Director of Public Prosecutions v Haapakoski
[2022] VSC 837
•2 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0124
| Director of Public Prosecutions | Crown |
| v | |
| Robert Haapakoski | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 August 2022 |
DATE OF SENTENCE: | 2 September 2022 |
CASE MAY BE CITED AS: | DPP v Haapakoski |
MEDIUM NEUTRAL CITATION: | [2022] VSC 837 |
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CRIMINAL LAW — Sentence — One charge of assist offender where the principal offence is manslaughter — Assisting by storing body in back yard — Early plea of guilty — 50 year old offender — Very limited criminal history of no relevance to sentencing — Cognitive impairment — Long history of drug use — Applicability of principles in R v Verdins (2007) 16 VR 269 — Sentenced to a term of imprisonment combined with a community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke QC | Office of Public Prosecutions |
| For the Accused | Mr R Nathwani | Gallant Law |
HER HONOUR:
Robert Haapakoski, you have pleaded guilty to one charge of assist offender where the principal offence is manslaughter. The maximum penalty for this offence is five years’ imprisonment.
Your offending occurred between 31 May 2021 and 9 July 2021. You provided assistance by allowing Mr Tiumalu to store the body of Mr Brendon Farrell at your premises, knowing or believing Mr Tiumalu had committed the offence of manslaughter. You were 49 years old at the time and lived in Noble Park.
The offending
Mr Brendon Farrell was 33 years old and living in a bungalow at the rear of a property in Doveton. Mr Farrell paid rent to Richard Jackson, who lived in the main residence on the Doveton property. Mr Tiumalu was 30 years old and lived in Hampton Park. There was tension between Mr Farrell and Mr Jackson. This led Mr Jackson to employ the services of Mr Tiumalu in order to evict Mr Farrell from the bungalow. Mr Tiumalu, in turn, engaged Mr Quin Letzing to assist him.
On 31 May 2021, Mr Farrell was at home in the bungalow with his ex‑partner, Kristy Mayes. At around noon, Mr Farrell went to the main house to use the bathroom. In the rear yard he was met by Mr Tiumalu and Mr Letzing. Mr Farrell then entered the main house, followed by those two men.
Once in the living room, Mr Tiumalu ‘snapped’ and assaulted Mr Farrell. Ms Mayes heard Mr Farrell yelling for help, and saw Mr Jackson enter the bungalow. Mr Jackson searched the bungalow for coins and medication, allegedly stolen by Mr Farrell. Meanwhile, in the main house, Mr Letzing became uncomfortable and told Mr Tiumalu he was leaving. Mr Letzing went to the bungalow, where he observed Ms Mayes sitting on a bed and Mr Jackson inside the bungalow. Mr Letzing told Mr Jackson he was leaving. He returned to the main house, collected the keys to Mr Tiumalu’s vehicle and left in that vehicle. Mr Tiumalu then entered the bungalow. He had blood on his boots and told Mr Jackson there was blood everywhere. Ms Mayes was in fear for her own safety. She left the premises and never saw Mr Farrell again.
Later that day, Mr Letzing returned to the Doveton property with Mr Tiumalu’s car. Mr Letzing observed Mr Tiumalu carrying Mr Farrell in his arms and then placing him in the rear footwell of the vehicle. Mr Letzing entered the front passenger seat and Mr Tiumalu drove him home. During the journey, Mr Letzing could hear Mr Farrell snoring and quivering intermittently.
It is important to note that you were not involved at this point, and you were not responsible in any way for the death of Mr Farrell.
Mr Farrell was reported missing on the night of 31 May 2021 by his mother. Mr Jackson told various lies to Mr Farrell’s mother and to police as to when he last saw Mr Farrell. Between 31 May and 4 June 2021, Mr Tiumalu and Mr Letzing exchanged messages. Initially, Mr Tiumalu said, ‘I’ve still got him’. Some days later, Mr Tiumalu again contacted Mr Letzing and stated, ‘The dude is gone’.
Sometime between 31 May and 9 June 2021, your niece, who resided with you in Noble Park, called her mother to say, ‘They are digging a grave in the back yard’. Your niece told her mother it was ‘a big Maori dude’ and you, but you were not the one digging. Your niece’s mother, being your sister, dismissed her daughter’s concerns. Police continued to investigate Mr Farrell’s disappearance, including monitoring various telephone services.
