Director of Public Prosecutions v Ioane-Kaitara

[2024] VCC 284

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01363

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOKERUA IOANE-KAITARA

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF SENTENCE:	14 March 2024
CASE MAY BE CITED AS:	DPP V IOANE-KAITARA
MEDIUM NEUTRAL CITATION:	[2024] VCC 284

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Intentionally Damage Property; Aggravated Burglary – Person Present; Common Law Assault; Unlawful Assault

Legislation Cited:      Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)

Cases Cited:

Sentence:                  Summary Offences: Convicted and placed on 6 month adjourned undertaking to be of good behaviour – Indictable Offences: Aggregate sentence imposed and convicted and placed on a 20 month Community Corrections Order – S6AA: But for plea of guilt, TES of 18 months with non-parole period of 10 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Chester Metcalfe & Co

HER HONOUR:

1Tokerua Ioane-Kaitara, you have pleaded guilty on indictment to charges of intentionally damage property, aggravated burglary and two charges of common law assault.

2You have also entered guilty pleas to related summary offences of unlawful assault.

3In sentencing you for these crimes, I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:

·     Intentionally damage property – 10 years' imprisonment;

·     Aggravated burglary (person present) – 25 years' imprisonment;

·     Common Law assault – 5 years' imprisonment;

·     Unlawful assault – 3 months' imprisonment.

4These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

5The circumstances of your offending are set out in a document entitled, 'Summary of Prosecution Opening for Sentence Indication', dated 5 February 2024. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

6I will not repeat the entire summary as it was just read to the court and is a matter of record, but in brief terms your offending that gives rise to these charges occurred on 11 June 2021. Your mother, charged as Kelly Deans but also known as Kinta Zwar-Manu, was also charged with offences arising from the same event.  I will return to the relevance of this at a later stage.

7

At the time of the offending, you had been residing with your mother at

Thompson Street, Clayton for approximately 18 months. The victims of your offending lived next door to your residence and located at the rear of a sub divided block. The four victims were Maurice O’Reilly aged 78 years, Maria O’Reilly aged 71 years, Kathleen O’Reilly aged 48 years, and Anthony Fara, also referred to as Anthony O'Reilly. Anthony is Kathleen O’Reilly’s son, and was 23 years of age, and suffered from ADHD and autism.

The Offending

8On Friday 11 June 2021, at approximately 10 pm, the victims were in their address with Mr O’Reilly’s sister in law, Klethilda Shaw.

9Mr O’Reilly walked Ms Shaw out the front of the block to say goodbye to her. As she was pulling out of the driveway, you and your mother climbed onto the dividing fence between the properties and started abusing Mr O'Reilly. You mother kept yelling, 'I want my fucking phone back'. Mr O'Reilly responded, 'I don’t have your phone', and walked back into his house. You and your mother also claimed that Mr Fara had killed your dog.

10This scared Mrs Shaw into returning into the house with Mr O’Reilly and they called Triple 0.

11At approximately 10:20 pm, Senior Constable Mallory Inger and Constable Cian Hutter responded to the call. On arrival, they observed that you and your mother were verbally abusing the O'Reilly family over the fence.

12You mother presented as aggressive, hostile and alcohol affected and continued to state that Mr Fara had killed her dog and stolen her phone.

13Police told her not to engage any further with the O'Reilly family and returned to Oakleigh police station. Constable Hutter proceeded to make a Personal Safety Intervention Order application and contacted Mr O'Reilly advising him of such.

14At approximately 11:05 pm, you and your mother presented at the gate of the O'Reilly's driveway rattling the gate and yelling out for Mr Fara. You both then approached the house and both began to smash the pot plants on the front porch.

15You then picked up an ornament from the front porch and threw it at the front lounge room window, causing it to break. At this time, Mr O'Reilly, Maria O'Reilly and Kathleen O'Reilly were present inside the lounge room.

16At the same time your mother was at the front door trying to access the house, damaging the front security door grille in the process.

17You began yelling, 'Anthony where are you?', ranting about your dog being killed. You then stuck your upper body through the window, picked up a marble coffee table and threw it, cutting your head which then bled significantly.

18Kathleen O'Reilly left the front lounge room and took Mr Fara into one of the rear rooms. Mr Fara was highly distressed.

