R v Oeti [2018] ACTSC 229

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - multiple counts of aggravated robbery with various offensive weapons, namely, a replica firearm, a baseball bat, a machete and a knife - limited criminal history when offences committed - guilty pleas - totality of sentences - concurrency - Queensland sentence treated as if it were a head sentence with a non-parole period rather than a head sentence with a suspended sentence - punishment - general deterrence - specific deterrence - denunciation - custodial sentence

1. Mr Sonny Riener Oeti has pleaded guilty to six charges of aggravated robbery. Aggravated robbery carries a maximum penalty of 25 years imprisonment, a fine of $375,000 or both: Criminal Code 2002 (ACT), 310(b). The offences are as follows:

(a) CC2013/11769, an offence committed on 26 December 2013 at the Foodworks Supermarket in Pearce;

(b) CC2017/9640, an offence committed on 13 April 2014 at the Swinger Hill IGA Supermarket;

(c) CC2017/9641, an offence committed on 18 June 2014 at the Chapman IGA Supermarket;

(d) CC2017/9642, an offence committed on 7 July 2014 at the Hello Sexy shop in Fyshwick;

(e) CC2014/10212, an offence committed on 10 July 2014 at the Waramanga General Store; and

(f) CC2014/10213, an offence committed on 13 July 2014 at Macka's Griffith Newsagency.

2. The facts were agreed and are summarised as follows.

3. On 26 December 2013, at about 1:40pm, the offender entered the Foodworks Supermarket at the Pearce Shopping Centre and held up the cash register operator by showing him what appeared to be a firearm tucked into his pants. He stole $429 and three packets of Marlboro Red cigarettes. Later that day, the offender admitted to committing the offence when interviewed by police. He spent until 17 January 2014 in custody and was then released on bail.

4. While on bail, on 13 April 2014, the offender held up the Swinger Hill IGA Supermarket. He was wearing a hooded jumper, black gloves and a dark coloured "skull" mask. He carried an aluminium baseball bat. He threatened the employee behind the counter and stole $350.

5. On 18 June 2014, he entered the Chapman IGA Supermarket wearing a hooded skistyle jacket and his face covered by a scarf. He was armed with a machete. He demanded money and threatened staff with the machete. He stole $391.45.

6. On 7 July 2014, he entered the Hello Sexy shop in Fyshwick, his face was covered with a black balaclava. He was armed with a machete. He demanded money and stole $1951.75. During the course of the robbery, he was behind the counter and waved the machete towards the shop employee in a very threatening manner.

7. On 10 July 2014, at about 5.30pm in the afternoon, he entered the Waramanga General Store which also has a post office. He wore a hooded jumper, baseball cap, sunglasses and covered his face with a scarf. He was armed with a machete. He demanded money from the person behind the counter and swung the machete at him. The offender stole $2810.

8. On 13 July 2014, at 11:40am, he entered Macka's Griffith Newsagency wearing a hooded jumper, gloves and a bandanna covering his face. A father and daughter were working behind the counter and the offender approached the daughter and grabbed her by her scarf. He pointed the knife at her throat and made repeated demands for money. He stole $1500. The next day (14 July 2014) he purchased an airline ticket and travelled to Queensland.

9. He failed to appear in the Australian Capital Territory (ACT) Supreme Court on 1 September 2014 and a warrant was issued for his arrest.

10. He was arrested in Queensland for separate offences on 11 March 2015 and was sentenced in 2016 to five years imprisonment, suspended after two and a half years. The portion of his sentence that was not suspended expired on 10 September 2017. On 8 September 2017, an extradition order was made permitting him to be extradited to the ACT. He appeared in the ACT Magistrates Court on 11 September 2017. He pleaded not guilty to the charges before the Court and the matters were committed for trial.

