Director of Public Prosecutions v Ihaka
[2023] VCC 638
•17 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00805
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANUERA IHAKA |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 March 2023 |
| DATE OF SENTENCE: | 17 April 2023 |
| CASE MAY BE CITED AS: | DPP v Ihaka |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 638 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Home invasion with a person present – victim unknown to accused – injury caused to victim with use of a chair – injuries caused broken nose, broken cheekbone and loss of consciousness – prior criminal history – subject to community corrections order at the time of offending – sentence of offender to a category 2 offence – high moral culpability – early plea of guilty but not at the earliest opportunity – family support – evidence of remorse – positive prospects of rehabilitation – onerous conditions in custody during Covid-19 pandemic – delay – consideration of deportation
Legislation Cited: Sentencing Act 1991; Migration Act 1958
Cases Cited:Worboyes v R [2021] VSCA 169; Barnard v R [2022] VSCA 42; Surtees v R [2023] VSCA 42; R v Todd [1982] 2 NSWLR 517; Loftus v R [2019] VSCA 24
Sentence:42 months imprisonment. Non-parole period of 28 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Dickens | Office of Public Prosecutions |
| For the Accused | Ms V Drago | Slades & Parsons |
HIS HONOUR:
Introduction
1Manuera Ihaka, I will sentence you to a total effective sentence of 42 months' imprisonment and will set a non-parole period of 28 months' imprisonment. You have been in custody for 612 days. I will declare those days as time served under my sentences today.
2You pleaded guilty to charges of home invasion, intentionally cause injury, two other indictable charges, and a summary offence.
3The circumstances of your offending appear in the document entitled 'Summary of prosecution opening – plea', which is exhibit A. Your counsel agrees with its factual contents.
Circumstances
4At about 6.45 am on 7 August 2021, you and Jayhan Khoshaba arrived at a residence in Prahran, then occupied by two men. Both of you climbed a fence and entered the house through a sliding door at the rear. Your entry was resisted by one of the two occupants, Tyler Elliott. His resistance and your entry is graphically depicted in CCTV footage. After a tug-of-war, both of you entered the residence.
5Mr Khoshaba kicked at Mr Elliot, who retreated. Mr Khoshaba picked up some money dropped by Mr Elliott and demanded more money. Mr Elliott went into the kitchen, obtained a knife and used it to lash out at Mr Khoshaba. Mr Elliott then ran down the hallway past you. You chased after him and struck him to the head with a chair. This assault was such that it caused him a broken nose and broken cheekbone. He also lost consciousness for a short time.
6Mr Khoshaba rummaged through the kitchen. He stole items including an iPhone 7 belonging to the other occupant and Mr Elliot's Apple Notepad Pro. You and Mr Khoshaba left through the rear door and the garage.
7On 13 August 2021, you were arrested after being seen riding a motorcycle . A search of your possessions revealed small quantities of cannabis and methylamphetamine.
8When interviewed, you made 'no comment' to the questions. You did allow the taking of a sample for DNA purposes and the photographing of your tattoos.
9At the time of this offending, you had recently come to know Mr Khoshaba. You did not know beforehand the address where your crimes were committed or the victim, Mr Elliot. The idea of the home invasion was that of Mr Khoshaba.
Victim impact statement
10On 5 September 2022, Mr Elliot made an impact statement. By then, the blow to his head had eliminated his memory of many things, going back eight or nine months before the incident. He could not remember the person he was dating. It is only through psychological intervention he is able to remember the incident itself. Remembering it is now hard because of its 'barbaric nature'.
11He underwent surgery to repair his facial injuries. When he wrote the statement, he said:
“…the use of the left side of my body, which months of painstaking rehabilitation has restored to a marginal improvement.”
12His breathing is still badly affected.
13He now suffers from a post-traumatic stress disorder. He does not leave his home. He resigned his employment and finds he cannot hold onto new jobs. Before the incident, he held the position of a recruitment manager. It was a responsible and busy position. He now self-medicates with alcohol and medicines.
14Again, before the incident, he was an Australian representative in karate, he was physically very active. He has given up his sporting and other physical activities.
15He was forced to move home. This involved both discomfort and cost. He is now isolated from friends and family.
16To Mr Elliot, this incident was a disaster:
“My trajectory and my future that I was working toward has been hijacked; and was stolen from my hands, and traded for a quick buck and a balaclava. And all I have been left with is surmounting debt, mental health complications, physical limitations, and feeling that on most days, that they'd of done me a favour if they finished what they started.”