19You began to make threats to Mr O'Reilly saying, 'If you call the cops, I'll fucking kill all of you', and spat at him with the saliva landing on Mr O'Reilly's face.

20You mother then approached the front broken window and stood next to you and said to the victims, 'We'll kill the whole fucking lot of you!' and, 'We'll kill you, I know you called the cops'.

21By this stage, the lounge room curtain had been ripped from the rail and both you and your mother were leaning through the smashed front window, continuing to make threats. Mr O'Reilly, fearing for his family's safety, called Triple 0.

22These facts form the basis of Charge 1 - intentionally damage property particularised as a window, coffee table and curtains, Charge 2 - aggravated burglary, Charges 3 and 4, the common law assault of Maurice and Maria O’Reilly and the two related summary offences encompassing the unlawful assault of both Kathleen O'Reilly and Anthony Fara.

Arrest and Record of Interview

23At approximately 11:16 pm, Senior Constable Inger and Constable Hutter re‑attended the address. They observed extensive damage to the front of the property, including the broken pot plants and smashed front windows. Police observed you and your mother standing next to each other, clearly leaning through the smashed front window, reaching in with your arms and still yelling at the victims.

24Police demanded that you and your mother step away from the window. Neither of you complied. Additional police were requested.  You were aggressive and had to be subdued by OC spray before being subsequently arrested.

25You were taken to hospital so that you could be treated for the glass injury to your head. You were interviewed by police after discharge from hospital and answered ‘no comment’ to all questions asked of you, as is your right.

Property Damage

26Allianz Insurance sent an assessor to the O'Reilly residence. The cost of repair and replacement was quoted as $23,704.74.

Offence gravity and victim impact

27The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crimes on them.

28Maurice O'Reilly, Maria O'Reilly and Kathleen O'Reilly have each provided a victim impact statement and I have had recourse to the admissible portions or contents of those documents. In effect you and your mother terrified this family on 11 June 2021

29Maurice O'Reilly speaks of experiencing chest pain directly after the attack and needing to attend hospital. Since the attack he has had trouble sleeping and is therefore tired the following day, and this affects his relationship with others. Loud noises make him edgy, and his general feeling of well-being and enjoyment of life has been diminished. He felt helpless being unable to protect his other family members. He lives in constant fear.

30Maria O'Reilly was devastated by the damage caused to their home, particularly since they had only recently spent money upgrading the premises. With COVID restrictions and waiting for the insurance company to respond, they spent a lengthy period waiting for the damage you and your mother caused to be corrected. This increased her stress and anxiety. She found the attack itself terrifying.

31Kathleen O'Reilly found herself in a particularly difficult position. She was trying to care for her terrified son, Anthony, in the back room whilst at the same time being naturally concerned for her elderly parents in the front of the house and being subject to attack. She felt powerless in the circumstances. After the attack she found herself depressed and crying and had difficulty returning to work for a lengthy period of time.

32The victim impact statements were read to the court at the time of your mother's hearing and were tendered today, and you should have some awareness of the impacts of your offending on the O'Reilly family.

33This is obviously serious offending.

34Whilst you are not said to be aware of Mr Fara's disabilities, his family were aware and this added to their distress. Mr Fara was clearly terrified. You would have had some awareness that two of the O'Reilly’s were elderly given they had been your next door neighbours for some 18 months. 

35You and your mother had created a nuisance of yourselves over the day in question and had been warned off by Police, yet you returned and persisted.

36You attended their premises in company late in the evening in an extremely aggressive fashion, which included threats to kill. Whilst those threats are not the subject of charge, they are part and parcel of your violent presentation at the O'Reilly premises and the assault-based charges.  

37Your attendance at the premises was recorded in CCTV and made available to the court. Your behaviour was irrational and appalling.

38Fortunately, your physical entry to the premises was limited to your upper body and there were no actual injuries caused to any of your victims – which of course would have been the subject of separate charge had that occurred. Whatever dispute you say you had with your neighbours it appears to be entirely ill conceived and your actions on 11 June 2021 were not the way to resolve them.  This was a targeted and protracted attack on the home in which the O'Reilly's had resided for some 14 years and they were entitled to feel safe. You have destroyed the sanctity of their domain and caused extensive damage.

39Principles of general deterrence, specific deterrence, denunciation and protection of the community loom large in the sentencing task.

