Director of Public Prosecutions v Matagi
[2017] VCC 529
•8 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00097
Indictment No. G11758661
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER TALOLUA MATAGI |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2017 | |
DATE OF SENTENCE: | 8 May 2017 | |
CASE MAY BE CITED AS: | DPP v Matagi | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 529 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – cause injury intentionally – aggravated burglary - person present – common assault
Legislation Cited: Crimes Act 1958, s18, s77(1)(b), s320; Sentencing Act 1991, s5(4C), s18
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence:Total effective sentence of three years’ imprisonment with a non-parole period of two years. Section 6AAA declaration: total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms R Champion | Office of Public Prosecutions |
| For theAccused | Ms D Dempsey | Victoria Legal Aid |
HIS HONOUR:
1 You have pleaded guilty to one charge of causing injury intentionally, Charge 1. The maximum penalty for this offence is 10 years’ imprisonment. Further, you have pleaded guilty to one charge of aggravated burglary, Charge 2. The maximum penalty for this offence is 25 years’ imprisonment. You have also pleaded guilty to one charge of common assault, Charge 3. The maximum penalty for this offence is five years’ imprisonment.
2 The circumstances of your offending are set out in the Amended Prosecution Opening and Chronology, exhibit A. These facts are self-explanatory. They really comprise one series of very violent events late at night on 28 June 2016 and into the early hours of 29 June 2016 involving the same victim at the same residence. The same sort of illogical rants and threats were made by you in the course of this violence.
Charge 1
3 You attacked one of the boarding house occupants at premises in Dandenong. This was Mr Sean Charles. You kicked on his door after aggressively banging on it and asking him to come out. He did so. You ranted something about his committing white people’ crimes against dark-skinned people. You punched him to the head and face. He ended up on the ground. You then kicked him in the face several times.
Charge 2
4 Shortly after, you obtained a knife and said “Someone is going to die tonight”. You started banging and kicking on the door at the boarding house again. The victim had locked his door after the events comprising Charge 1. You forced the door open and entered, holding the knife while the victim cowered on a couch.
Charge 3
5 You held the knife to the victim’s throat. You said, “I’m gonna cut your throat”. After unplugging the victim's X-Box gaming machine, you again picked up the knife and held it close to his throat. The victim believed he was going to die. The police were called after your sister contacted them and told them you suffered schizophrenia and had not been taking your medication. When the police arrived you were standing over the victim, still armed with a knife. You were arrested and have been in custody ever since. It appeared to the police you were substance-affected or suffered from a mental illness. A doctor assessed you as unfit to be interviewed. The victim was left with cuts on his face and forehead.
6 All three offences are serious. Some comments pertain to all three. You were unprovoked, the violence was sustained and on a lone victim. It was accompanied by very frightening threats and all this happened in the middle of the night.
7 You knew Sean Charles was inside his room as you had severely attacked him shortly before arming yourself with a knife. To enter in the way you did with a knife after the earlier attack showed a very clear violent intent on your part.
8 There is no Victim Impact Statement before the Court but it goes without saying these were terrifying events. As to the common assault, it was effectively still going on as even when the police arrived you were still standing over the victim armed with a knife.
9 You have admitted the contents of a criminal record. A LEAP sub-incident report also adds to the picture of your past history of violence. Your record shows examples of violent offending commencing in 2006, although admittedly, with some years’ break prior to 2012.
10 Lenient dispositions have failed in the past. For example you were given a 12- month Community Correction Order with a Justice Plan in April 2014. You breached it with further serious offending and received 15 months’ imprisonment in June 2015.
11 Apparently you were refused parole and served the full 15 months and within a short time of release, committed the three violent offences now before me. The LEAP records show your prior offences include use of a knife in a serious assault in 2012. Dispositions with a Justice Plan and mental health focus have been ordered in the past.
12 I turn now to matters personal to you. You are 30 years’ old. You have been exposed to violence from childhood years. You have unfortunately had an intellectual disability since birth. Your IQ has been assessed at 55. You apparently could not attend normal high school but went to a Special School in Dandenong for people with intellectual disabilities. You have also been diagnosed with paranoid schizophrenia.
13 You have some family support, but on the other hand some of your violent offending has been in a context of domestic violence involving those close to you. You have never been in employment. State Trustees manage the Disability pension you have been on all your adult life.
14 A number of documents have been tendered on your behalf:
· Exhibit 1 is an Outline of Submissions.
· Exhibit 2 is a report of Dr N Zimmerman, forensic psychiatrist, dated 12 November 2016.
· Exhibit 3 is a Client Overview Report, together with the Justice Plan dated 7 April 2014.
· Exhibit 4 is a Sentence/Remand report dated 1 May 2017.