Criminal history
17You have appeared in a criminal court on seven occasions and have been found guilty or convicted of 32 charges. You have been imprisoned once. On 13 June 2013, you were sentenced in this Court to three years' imprisonment with a non-parole period of 18 months for 10 offences, including three charges of armed robbery. The three armed robberies were committed on the same day and that fact is, perhaps, reflected in the sentence.
18You next court appearance was on 7 January 2019 where you were placed on a community correction order for nine months for drug and traffic offences.
19At the time of this offending, you were the subject of a community correction order. This order was first imposed on 26 July 2020 for 12 months. You contravened that order. In the contravention proceeding, you were fined for the contravention and the order was extended for 12 months.
20Although your criminal history is limited in terms of the appearances in court and the number of charges, it does contain serious offending in 2013. Those offences and the present offences involve violence. At this stage of my consideration, your criminal history raises to prominence the sentencing purposes of specific deterrence and protecting the community from you.
Personal
21You are 34. At the time of your offending you were 31. You were born and raised in the top end of the North Island and the city of Hamilton in New Zealand. You are the youngest of six children. Your parents separated when you were four. Even though young, you remember your father as an abuser of alcohol and violent to the family. Following the separation, you and your siblings lived with your mother. Your mother re-partnered and you had a good relationship with her partner for five years of your childhood. You have never had a significant relationship with your father.
22Your mother and your siblings came to Australia when you were about 17. You remained in New Zealand but, at 19, you came to Melbourne having already obtained a job here. Your mother and some of your siblings were living in Queensland. You maintain contact with them. You also have half-siblings through both parents.
23In Melbourne, you worked for 2 and a half years as a cable joiner. While in that job, you started using methamphetamine.
24You were educated to Year 10 level in Hamilton. After that, you completed an apprenticeship as a cable joiner. You have had continuous employment except where it was interrupted by your drug addiction and imprisonment.
25Gaoled in 2013, you were released in 2015 and then lived with your brother in Melbourne and found employment in your field. In 2018, you took up a better position with an electricity corporation.
26You have had only one significant relationship and that was with your brother's partner. It lasted about four years.
27When these offences occurred, you were unemployed, without stable accommodation and suffering from your addiction.
28At 14, you started using cannabis, which you smoked regularly until 16. From 16, you used other substances recreationally. At 22, you used methylamphetamine. This became a daily habit. It ceased on your imprisonment in 2012. You remained abstinent until 2019.
29In 2019, you returned to using drugs. This was due to several factors, including the diagnosis of your father with cancer and his death shortly afterwards, your loss of employment through the lockdowns of the pandemic and your feelings of shame and guilt over your relationship with your brother's partner. You then used one to two grams of methamphetamine daily along with heroin. The methylamphetamine made you 'feel good' and helped you forget all of your problems. The heroin helped you to sleep. Your drug usage ceased when you were placed into custody in August 2021.
Psychologist
30Aaron Cunningham is a psychologist. At the request of your solicitors, he interviewed you on 6 September 2022 and reported[1]. Dr Cunningham tested you on your cognitive functioning. In three areas, he found between 91 and 97 per cent of persons of your age performed better.
[1] Report dated 8 September 2022.
31Administering a psychometric test to determine your risk of future violent re-offending, Dr Cunningham concluded you were a moderate risk. Presumably, the categories of such risk are low, medium and high.
32Dr Cunningham did not diagnose you as suffering from any recognised psychological disorder.
33To Dr Cunningham, your drug abuse was the main contributor to your offending. You told him you were not thinking straight at the time of your offending because of the drug abuse. You are now upset at your behaviour and choices and are 'really disappointed' in yourself.
34To Dr Cunningham, ending your drug abuse would be the main factor in reducing your risk of re-offending. To that end, he recommends drug and alcohol counselling to better understand what triggers your usage and to learn proper methods of coping with stress and emotions. This counselling would need to be underpinned by stable accommodation and employment. He felt you would benefit from engaging with prosocial peers through a community club or organisation.
35You wish to go to Queensland to be with your mother and siblings.
References
36I have had the benefit of reading your letter and those written by your mother and your friend, Chris Pocklington. I will refer to them later.
Discussion
37As your counsel concedes, the offences charged on the indictment raise the sentencing purposes of general deterrence, specific deterrence, protection of the community from you and denunciation. She submits I should give some prominence to your rehabilitation and less to general and specific deterrence.