Plea of guilty

40The Sentencing Act 1991 obliges me to take into account the stage at which you entered your guilty pleas.

41Yours is a late guilty plea.

42You were arrested and charged in June 2021.

43You were committed for trial on 1 August 2022. From that point all indications were that you were pursuing a trial, as is also your right.

44You attended a case management hearing on 19 October 2022, but the matter did not resolve.

45You did continue to follow and attend your mother’s hearings in this court relating to the same event and charges.

46Kelly Deans, as she was charged, entered her plea of guilty in August of 2023 and was sentenced on 11 December 2023. Your mother was placed on a community corrections order for two years with treatment conditions .

47After her sentencing, you sought a sentence indication. The matter was listed for sentence indication on 13 February 2024. The Crown were conceding that a community corrections order would reflect all relevant sentencing considerations.

48The sentence indication given was that, should you plead guilty, you would be sentenced to a community corrections order. You accepted that indication and the matter was adjourned for plea hearing and for you to undertake an assessment by the Office of Corrections as to your suitability for a Community Corrections order.

49Whilst late, you plea has still facilitated the course of justice in saving the court the time and expense of contested proceedings and witnesses the need to attend court and relive traumatic events close to three years later.

50Whilst remorse is harder to discern you have taken responsibility for your actions on 11 June 2021.

51These factors will be taken into account in your favour.

Personal circumstances

52You are presently aged 21 years but were 19 at the time of your offending.

53Your parents separated when you were very young and you initially lived with your father. Your father was described as violent and employed parenting practices which involved restricting food.  At aged eight and a half you escaped to live with your mother.

54Your mother was described by your counsel as a damaged personality which is apparent to me from sentencing her for her role in the offending of 11 June 2021.

55You were regularly exposed as a child to your mother’s drug abuse, and violent relationships. She moved often and you with her. You were never able to get solid ground, form lasting or supportive relationships and your schooling was interrupted and disrupted. Your left school in Year 8 and your basic literacy has been comprised.

56I am told that you have a large number of siblings, none of whom you have an ongoing relationship with. Your closest relationship is with your mother for whom, in more recent times, you had taken on the role as a carer given she presents with a range of illnesses. You have also come to realise that you may benefit from some distance between you and your mother. 

57I do take into account your very difficult formative years as shaping the young man you are today and as a means to guide where you may need future assistance in order to protect the community.

Prospects for rehabilitation

58You have no prior criminal convictions.

59I am told that there have been no allegations of further offending in the time between 11 June 2021 and today, 14 March 2024.  This fact in itself augurs well for your future given the difficulties you faced in your upbringing.

60You have abided by bail conditions for an extended period of time.

61As previously indicated, you were 19 years of age at the time the offending. I accept it occurred as part and parcel of your relationship with your mother.  This appears to be a somewhat unhealthy relationship perhaps highlighted by your actions on 11 June 2021.

62As a direct consequence for those actions, you spent one night in custody and I accept that there is likely to be a degree of sanction and deterrence from this experience.

63You were obviously a young offender in June of 2021 and the principles in relation to young offenders have some application to your sentencing. There is a basis overall to emphasis rehabilitation in your sentencing.

64You obviously have a limited education and no real work history.

65

A neuropsychological assessment dated 22 November 2022 and authored by

Dr Daniel Uiterwijk indicates that, at that time, you had significant limitations in problem solving, reasoning and comprehension which would impact on your day-to-day functioning and decision-making. This, in his opinion, leaves you vulnerable to exploitation. Whilst not all testing could be completed you presented with low cognitive function. Dr Uiterwijk thought you would benefit from long-term external support to help you to manage your previous experience of trauma and to develop your life skills.

66An email from Jenn Clarke, Community Connector and Housing Support worker, dated 2 February 2024, tendered at your sentence indication, detailed that you had signed a long term lease for a two-bedroom unit in Oakleigh South. Their program was to support you until the end of February 2025 and they can make other relevant referrals, including a program designed to assist those that have suffered childhood trauma.  You have a good working relationship with Ms Clarke.

67A support letter authored by Corey Wanganeen, Men's Family Violence Case Worker with Boorndawan Willam Aboriginal Healing Service dated 13 February 2024, was also tendered at your sentence indication hearing.  That letter indicated that their service had been working with you since November 2022 with a range of supports, including housing. 

68You do not appear to have your own issues with drugs or alcohol.