11. The offender's visa was cancelled on 30 June 2017.

12. Videos of the first five robberies were tendered and played during the sentence hearing.

13. Victim impact statements were prepared by the father and daughter who were working in the Macka's Griffith Newsagency. They were read to the Court and tendered. The daughter was 15 years old when the incident occurred. It was clearly very traumatic as it involved the offender holding a knife to her neck. She has suffered ongoing mental health difficulties as a result of the incident. She attributes multiple panic attacks to this incident. For two years after the incident she had difficulty using scarfs. She also has ongoing adverse reactions to seeing knives pointed in her direction. She also perceives that only her father, who experienced the incident, understands what she has suffered.

14. The statement from her father also indicates ongoing trauma. He responds adversely to images that remind him of the incident. He feels guilt at not being able to protect his daughter. He sold the business that he had operated and attributed that to his reluctance to operate it when being targeted for robberies. It took him nine months to get a permanent job elsewhere. The statement refers to the difficulties that his and his daughter's trauma has created for his wife and son.

15. Although the nature of the weapon, the conduct involved and the amount stolen varies as between offences, each of them is a very serious offence. Those involving the machete and, in particular, the threat to the owner's daughter during the robbery of Macka's Griffith Newsagency are in the upper end of the mid range of objective seriousness. The offence with the replica firearm is in the mid range of objective seriousness. Those involving the baseball bat were in the low to mid range of objective seriousness for this offence.

16. The offender is 31 years old. He was born in Samoa and immigrated to Australia at the age of about 17 in 2004 with his family. He describes a strict upbringing in Samoa and being in a household where his parents often fought. He maintains good relationships with his parents and his sister.

17. He has four children with two different women. He was living with his wife and three children immediately prior to the offending conduct. The first offence occurred a few days after his wife had left him and moved to Queensland with the children. At that stage, he was determined to do something dramatic with a view to making her feel sorry for him. His thinking was clearly somewhat distorted. His wife has returned to New Zealand, leaving the children in Brisbane. His parents have moved to Brisbane to look after them. Two of them are disabled, being blind.

18. His Australian visa was cancelled on 30 June 2017. Australian Border Force staff have indicated that he will be subject to immigration detention upon release from the Alexander Maconochie Centre (AMC). It is not clear what arrangements will be made in relation to his children if he is deported to New Zealand.

19. The offender completed year 10 in Samoa. He has worked in various positions including as a bus driver, construction worker and warehouse worker. He was unemployed at the time of committing the offences.

20. He told the author of the pre-sentence report that he commenced using illicit substances from the age of 19 and started using methamphetamine at the age of 20 (in 2007). In oral evidence, he said that his methamphetamine use had commenced in 2010 which would be when he was 23. Nothing turns on this difference. His methamphetamine use increased in 2013. He told the author of the pre-sentence report that he was using 2g per week. In oral evidence, he said that he was using up to a gram per day at his peak. This continued until he was imprisoned in Queensland in 2014.

21. He attributed his offending behaviour to his drug use at the time. He has not used illicit substances since then. He commenced the SMART (Self Management and Recovery Training) Recovery program in the AMC in May 2018. He is on the waiting list for the Solaris program.

22. The offender has a criminal history in the ACT, New South Wales and Queensland.

23. He has convictions in Queensland for dishonestly obtaining property and burglary committed in 2010 for which he was fined. Prior to these two offences, he had been dealt with by way of non-conviction orders.

24. He then has string of robbery, assault and attempted robbery offences committed in the first half of 2015 for which he was given a sentence of five years imprisonment, suspended after two and half years. He appears to have been extended some leniency in the sentencing by reason of the making of sentences for two separate series of offences wholly concurrent with each other.

25. In New South Wales, he has convictions in 2014 related to drugs as well as a driving offence.

26. In the ACT, he has convictions for offences involving possession of methylamphetamine and drug driving which were committed in 2014.

27. The offender tendered five letters relating to his post offence conduct.

28. A chaplain at the AMC provided a reference attesting to his "extraordinary gifts of leadership". It indicated that he is the leader of a small Christian fellowship of 10-15 men to whom he encourages to ignore gaol politics and to care for vulnerable detainees. It indicates that he has also very positively engaged with a program run with the gaol called "Seasons for Growth" which deals with change, loss and grief. The chaplain attests to his high level of self-knowledge and understanding.

