Director of Public Prosecutions v Mutua
[2023] VCC 984
•8 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 20-01697
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOE MUTUA |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2022, 7 March 2023 and 6 June 2023 | |
DATE OF SENTENCE: | 8 June 2023 | |
CASE MAY BE CITED AS: | DPP v Mutua | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 984 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Recklessly cause serious injury – Punched and kicked - Total loss of vision – CISP Program – Abstinence from alcohol – Combined sentence
Legislation Cited: S 17 Crimes Act – S 6AAA, S 43, 44, 104A(1)(b) Sentencing Act
Cases Cited:Moresco v The Queen [2018] VSCA 236 R v Merritt [2007] VSCA 1 - DPP v Milson [2019] VSCA 55 - Worboyes [2021] VSCA 169 - Markovic [2010] VSCA 105 - Boulton v R [2014] VSCA 342
Sentence: 364 days imprisonment – 3 year Community Correction Order - $7,000 fine
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Fetherstonhaugh | |
| For the Accused | Mr G. Cooper | Ms E. Colliver |
HIS HONOUR:
1You can remain seated, this is going to take some time. And I'll ask you to stand up when I pronounce sentence.
2Mr Mutua pleaded guilty to a charge of recklessly cause serious injury on indictment no.L10372510.1, Mr Cookson has appeared on behalf of the Director and today Ms Fetherstonhaugh appears. Insofar as Mr Mutua was concerned Mr Cooper has appeared on his behalf and today Ms Colliver appears.
3A plea has been conducted over three dates including today, firstly, 5 July 2022, secondly, 7 March 2023, and thirdly 6 June 2023 which I adjourned to today for sentence.
4At the time of this offending, Mr Matua was aged 33. He's now aged 37 having been born in January 1986. The offence involves a crime committed at Truganina on 13 September 2019, when Mr Mutua recklessly caused serious injury to Mr Tearoa Tearii. He was aged 47 at the time. Such is an offence under s17 of the Crimes Act for which the maximum penalty prescribed is 15 years imprisonment.
5The circumstances of the assault emanated out of a drinking session conducted at a premises at Scotchsmith Crescent, Truganina. Mr Mutua and the victim were in a garage late at night, they had been drinking heavily. As he was leaving, Mr Mutua was being helped by a friend Apita. For some reason, he turned back and had an altercation with Mr Tearii.
6Mr Mutua punched Mr Tearii, which caused Mr Tearii to fall to the ground. He continued to punch and kick Mr Tearii who was at that stage in a vulnerable position and incapable of being able to defend himself. It is alleged that he was pulled off after some 30 seconds by his friend Apita, and another friend Fariu.
7In regard to the reasons, apart from the obvious being the impact of alcohol, when asked in the record of interview what was the reason, he suggested there was some tension between him and the victim.
8
The next day the victim presented to Mercy, Werribee with the assistance of his then ex-partner. His condition was such that he needed further treatment at
The Royal Eye and Ear Hospital, where he was conveyed.
9As at the time of that offending, Mr Matua had no prior offences, certainly not for violence of this type. He served pre-sentence detention of 95 days. He was subsequently arrested on 9 February 2020 and participated in a record of interview.
10
Mr Tearii, as demonstrated by the medical, hospital and optometrist reports, tendered in this matter as Exhibit E, as a consequence of this crime, has suffered total loss of vision to the right eye, loss of normal appearance of the eye.
He suffers ongoing irritation and pain, the question of enucleation as to the eye, is still to be determined by expert medical opinion, depending on his progress.
11Until today one has not had the ability to comprehend from Mr Tearii's viewpoint the impacts of this crime. Today was filed Exhibit F which is indeed the victim impact statement of Mr Tearii, dated 7 June of this year.
12It certainly makes for dramatic reading. The effect of him of this crime has been particularly deleterious, as he said,
'My life had been going downhill ever since I lost my sight. My other eye's getting worse, hospital stays, surgeries, depression and a suicidal sadness, helplessness'.