38The impediment in acceding to that submission is the 2013 convictions. Little was said about the armed robberies except that they occurred on the same day. The present offending represents the return to serious offending by someone who committed serious offences eight or nine years earlier. There is insufficient in your rehabilitation which would cause me to diminish the importance of those sentencing purposes in sentencing you.
Maximum penalties
39The maximum penalties for the offences are:
(a) home invasion – 25 years' imprisonment.
(b) theft -- 10 years' imprisonment.
(c) intentionally causing injury – 10 years' imprisonment.
(d) possessing a drug of dependence – one year's imprisonment.
(e) unlicensed driving – six months' imprisonment.
40Each of those offences could be penalised by a fine. However, in relation to the offence of home invasion, it is a category 2 offence under the Sentencing Act. This means I must sentence you to imprisonment on the home invasion charge unless you establish an exception. You do not seek to establish an exception. In any event, it would be inappropriate to impose any form of non-custodial sentence for that charge.
Gravity
41Your home invasion may have been unsophisticated but many of those offences are unsophisticated and crude. It was of relatively short duration. It was accompanied by the infliction of significant injury upon Mr Elliot. The severity of the physical injuries he suffered as a result of you hitting him with a chair appear significant; however, his psychological injuries are definitely very significant.
42I would not describe you as a secondary participant in this invasion. It was not your idea but you were an active participant, inflicting significant harm. In terms of objective gravity, I would not class it as low to medium. It is above that range.
43Owing to the harm you caused by striking Mr Elliot with the chair, both physical and psychological, I consider the charge of causing injury as a significant example of the offence. The psychological harm, at least, is very significant. Of course, not all of his psychological harm can be attributed to your striking him, some of it stems from the invasion itself and his reaction to it.
44As I said, the idea of this home invasion was that of your co-offender; however, you were an active participant throughout the process of entry. Your moral culpability is high.
Guilty pleas
45You pleaded guilty to these charges on the day of the committal hearing. This occurred before any prosecution witness gave evidence although, I daresay, some were available to give evidence. It is not a plea at the earliest reasonable opportunity. That would have occurred earlier. It is, however, an early plea in the process which starts with the laying of charges and ends with the verdicts of a jury.
46By pleading guilty to the charges, you have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy. Judging from his impact statement, Mr Elliot would have found giving evidence very distressing. More generally, you have accepted responsibility for your offending.
47At the present time, pleas of guilty deserve a greater discount on sentence by assisting the criminal justice system. Why this is so was explained in the case of Worboyes v R[2], where the Court said:
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[2] [2021] VSCA 169 at [35]
48More recently, the Court has reiterated the importance of guilty pleas[3].
[3] Barnard v R [2022] VSCA 42 and Surtees v R [2023] VSCA 42.
49This Court is striving very hard to overcome the backlog of criminal proceedings built up during the restrictions due to the virus. It has had considerable success; however, the problem remains. Your situation is indicative. In normal times, having a person on remand for about 20 months would have been unusual. It has not been so during the pandemic. The reason behind the views expressed in Worboyes' case still apply.
Youthful offender
50Contrary to your counsel's submission , I do not consider you a relatively youthful offender at the age of 34. You are well past the age where youthfulness is a factor in sentencing.
Prospects of rehabilitation
51Apart from your brother, you have the support of your mother and other siblings. You are skilled and should be able to find employment in your chosen field. Although you completed a period of parole successfully, your relapse into drug usage and this offending is disturbing. Dr Cunningham assesses you as a moderate risk of re-offending violently.
52In your letter, you speak of your remorse for your offending and the harm it caused. The letters of your mother and friend, Chris Pocklington, emphasise your remorse. I accept you are remorseful.
53You are a loved, liked and respected person who has committed serious criminal offences. Your response to stress is to resort to drugs and then, on occasions, to serious offending.
54You have expressed your remorse to the court directly and to others privately. I consider your expressions are genuine and they contain a determination not to return to drug usage and offending. However, I doubt such determination would be enough to prevent serious offending if certain circumstances arose. It would depend on the effectiveness of counselling.
55It is clear you enjoy the support of your mother and your siblings in Queensland. On your release from custody you intend to live in Queensland.
56While in custody, you have started the process of rehabilitation. From your letter, I understand you have undertaken drug and alcohol counselling, a course on managing emotions and mind matters. You exercise and undertake personal training as well as yoga and meditation. I note in 2022, you completed two units of a Certificate III in Cleaning Operations.
57If you were offered appropriate counselling, I expect you to engage with it satisfactorily. I expect you would be prepared to discuss your offending and the background to it, even though you have not been prepared to do so up to now, with your mother.