29. Another letter from staff at the AMC attests to his "outstanding participation" in the first celebration of Waitangi Day at the AMC in 2018. It attests to his strong leadership and mentoring within the Polynesian culture group which has assisted with reducing conflict between other participants who have associations with differing outlaw motorcycle gangs.

30. The third letter is from a chaplain at a Queensland prison which indicates that the offender had developed a positive relationship with that person.

31. The fourth letter is a letter written by the same chaplain to the Minister for Immigration and Border Protection seeking further consideration of a deportation order made in relation to the offender. The letter attests to the offender's leadership within the prison and how he has helped other prisoners accept their time in prison with a peaceful attitude.

32. The fifth letter is from the offender's father and mother, although it appears to have been written by his father. That attests to the remorse that the offender has expressed for what he has done as well as the family support that he could expect if he was released from custody.

33. A variety of other certificates were tendered showing that the offender has taken significant opportunities to participate and obtain qualifications from educational programs available within the prisons where he has been incarcerated.

34. The offender gave oral evidence about his family background and what he has done in prison. I accept his evidence, which is consistent with the other material available to me, that he has substantially reformed and performs a positive leadership role within the prison environment.

35. The pleas of guilty occurred after each of his matters was committed for trial to the Supreme Court. A change of solicitors led him to plead guilty. Although the plea was not at an early stage and the Crown cases were strong, it is appropriate that he receive a reduction in his sentence of 15 per cent when compared with the sentence that I would have otherwise imposed. His pleas of guilty have very significant utilitarian value having regard to the fact that they avoid the need to re-traumatise the victims of the offences through the need to give evidence. That is obviously particularly the case in relation to the victims of the last offence.

36. The offender has spent significant periods in custody attributable to these offences. He spent 23 days in custody after his arrest in December 2013 (26 December 2013 to 17 January 2014). He then spent another 33 days in jail as a consequence of a breach of bail conditions (17 April 2014 to19 May 2014). Following his return to the ACT on 11 September 2017, he has spent 329 days in custody. Roughly, three months of that period (8 September 2017 to 7 December 2017) was a period served for the offence of failing to appear after a bail undertaking, which occurred after he fled to Queensland in 2014. If any sentence is made fully concurrent with this three month period, then the appropriate backdate date would be 17 July 2017.

37. As I have indicated above, the sentence must reflect the variation in the circumstances, particularly the conduct during the course of the robbery, the nature of the offensive weapon and how it was used, as well as the amount of money stolen. The robberies were planned, although the lack of sophistication in the robberies meant that only limited planning was necessary. They were associated with the offender's ongoing use of methamphetamine and the need to fund that habit. It must be borne in mind that these offences took place prior to the Queensland offences, at a time when the offender had a limited criminal history, although obviously a very significant drug problem.

38. I take into account the fact that whilst in custody the offender appears to have turned his life around and performed a very positive leadership role within the prisons where he has been incarcerated. He is also somebody who has significant family support. In those circumstances, specific deterrence appears to be a lesser consideration than it might otherwise have been. Punishment, deterrence and denunciation remain, however, very significant sentencing considerations.

39. I take into account the likelihood of his deportation. There is uncertainty as to the consequences that this will have for his children and whether or not his parents will also return to New Zealand.

40. I was referred to a variety of sentences for aggravated robbery which indicates a range of sentences depending upon the precise circumstances, in particular the level of threat imposed upon the victim. All of the sentences recognise the gravity of the offending conduct and the need for significant general deterrence.

41. As I have indicated, I will reduce each sentence by approximately 15 per cent to take into account the offender's pleas of guilty.

42. An issue relating to how I should consider the Queensland sentence when considering issues of totality and concurrency arose during the delivery of these reasons on 6 August 2018. At that time, I indicated to the parties the approach I intended to take and noted that I would make final orders later in the week, namely, on 9 August 2018, in case there was an issue of principle that the parties wished to raise.