On 9 July 2021, search warrants were executed at Mr Tiumalu’s Hampton Park address and at your Noble Park address. At Mr Tiumalu’s premises, police located bloodstained shoes, a shovel and mobile phones. A video on one of those phones showed Mr Tiumalu digging a hole in your back yard. When police attended your address, you immediately told them you knew why they were there, and that there was something out the back. You took police into the back yard and pointed to a canoe. Police removed a tarpaulin from the canoe and found Mr Farrell’s remains, wrapped in a blue carpet. There was a strong odour consistent with decomposition.
Record of interview
You were arrested and participated in a record of interview. You told police you thought the body had been in the canoe for about a month. A male you know as ‘Terrence’ (Mr Tiumalu) had telephoned one night and asked you to bring him some diesel fuel. You met up in Cranbourne, and Mr Farrell, who was deceased by this point, was in Mr Tiumalu’s car. Some days later, Mr Tiumalu brought the body to your house and put him in the canoe. Mr Tiumalu was digging a hole in your back yard on and off for approximately 10 days, intending to conceal Mr Farrell in that hole. You showed Mr Tiumalu how to dig the hole. Mr Tiumalu’s visits to your house got further apart, and then he stopped coming. You said you had worried for the last month. You described Mr Tiumalu as a ‘big dude’. He did not threaten you, but you were never sure what he was going to do. You described him as ‘scary’ and said he was getting really paranoid. You told police you were sorry it happened, and you probably should have rung them. You told police what you had been told, by Mr Tiumalu, about what happened to Mr Farrell.
This record of interview commenced on 9 July 2021 at approximately 11.00pm. On 10 July, a doctor was called to assess you due to a decline in your mental health. You were deemed unfit for further interview. There are some unusual and, at times, bizarre responses in your record of interview. However, given you were quickly found unfit for interview, I do not place any weight on, or draw any adverse inference from, those responses. I note that in the days following your remand, your mental health deteriorated and you exhibited psychotic symptoms. You were prescribed olanzapine and your symptoms settled with this anti‑psychotic medication.
Co-accused
Mr Tiumalu has been charged with murder and his trial is pending in this Court. Mr Jackson’s matter resolved at committal to a single charge of common law assault. He was dealt with in the Magistrates’ Court and received 227 days’ imprisonment combined with an 18 month community correction order. Mr Letzing was not charged.
Victim impact
A victim impact statement by Mr Farrell’s mother was read by the prosecutor on the plea. She spent five weeks tirelessly searching for her missing son. She desperately hoped he was safe, but feared the worst. When he was finally found, it was not in a way any mother would want. She is devastated that she never got the chance to say a proper goodbye, hold him one last time, or give him the farewell he deserved. She cannot comprehend how anybody could leave someone’s loved one to just decompose, without any dignity or opportunity for his family to say goodbye.
A victim impact statement was also read aloud by Mr Farrell’s sister. At the time her brother went missing, she was a young mother with a baby daughter. For five weeks she constantly worried and tried to find her brother, including reaching out over social media. When she received the news that his body had been found, her heart was crushed. She, too, wanted to hold him and say goodbye, but was advised not to see him in the circumstances. She can still recall the smell at his funeral, despite the chapel staff doing all they could to mask the odour. She continues to miss her brother, struggles with her grief and cannot understand how anyone could treat him with so much disregard and disrespect.
It is clear that both victims have been impacted not only by Mr Farrell’s death, but by the five weeks he was missing and the state his body was in when it was finally found. The storing of Mr Farrell’s body, which you assisted in and which compounded his decomposition, has added to their devastation. The impact on the victims has been taken into account when determining the appropriate sentence.
Personal circumstances
You are 50 years old and have a very minor criminal history, which is of no relevance when sentencing you today. You were born in Melbourne and raised in country Victoria. You have two older sisters and one younger sister. Both you and your siblings were the victims of family violence at the hands of your mother from a young age. You describe your mother as angry, scary and unpredictable. Your father worked and was absent for much of the time. Your parents’ marriage ended when you were about 13 years old. You describe your relationship with your sisters as positive, but your oldest sister left home when she was 13 years old and your second sister lived with her father. You attended primary school and two years of secondary school. You were suspended frequently, and in Year 8 asked to leave school. You also attended an alternative school, but were frequently violent and got into fights. You are unable to write and have very poor literacy skills.