15 In my opinion, the report of Dr Zimmerman enlivens the principles in Verdins.[1] While it clearly also refers to some substance abuse as having a causative connection to your offending, I am satisfied that you suffer from an impairment of mental function and there is a realistic connection between that impairment and your offending. Your mental impairment is an organic condition and you have also been diagnosed as suffering paranoid schizophrenia. I am satisfied that the necessary cogent evidence in the form of an expert opinion is provided by Dr Zimmerman.
[1]R v Verdins & Ors (2007) 16 VR 269
16 I am satisfied that a moderation of your sentence is required by Verdins’ principles. These principles need to be viewed against a background of not only your organic disability and diagnosed mental illness, but the fact that you went off your medication and were intoxicated. These actions on your part form part of the overall picture on causation, but do not mean that the realistic connection between your mental impairment and offending is lacking.
17 In my view, your mental impairment reduces the moral culpability of your offending and impacts on the punishment that is just in all the circumstances, as well as on denunciation. General deterrence needs to be modified on the basis that you are a less appropriate example in that regard than other offenders.
18 To some extent specific deterrence is moderated in your case but that must be viewed in the context that you went off your medication and also were substance affected.
19 I am also satisfied that your mental impairment will mean that the immediate imprisonment I will order is likely to weigh more heavily on you than a person in normal health.
20 I am unable to say whether there is a serious risk of imprisonment having a significant adverse effect on your mental health, as I would need more medical opinion. In other words, I would need more up-to-date medical evidence before reaching a conclusion as to future prognosis.
21 In my assessment your prospects of rehabilitation are very guarded.
22 Your counsel pointed to a number of matters which you are entitled to have taken into account in mitigation. These include your background, your mental health, very early pleas of guilty and in the end, while you obtained the weapon, fortunately you did not use it to stab the victim.
23 The fact that the attacks were all spontaneous and that you acted alone was also pointed out. I accept your pleas of guilty indicate genuine remorse. They also avoid, in a utilitarian sense, community time and expense of a trial and the need for the victim to give evidence.
24 I have already indicated that you have some family support although no-one was in attendance at Court.
25 Your counsel submitted that a Community Correction Order and a Justice Plan, together with further imprisonment was the appropriate disposition.
26 The prosecution submitted that further imprisonment was the only option open in view of the seriousness of your offending.
27 After considering all the evidence and undertaking the exercise required by s5 (4C) of the Sentencing Act, I am of the view that imprisonment is the only proper disposition in all the circumstances of your case.
28 As well as those matters personal to you to which I have referred, I must also take into account the other relevant sentencing considerations required in your case. General and specific deterrence must still be given weight in the sentence, in spite of the moderation I have spoken of in relation to Verdins. The community cannot, and will not, tolerate offending which so seriously compromises a citizen’s right to feel safe in his home, and offending which can have devastating consequences for a victim subjected to such frightening circumstances.
29 The message must be clear and consistent that appropriate punishment will result in appropriate circumstances. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. I must protect the community.
30 In spite of that moderation spoken of, I must still seek to deter you from such further offending and to deter others.
31 In arriving at an appropriate sentence in your case, I consider the significant overlap across your three offences warrants a deal of concurrency.
32 While there are significant differences between the three offences, there is at the same time, a very distinct overlap in what was really one chain of violent activity on that victim on that night. I will also exercise moderation in the length of your sentence, due to your very real and permanent mental impairment.
33 In the circumstances, I have no option but to impose an immediately serviceable term of imprisonment. The base sentence will be Charge 2.
34 On Charge 2, you are convicted and sentenced to two (2) years and three months’ imprisonment.
35 On Charge 1, you are convicted and sentenced to fifteen (15) months’ imprisonment with nine (9) months to be served concurrently with the base sentence.
36 On Charge 3, you are convicted and sentenced to nine (9) months’ imprisonment with six (6) months to be served concurrently with the base sentence.
37 The total effective sentence is three (3) years’ imprisonment.
38 I direct that you serve two (2) years’ imprisonment before becoming eligible for parole.
39 I declare 312 days pre-sentence detention pursuant to s18 of the Sentencing Act be reckoned as served.
40 Pursuant to s 6AAA of the Act, I declare that but for your pleas of guilty, I would have imposed a total effective sentence of four years and six months’ imprisonment with a non-parole period of three years.
41 I have made the ancillary orders requested. Any reason to detain Mr Matagi?
42 MS CHAMPION: Just one matter, Your Honour. Pre-sentence detention I had calculated at 313 days. He was 310 when we heard this plea on Friday, and it’s been three days since then.
43 HIS HONOUR: You have said you do not count Friday, so you may be right. If it is 313, I will make it 313. Is that right?
44 MS DONOHOE: Yes, Your Honour.
45 HIS HONOUR: Is that agreed?
46 MS DONOHOE: It’s agreed, Your Honour.
47 HIS HONOUR: All right, well I will alter the order accordingly.
48 MS CHAMPION: Yes, Your Honour.
49 HIS HONOUR: All right, you can take the gentleman, thank you.
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