13He had initially five hours' of specialist surgery at The Ear and Eye Hospital and has had numerous treatments since. He expresses helplessness and hurt and loss of feeling. As to getting on with his life, difficulties with wearing a patch over his eye. He ultimately, albeit that his job was held for him, lost his job and had difficulties getting another one and has only recently gone back to employment. He had, as I say problems of depression and says that he sat in his house for essentially over a year. He could not work, was having lots of medication, had to be driven everywhere. He had issues in relating to his own family. Fortunately, his family are back with him now, albeit that they are not well.
14Mr Tearii had difficulty finding employment and he has difficulties with things such as judging depth or distance, walking down stairs, and has to be very careful when crossing roads. As I have already said, the future as to his eye and whether a prothesis is needed, is a matter for the future. I quote on the last page, 'I've had to learn to do basic things all over again, employment is hardest. I am working at the moment however, my eyes get sore and overworked, treatment's ongoing'.
15As I said, there is potential for further surgeries. He gets pain and itchiness in the eye and headaches. He says, 'That it makes me sad that one person's violence can destroy so many lives for nothing.' And he notes that he, 'Did nothing wrong and will have to live with my eye forever'. And has the potential of his good eye not holding up.
16
The other victim in the matter was his housemate, Kiera an ex-partner
Ms Meadows, who presented Exhibit C, which I read earlier in the week, which provided four very detailed pages which talks of the totality of the impact, not only on herself as carer, but obviously for Mr Tearii.
17Ms Meadows was the person who took him to the hospital and waited outside while he had surgery. She has had to attend to basics, like assistance and the teaching of how to pour water into a cup. It's fortunate indeed for Mr Tearii, that he's had Ms Meadows to look after him since his return from hospital to be his housemate and carer. Although she describes herself in addition in the statement to being a ‘pseudo-psychologist and counsellor’.
18
It is clear that the impact upon Mr Tearii is permanent, as is the impact upon
Ms Meadows. As I have said his employment as a forklift driver was not held for him. As I understand the position, he's now working again with sheet metal, but of course, as Ms Meadows expresses, there's always a fear as to any further accident, given the limitations he now suffers.
19Both those statements are detailed and indicate the loss caused by Mr Mutua's crime in this matter. It is clear that this sentence that I am about to pronounce cannot make up for those matters. Nor can it solve the issues that the victim has to cope with for the rest of his life.
20
Objectively as agreed by both counsel this injury to Mr Tearii is profound and
life-changing. Such injury and its consequence, of course impacts upon the gravity of the offence and is a major consideration for sentencing. I have described the unprovoked circumstances of the attack, and the fact that the attack continued while Mr Tearii was on the ground. Hence, objectively the crime calls for a sentence which effects general deterrence, specific deterrence and appropriate and just punishment.
21The prosecution submits even after taking into account the mitigatory factors that have been put to the Court for Mr Mutua, that the only appropriate punishment is a head sentence with parole. In this regard I discussed with counsel the sentencing statistics, no.239, which are for the period of 2014 and 2019 which demonstrates that 78 per cent of sentences for this crime had a sentence of gaol, indeed by 2019 the figures demonstrated the figure was 91 per cent. The median sentence for such crimes over such period, where it was a non-aggregated sentence, was two years and 10 months.
22
The prosecution referred me to a number of authorities DPP v Karazisis
[2010] VSCA 360, Tancredi v The Crown [2010] VSCA 157, the matter of
Ellis[2016] VSCA 21 and in particular the case of Moresco v The Queen [2018] VSCA 236. In addition, Mr Cooper referred me to DPP v Baig
a sentence pronounced in this Court by Judge Gwynn, which bears reference [2016] VCE 687.
23
All of these authorities and indeed sentencing statistics, as Mr Cooper remarked, have been pronounced pre-COVID and pre Worboyes principles. Further as pointed out by the Court of Appeal in Hasan v The Queen [2010]
VSCA 352, [44]-[49], the limitations of the utilisation of such sentences must be remembered, as pointed out in R v Pham, by the High Court, [2015] CLR 550, [29]. Such cases are to be used as illustrative yardsticks.