When you were 15 years old, your father sold the family home and you went your separate ways. After leaving school, you worked as a tyre fitter and picking asparagus, and then worked building roads. You were in a de facto relationship from age 19 to around 27, and have two children from that relationship. After the relationship ended, you continued to see your children.
In 2014, you travelled to Cambodia and met and married a Cambodian woman. You both returned to Australia, but apparently she left after four months because you drove too fast and yelled. You are still married, but have no contact with her. Other than this, you have lived alone since your de facto relationship ended.
In 2016, you injured your shoulders and were unable to continue working. Shortly afterwards, in 2017, you became homeless and were not in receipt of any benefits. As a result, you spent 12 months living in your car. In 2018, you were provided with ministry of housing accommodation and were in receipt of NDIS support for individuals with a disability. You were living in this accommodation when you assisted Mr Tiumalu to store Mr Farrell’s body. You have since lost this housing, given the length of time you have been in gaol.
Psychological material
Two reports were tendered on your behalf: a report of Dr Fiona Best, forensic psychiatrist, and a report of Martin Jackson, neuropsychologist. The report of Dr Best focused principally on your fitness to stand trial. According to both reports, you have a longstanding and problematic history of illicit drug use. You commenced using cannabis at the age of 18 and have used approximately two grams of cannabis per day for most of your adult life. You used amphetamines from ages 27 to 40, and at the age of 40, commenced injecting methamphetamine. At the time of your remand, you were using up to two ‘points’ of methamphetamine daily. You have never attended any drug or alcohol counselling, rehabilitation or detoxification programs.
Dr Best noted you were on an NDIS package prior to being remanded and were living in a house for adults with disability. However, she stated the circumstances regarding the nature of your disability are unclear. She was provided with the Justice Health medical notes. They record that in the days following your admission into custody, you were assessed as extremely paranoid and delusional, and were reporting auditory and visual hallucinations. You were highly distressed, psychotic, crying a lot and at risk of self‑harm. Once commenced on olanzapine, your psychotic symptoms settled.
In Dr Best’s opinion, you suffer from cognitive deficits and a possible disability, meaning incarceration is likely to weigh more heavily upon you than it would on an individual without these difficulties. You are also likely to be vulnerable in prison when compared with individuals who are not challenged by disability. On the other hand, you have achieved abstinence from illicit drugs while in custody, which is likely to have significant physical and mental health benefits. Dr Best recommended a neuropsychological assessment.
Mr Jackson assessed you as having a full scale IQ of 70, which is in the borderline range. However, that score alone is not necessarily interpretable, given your very low processing speed score. Your major cognitive impairments are with processing speed, and you also have difficulty learning and remembering unstructured information. A range of cognitive skills were in the borderline range, including most executive functions.
Mr Jackson also diagnosed you with depression, which has arisen as a result of your imprisonment. At the time of the offending, you were also suffering from the acute effects of illicit drug use.
The possible causes of your cognitive impairment are not straightforward. In Mr Jackson’s opinion, it is highly likely you have an acquired brain injury due to long‑term drug use. This acquired brain injury would have existed at the time of your offending. Additionally, your depression is clearly a ‘major current factor’, and it is possible your anti‑psychotic medication is contributing to your attentional and working memory difficulties. Further, at the time of your offending you were impaired by the additional acute effects of intoxication, as you were abusing both cannabis and methamphetamine.
In Mr Jackson’s opinion, you do not have a cognitive or a psychiatric condition that makes you disinhibited or affects your ability to understand the wrongfulness of your actions. Nor do you have a condition that affects your ability to control your emotions or faculties. However, your cognitive impairment does affect your ability to think clearly, and make calm, reasoned decisions and appropriate judgments. At the time of your offending, these abilities would have been further impacted by the acute effects of your ongoing drug use.