69You hope to secure a plumbing apprenticeship in the future and to also return to study.

70You would appear to have good prospects for rehabilitation.

Parity

The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders; and avoids unjustifiable differences in co-offender sentences.

71I have already referred to your mother receiving a community corrections order of two years' duration or her role in the offending of 11 June 2021. She had pleaded guilty at an earlier stage, had a particularly difficult life overall, had a significant criminal history inclusive of matters of violence, as well as a range of mental physical illnesses.  You have no prior criminal history, have the advantage of youth and a range of supports available to you already in place. The parity principle has some obvious application given your respective roles in the offending, which appears to me to be fairly even, but there are also understandable differences. I assess your future prospects as far greater than I assessed those of Kelly Dean's.

Submissions

72Both parties were submitting that all relevant sentencing considerations could be properly reflected in the imposition of a community correction order.

73Accordingly, I had you assessed as to your suitability for a community correction order.

74A report for the Mental Health Advice and Response Service (MAHRS) dated 14/3/24 has been provided, That report states:

'Mr Tokerua Ioane-Kaitara has a complex mental health history exacerbated by a chaotic lifestyle, family dysfunction, trauma, and social exclusion. He presented today as guarded, difficult to establish a rapport with and his insight into his emotional vulnerabilities was limited. Mr Ioane-Kaitara presented as an unusual young man with a singular personality style, however he did not present as acutely psychotic, and he told me that he would continue to access mental health and emotional wellbeing services via Boorndawan William Aboriginal Healing Service Case (BWAHS).

Mr Ioane-Kaitara could benefit from mental health support to assist him in establishing a structured meaningful routine for himself and practical support to identify his values and to focus on achieving his pro social life goals.'

75An assessment outcome report dated 14 March 2024 from Corrections Victoria has also been provided. You minimised your offending and, in part, blamed one of your victims. Nevertheless you were assessed as suitable for a community correction order.

Sentencing

76The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

77I am also required to balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as possible, offenders are rehabilitated, and are safely reintegrated into society.

78I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.

79For the two summary offences of unlawful assault, given your lack of history and principles of totality, you are convicted and placed on an adjourned undertaking for a period of six months, with the only requirement being that you be of good behaviour over that period of time.

80For the offences on the indictment, I propose to impose an aggregate sentence as I am satisfied that these offences are also founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

81For those matters you are convicted and placed on a community corrections order of 20 months duration. During that time you are to be supervised by the Office of Corrections, undergo 125 hours of community work, submit for alcohol and drug treatment as directed, and submit for mental health treatment as directed.

8250 hours of community work are offset against the treatment conditions, therefore more treatment, less community work.

83In addition to the conditions that I have imposed there are what we call standard conditions. The first and foremost of those is that you must not commit any other offences during the 20 month period which could be punished by imprisonment. You must report within two working days to your nearest corrections office, which I am told in your case is Dandenong. You are also required to advise your corrections office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.

84In my view this order presents you with a chance to continue to change your life in a positive fashion should you choose to take up that opportunity and the supports that I intend be made available. The order can be breached if you do not comply with it in terms of the conditions imposed or reoffend with an offence punishable by imprisonment whilst it is in place.  If you do so, you will have to appear before me for contravening the order and I may have to resentence you on the original charges, as well as a separate charge of contravening a community corrections order.  I can however only place you on this order if you agree to be placed on that order.  I will get Mr McGlone to speak with you in a moment.

85Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to 18 months' imprisonment with a minimum of 10 months before being eligible for parole.  In effect, Mr McGlone, there will be two documents for your client to sign.

86MR McGLONE:  Yes, I am happy to assist.

87HER HONOUR:  I will stand down whilst that takes place, thank you very much.

88(Short adjournment.)

89HER HONOUR:  Thank you, Mr McGlone, I can see that those documents have been signed.  The easiest way, Mr Ioane-Kaitara, to get through this order is to do what is asked of you and it is done, move on, but I am impressed with the efforts that you have made on your own behalf and hopefully they will stand you in good stead in the future.  In the nicest possible way I do not want to see you again.

90Ms Paganis, thank you very much for stepping into the breach of Mr Cameron, your assistance has been of great assistance.  Mr McGlone, thank you very much for your assistance as well, drive safely, thank you.  Adjourn the court.

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