings which genuinely require a jury trial. It relieves witnesses of the burden of giving evidence in this Court. This is especially so where the victim is concerned.
3. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The sense of crisis expressed by the Court in Worboyes v R_[1]_ has almost disappeared. This court is still faced with the backlog of cases arising when there were no jury trials during the period of greatest restrictions. To an outsider, these considerations may seem irrelevant. However, they are not. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
4. The victim gave evidence at the committal hearing. That he was seen by you as a doubtful witness from the perspective of truthfulness is something I do take into account. But I cannot give it much weight because I am unable to make an objective assessment of him as a witness.

1. Belated though they were I would treat your guilty pleas as evidence of remorse.
2. Po'oi has actively pursued courses and programmes while in custody. Tuala has also done so.
3. To an extent, Tuala complied with the conditions of his community correction order.
4. I consider both your prospects of rehabilitation are reasonable.

1. The observations of the Court in Bugmy's case apply to you, Po'oi. There is a reduction in your moral culpability. To an extent, it is offset by the need to specifically deter you from re-offending in the same or a similar manner and to protect the community from you.

1. There has been considerable delay in bringing these proceedings to an end. A small part is due to the actions of Tuala and Po'oi. Most of it is due to the effects of the virus. These matters have weighed on your respective minds and that is a form of punishment in itself.

1. Both of you have experience the worst of prison conditions during the restrictions due to the virus. That has played out in restrictions of personal contact and provision of services to persons in custody. It is a mitigating factor in sentencing.

1. Po'oi is not an Australian citizen. You live here on a visa. The sentence I will impose today will expose you to the possibility of deportation. That has the effect upon you identified in the case of Loftus v R_[2]_ and other cases.
2. The issue of deportation does not arise for you, Tuala, as you are an Australian citizen.

S 16(3C)

1. Po'oi, you were on bail when you committed the offences. Apart from the specific charge of committing an indictable offence on bail, Parliament has added an additional punishment as set out in s 16(3C) of the Sentencing Act:

Every term of imprisonment imposed on a person for an offence committed while on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

1. Provisions like this one lessen the effect of the principle of totality.

1. This order was made on 1 November 2019. It was of 18 months duration. It contained conditions relating to supervision, drug and alcohol abuse and dependency and programmes to reduce re-offending. The community correction order was made as a result of an appeal from the sentence of a magistrate. On the appeal, a judge of this Court sentenced you to a total of 6 months' imprisonment and made the community correction order in relation to the charge of burglary.
2. I have read the report of a Corrections' officer and the police summary of the offence. I note that you did abide by the conditions of the order certainly in its early days. The order effectively came to an end with your arrest but was in trouble when you travelled interstate without permission.
3. I will cancel the order and re-sentence you on the charge. For the charge of contravention, I will sentence you to one month's imprisonment. I will re-sentence you to nine months' imprisonment but declare 6 months as time already served. Those sentences will be served concurrently with each other but served cumulatively on the other sentences. In effect, I am adding 3 months to the period I indicated.

(a) On Charge 1, a charge of kidnapping, I sentence to you to 36 months' imprisonment

(b) On Charge 2, a charge of theft, I sentence you to 18 months' imprisonment. Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 2 years.

(c) On the related summary charge, a charge of failing to stop a vehicle on police direction, I sentence you to 14 days' imprisonment.

(a) Charge 1, a charge of persistent contravention of a family violence intervention order, I sentence you to 6 months' imprisonment. On the charge of contravening the conditions of the community order, as I have said, I sentence you to one month's imprisonment.

1. The base sentence is the sentence on Charge 1 of the first indictment. The sentence on Charge 1 of the second indictment and the sentences for contravening the community correction order and the resentencing on the burglary charge are to be served cumulatively upon the base sentence, with the remaining sentences to be served concurrently. The total effective sentence is 45 months' imprisonment. I will set a non-parole period of 30 months' imprisonment.
2. I declare your 798 days of pre-sentence detention as time served under my sentences today. This figure excludes today.
3. For the sake of clarity, I have declared 6 months of pre-sentence detention as time served on my sentences relating to the community correction order.

(a) On Charge 1, a charge of kidnapping, I sentence you to 30 months' imprisonment.

(b) On Charge 2, a charge of theft, I sentence you to 18 months' imprisonment. Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 2 years.

(c) On the related summary charge 10, a charge of driving while disqualified, I sentence you to one month's imprisonment.

(d) On the related summary charge 22, a charge of committing an indictable offence while on bail, I sentence you to one month's imprisonment.

(a) Charge 1, a charge of possessing MDMA and heroin, I sentence you to 7 days' imprisonment.

1. The sentence on Charge 1 of indictment C2114659.1 is the base sentence. Six months on Charge 2 on that indictment is to be served cumulatively upon the base sentence. The other sentences of imprisonment are to be served concurrently. I will fix a non-parole period of 24 months' imprisonment.
2. I declare the 614 days of your pre-sentence detention as time served under my sentences. That figure excludes today.
3. S 6AAA
4. If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you, Tuala, to a total sentence of 56 months' imprisonment and you, Po'oi, to 45 months' imprisonment.

1. I will make the disposal orders in the terms of the draft.

[1] [2021] VSCA 169

[2] [2019] VSCA 24.