Application of Verdins principles[1]
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Your counsel submitted your moral culpability for this offending is reduced, as there is a causal nexus between your cognitive impairment and your offending. Based on the material I have, your ability to exercise appropriate judgment at the time of the offending was impacted not simply because of your cognitive impairment, but also by the acute effects of your illicit drug use and your fear of Mr Tiumalu. It is very difficult to disentangle these factors. In particular, the effects of your drug use were acute, leading to both visual and auditory hallucinations. You told Mr Jackson that you were ‘so out of it’ that you cannot recall being arrested.
In my view, principle one of Verdins has very little, if any, application here. This is not sophisticated offending, and your cognitive impairment did not affect your ability to understand the wrongfulness of your conduct. I accept your cognitive impairment would have reduced your capacity to think calmly and clearly about the situation; however, given the acute effects of your drug use at the time of the offending, it is very difficult to ascertain the impact of your cognitive impairment alone on your ability to make calm, reasoned decisions.
For similar reasons, it is difficult to see why your mental state at the time of the offending moderates the principle of general deterrence. Any incapacity arising from your cognitive impairment was not such that you could not appreciate the gravity of your conduct. Further, the extent of any incapacity was contributed to, and worsened by, the impact of your drug use. In my view, general deterrence remains a significant sentencing factor.
I accept that a sentence of imprisonment would weigh more heavily upon you than a person who does not suffer from a cognitive impairment. You have remained abstinent from illicit drugs while in custody, however you continue to experience cognitive difficulties which make you more vulnerable in a prison setting. Additionally, you have developed severe issues with depression and anxiety since you were remanded, which you attribute to being in gaol with ‘monsters’ and feeling very scared.
Other matters
You pleaded guilty to this offence at the earliest reasonable opportunity, and this entitles you to a significant sentencing discount. Your plea of guilty has facilitated the course of justice, shows an acceptance of responsibility by you for your crime, and is evidence of some remorse. It has saved the community the time and expense of a criminal trial and spared Mr Farrell’s family the ordeal of a criminal trial.
Your plea of guilty was entered at a time when court listings remain significantly impacted due to the COVID‑19 pandemic. As recently stated by the Court of Appeal, the additional discount which attaches to a guilty plea in these circumstances must be consistently applied, ‘modestly but perceptibly’.[2]
[2]Biba v The Queen [2022] VSCA 168, [26], referring to Worboyes v The Queen [2021] VSCA 169.
There is scant evidence of remorse in the report of Mr Jackson, limited to you being ‘sorry for being in this situation’. Dr Best did not comment on the offending itself, as at that stage the matter had not resolved. It follows there is no evidence of remorse found in her report.
Your counsel submitted your extensive admissions to police should be treated as evidence of remorse. I accept your admissions were significant. For example, you told police how long Mr Farrell’s body had been at your premises, and provided information about what Mr Tiumalu had told you about the offending and why it occurred. I accept overall that you do have some remorse for your conduct. Given your cognitive impairment and poor language skills, your ability to express remorse is likely blunted.
You are in gaol for the first time and were remanded during the COVID‑19 pandemic. The pandemic has made conditions in custody more difficult and onerous. Prisoners are increasingly locked down. Personal visits have been suspended at times, and access to courses and programs has been reduced or halted altogether. You have been locked down for approximately two months and in April this year, you spent one month in the hospital wing, as you required a colostomy and skin cancer checks. You have had contact with your children via telephone and one Skype call. You continue to take olanzapine, but your dosage has reduced to five milligrams per day and there has been no return of psychotic symptoms.
Despite the restrictions and your remand status, you have engaged with what you can whilst in gaol, including undertaking a ‘White Card’ course. Additionally, you are employed as a kitchen billet and work fitting nuts and bolts to flyscreens. I accept you have done well in prison and would like to continue working when released. In Mr Jackson’s opinion, your cognitive profile is not associated with a high risk of re‑offending, and you have reached the age of 50 with no significant history of past offending. Within the limits of your impairments, you have the ability to learn new skills. The factor which casts a shadow over your prospects of rehabilitation is your past extensive history of illicit drug use. In Mr Jackson’s view, there is a relatively high likelihood you will resume drug use if released into the community without support. Corrections, however, assessed you as being high risk of re‑offending, noting you have minimal insight into your offending and a long standing drug abuse problem. Of course, it was your drug use which put you in contact with Mr Tiumalu, and in that way contributed to this offending. Overall, I regard your prospects of rehabilitation as reasonably good if you engage with supports and do not return to illicit drug abuse.