43. That approach involved noting the sentences I proposed to impose and how I intended to deal with issues of concurrency, backdate dates and totality. The approach I intended to adopt would treat the Queensland sentence in the same manner as I would have treated it if it was a head sentence with a non-parole period as opposed to a head sentence, suspended after a period of two and a half years. I noted that I proposed to adopt that approach because, as a matter of substance, it appeared to me that what had occurred in Queensland was the equivalent of a head sentence with a nonparole period. I then noted that I proposed to impose the following sentences.

44. In relation to the offence committed at the Foodworks Supermarket in Pearce, I will impose a sentence of 26 months imprisonment reduced from 30 months on account of the plea of guilty.

45. In relation to the Swinger Hill IGA robbery, I will impose a sentence of 26 months imprisonment reduced from 30 months on account of the plea of guilty.

46. In relation to the Chapman IGA robbery, I will impose a sentence of 26 months imprisonment reduced from 30 months on account of the plea of guilty.

47. In relation to the Hello Sexy robbery, I will impose a sentence of 31 months imprisonment reduced from 36 months on account of the plea of guilty.

48. In relation to the Waramanga General Store robbery, I will impose a sentence of 31 months imprisonment reduced from 36 months on account of the plea of guilty.

49. In relation to Macka's Griffith Newsagency robbery, I will impose a sentence of 41 imprisonment reduced from four years on account of the plea of guilty.

50. I propose to introduce a significant element of concurrency in the sentences having regard to the overall totality of those sentences. The result of that concurrency will give a head sentence of six years and four months. The sentences will be backdated so as to take into account the period of pre-sentence custody. In backdating, I consider that it is only appropriate that one month of the sentence for failure to appear be treated as effectively concurrent and, therefore, only one month of the total sentence for that offence will be included in the period to be backdated. This means that instead of being 17 July 2017, the backdate date is 17 September 2017. The sentence will expire on 16 January 2024. Given that this means that the sentence commences only one week after the expiry of the period of imprisonment imposed in relation to the Queensland offences that was required to be served prior to their suspension, there is a significant degree of concurrency between the sentences I now impose and the Queensland sentences. When considering the combination with the Queensland sentence, the sentence that I impose would give a total head sentence from both jurisdictions of just under nine years.

51. Having regard to the rehabilitation of the offender and the likelihood of his deportation, a shorter than usual non-parole period of 38 months will be set. The non-parole period will commence on 17 September 2017 and end on 16 November 2020. When aggregated with the Queensland sentences, this gives an aggregate period required to be served in full-time custody of five years and seven months which appears to me to be appropriate.

52. Having indicated the way in which I proposed to deal with the matter and having regard to the issue that was identified, I adjourned the proceedings until 9 August 2018 so as to permit final orders to be made in light of any additional submissions from the parties.

53. On 9 August 2018, the parties indicated they did not wish to be make any further submissions in relation to the issue identified at [42]-[51] above.

54. Therefore, the order that I made on 9 August 2018 was as follows:

1. The offender is convicted in relation to each offence and the following sentences are imposed:

(a) On charge CC2013/11769 (Foodworks Supermarket in Pearce), 26 months imprisonment commencing on 17 September 2017 and ending on 16 November 2019.

(b) On charge CC2017/9640 (Swinger Hill IGA Supermarket), 26 months imprisonment commencing on 17 May 2018 and ending on 16 July 2020.

(c) On charge CC2017/9641 (Chapman IGA Supermarket), 26 months imprisonment commencing on 17 January 2019 and ending on 16 March 2021.

(d) On charge CC2017/9642 (Hello Sexy), 31 months imprisonment commencing on 17 June 2019 and ending on 16 January 2022.

(e) On charge CC2014/10212 (Waramanga General Store), 31 months imprisonment commencing on 17 April 2020 ending on 16 November 2022

(f) On charge CC2014/10213 (Macka's Griffith Newsagency), 41 months imprisonment commencing on 17 August 2020 ending on 16 January 2024.

(g) The non-parole period commences on 17 September 2017 and ends on 16 November 2020.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.