58My sentences should have a deterrent effect on you. Judging from your mother's letter, you emerged from prison in 2014 with a positive frame of mind. Then certain events occurred, by about 2018 you were re-offending and in 2021, culminating with this offending.
59Overall, I consider your prospects of rehabilitation are positive. I will not go higher for it depends upon your ability to stop using drugs to overcome your feelings of stress when confronted by issues in your life.
COVID-19 conditions
60Generally, a person's time in custody during the restrictions in prisons due to the pandemic has seen restrictions upon movements within prison facilities or lockdown, access to therapeutic programmes and educational courses and visits from family and friends.
61You have been in the Metropolitan Remand Centre and two prisons. In each, you have been subject to lockdowns. At the Metropolitan Remand Centre, you spent 340 days in lockdown, which was confinement to your cell for 24 hours a day. You have experienced the other restrictions. However, at Ravenhall, you worked as a COVID cleaner and induction billet and have engaged in therapeutic courses. At Fulham, you work in textiles and are undertaking a course called 'Coping With Changes'.
62As your mother points out, you did not want your family to visit you and you refused to call them. Your mother speaks to you regularly by phone. Her attempt to visit you was prevented by the restrictions of the pandemic.
Delay
63You were committed for trial on 13 May 2022. Ten days earlier, you had indicated an intention to plead guilty to the charges the subject of indictment. The ten days were spent resolving the summary charges. This plea hearing occurred two and a half years after your offending and about 11 months after your committal. In normal times, this would have been an inordinate amount of time. As I said, it reflects the distortion caused by the effects of the pandemic.
64Your counsel referred to passages from judgments dealing with delay and its effect on sentencing. For you, this delay has caused stress and anxiety. For example, Street CJ in R v Todd[4] observed:
“Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to …the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence.”
[4] [1982] 2 NSWLR 517 at 519.
65This delay is another aspect of the effects of the pandemic upon the criminal justice system, especially as it applies to the courts. The fact of your guilty pleas have already been noted. It is a mitigating factor.
Deportation
66In light of my expected sentences of imprisonment, your counsel expects the cancellation of your visa and the possibility of deportation to New Zealand where you have limited remaining connections. You are a citizen of New Zealand and not Australia. Since your mother and siblings live in Australia and, presumably, only more distant relatives live in New Zealand, this prospect is now distressing for you.
67In Loftus v R[5], the Court examined the operation of the relevant provisions of the Migration Act 1958. In the context of sentencing, the Court said[6]:
“The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.”
[5] [2019] VSCA 24.
[6] At [79].
68It is interesting to note you remained in this country despite the sentences imposed in 2013. Neither you nor your mother speak of that possibility. Your counsel raised it squarely in her submissions. The implications are distressing. The uncertainty following my sentencing today will make your time in custody more difficult. The difficulty is in the form of stress, something about which you are poor in dealing with. This is a factor in sentencing you.
69If you are deported it will be an additional punishment. If deported, you will not be allowed to re-enter Australia. Since your mother, siblings, a niece and nephews live here, this would be a considerable burden. The chance of deportation occurring is a factor in sentencing you. It is difficult to assess this possibility of deportation. All I can say is that it is a possibility and some weight should be given to that possibility and its effect on you in the form of stress.
Sentence
70On Charge 1, a charge of home invasion, I sentence you to 30 months' imprisonment.
71On Charge 2, a charge of theft, I sentence you to four months' imprisonment.
72On Charge 3, a charge of causing injury intentionally. I sentence you to 16 months' imprisonment.
73On Charge 4, a charge of possessing a drug of dependence, I sentence you to 14 days' imprisonment.
74On summary Charge 6, a charge of unlicensed driving, you are convicted and discharged. In other circumstances, this charge merits a fine and some form of interference with your ability to drive a motor vehicle. However, in light of my sentences, no useful purpose will be served by imposing either disposition.
75The sentence on Charge 1 is the base sentence. 12 months of the sentence on Charge 3 will be served cumulatively on the base sentence. The other sentences of imprisonment will be served concurrently with themselves and the other sentences. The total effective sentence is 42 months' imprisonment. I will set a non-parole period of 28 months' imprisonment.
76Since your arrest on 13 August 2021, excluding today, you have been in custody for 612 days. I declare those days as time served under my sentences today.
S 6AAA
77If you had not pleaded guilty to these offences but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 55 months' imprisonment.
Disposal order
78I will make the disposal order in the terms sought.
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