Prison has proved significantly punitive in your case. Following your arrest, you became clearly psychotic and panicky in custody. You are no longer psychotic, but continue to find prison a very scary place. I accept that your time in custody has likely deterred you from further offending. However, specific deterrence remains a relevant sentencing principle which is best achieved by structuring a sentence which sees you supervised when released.
Seriousness of offending
Assisting an offender to conceal a body is a serious example of this offence. Your assistance was limited to making a canoe available in your back yard, allowing Mr Farrell’s body to be successfully concealed for about one month. You did not touch or interfere with the body. Your offending was of lengthy duration, which increases the objective gravity of your crime.
You hid the deceased for about one month, and this contributed significantly to the distress of Mr Farrell’s family in two key ways. First, they spent that time trying to find him, hoping for the best but fearing the worst. Secondly, when he was finally found, the decomposed state of his body meant they had lost their chance to see him, hold him and say goodbye. Law enforcement also expended considerable resources searching for Mr Farrell.
I accept you were vulnerable to Mr Tiumalu’s request, given your low cognitive functioning, drug use and fear. Mr Tiumalu is a physically big man, and you knew he was someone who enforced drug debts through violence. I accept you were scared to refuse him, or confront Mr Tiumalu about the ongoing situation. This in no way excuses what you did, but your counsel’s description of you as ‘subordinate in the relationship’ is fair.
General deterrence is a significant sentencing factor when dealing with this crime, as are just punishment and denunciation. Without your assistance, Mr Tiumalu may not have been able to hide his crime for as long as he did. Your conduct reduced the chance of Mr Farrell being found quickly, or at all. Persons who assist offenders in this way should expect to receive stern punishment and terms of imprisonment.
Your counsel submitted you could be dealt with by way of a ‘straight sentence’ which sees you immediately released, given the time you have already served. Alternatively, he submitted a combination sentence which sees you released forthwith on a community correction order was the appropriate sentence. The prosecution made no specific submission as to penalty, noting the maximum penalty for the offence is five years’ imprisonment. Both counsel provided a number of decisions where offenders had assisted in the concealment, movement or destruction of a body, and received either a community correction order, combination sentence, or a modest term of imprisonment.[3] These decisions were of assistance, although ultimately each case turns on its own unique facts.
[3]Counsel referred to R v Robertson [2013] VSC 625; R v Bacak [2015] VSC 474; R v Girgis [2016] VSC 43; R v Considine [2019] VSC 386; R v Lee & Kong [2020] VSC 383; R v Dunn [2020] VSC 708.
I had you assessed for a community correction order and you were found suitable for such an order. As already mentioned, you were assessed as being a high risk of general re-offending. Positively, you have strong pro‑social support from your family, other than your mother. You have stable accommodation available in Morwell with your sister, and you will seek to be placed on the disability support pension and supported through the NDIS. Corrections recommend a number of conditions, including drug treatment and supervision. You are prepared to consent to an order.
You have served 420 days by way of pre‑sentence detention, not including today. In all the circumstances, I agree with your counsel that a sentence that does not involve any further gaol time is appropriate in your case. I have come to the view that a combination of imprisonment and a short community correction order is the proper sentence, particularly given your long standing history of drug use, cognitive impairment and risk of re‑offending.
On the charge of assist offender, you are convicted and sentenced to 420 days’ imprisonment together with a nine month community correction order. The community correction order commences immediately upon your release from custody.
I declare you have served 420 days by way of pre‑sentence detention, and such period is reckoned as time already served under this sentence. This means you will be released from custody forthwith and commence your community correction order.
Together with the mandatory conditions that I will not read out, I impose the following conditions:
·You are to be under the supervision of Corrections for the duration of the order;
·You are to undergo drug treatment and rehabilitation as directed;
·You are to undergo mental health treatment and rehabilitation as directed; and
·You are to undergo any offence‑specific program designed to reduce reoffending, as directed.
I confirm you have consented to the order.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) , I declare that but for your plea of guilty, the sentence I would have imposed is 22 months’ imprisonment, and I would have fixed a non‑parole period of 16 months’ imprisonment.
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