24In the end, Mr Matua is entitled to individualised justice and a just sentence, based upon the facts of this case. I should add that the Moresco case was an appeal case concerned with disparity, in regard to a similar catastrophic eye injury caused by drunken assaults. Mr Moresco as a youth of the age of 19 was given a youth training centre sentence for a period of three years. The co-accused, who did not appeal his original sentence, who had a relevant criminal history of this very charge, was sentenced to a period of imprisonment of three years, with a non-parole period of 21 months.
25I note in particular the Court at [34] of such judgment referred to the need for just punishment and general deterrence considerations when there is random drunken violence, with profound and enduring consequences for a victim.
26I come to the defendant's submissions and matters in mitigation.
27Mr Cooper initially asked for a combined gaol and Community Correction Order, see Exhibit 1, [45]. That submission was refined somewhat in the more recent submission tendered as Exhibit 5, in particular at [18], where it was submitted that the jail part of the combined sentence should be the period already served by way of 95 days pre-sentence detention.
28
The first matter which Mr Cooper raised was the rehabilitation of Mr Mutua.
Having perused the material I advised Mr Cooper that on the material tendered, I accepted that Mr Mutua was a good prospect for rehabilitation.
29I made that statement on the basis of; (a) the fact that Mr Mutua had no priors,
30(b) that since the offending, that is a period of three and a half years, he has no further convictions, although apparently there is a driving matter which is not before the Court, but related to excess alcohol,
31(c), the excellent steps taken, with the court CISP program and the positive reports as to his attendances and consultations which are set out in Exhibit 3(a) through to Exhibit 3(e),
32
(d), the positive Community Correction report received at my request being
Exhibit D; and
33(e), the positive reports of the psychologist Ms Mynard, being Exhibits 2, 6 and 7; and
34(f), the information supplied to counsel, the CISP organisation and Ms Mynard, that Mr Mutua had ceased drinking from the period in September 2021, when he had gained his freedom.
35
However as to such alleged abstinence, given the matters on the original brief when the matter came before me on 5 July 2022, I had then expressed concern based upon the note in the referral to CISP in August of 2021 that there was need for alcohol support and the history disclosed in Ms Mynard's first report, Exhibit 2 on 21 July 2022 at paragraph 28 that on occasions Mr Mutua
drank heavily most weekends and that on occasions he drank up to in excess of 24 drinks at one session, to the degree that he often the next day was not able to get out of bed. But that he had advised Ms Mynard that since he had been released from custody he had not had a drink.
36Mr Mutua confirmed such history as to abstinence in Exhibit 3A of the CISP report on 1 July 2022, in particular at p2. At that hearing in July 2022, I expressed concern as to such a heavy drinking history, the role of alcohol itself in the offence and the importance of some proof of such alleged abstinence being provided to the Court.
37
In the hearing in July 2022 at the request of counsel, the matter was adjourned to 7 March 2023 to allow for a CCO report to be prepared and for Mr Mutua to undertake a men's change program which had been arranged through
Ms Mynard's professional suite. As is referred to in Exhibit 6 in March 23 and indeed on that day, the bail provisions were varied by me to allow CISP to request random urine samples as to alcohol.
38
Thereafter on 7 March 2023, the Community Corrections report Exhibit D, dated 19 December 2022, was available. It noted that Mr Mutua had been reluctant to attend some CCO assessments and concerningly expressed
at p2 the view that alcohol had played no part in the crime. Again, at p3 he reported that he had not consumed alcohol since September 2021, nor in his view did he need any ongoing treatment as to alcohol.
39
Given the importance which I gave to the history of abstinence of alcohol, I again adjourned the plea, at the request of the defence, to allow for the completion of the men's change program Exhibit 3(b), and on that date that is in March 2023,
I specifically sought details of alcohol counselling and random urine results in that regard, given that the prosecutor had expanded upon his concerns as to the issue of remorse as to whether Mr Mutua had appropriate apprehension of the seriousness of the crime he'd committed and/or whether he had appropriate understanding of his own alcohol problem.
40
As I said the matter was adjourned to 6th day of this month. The additional report of Ms Mynard was tendered as Exhibit 7. At paragraph 12, Mr Mutua had maintained the abstinence history and in addition to that on formal testing it showed considerable understanding, as against the earlier report, of the issues surrounding alcohol, and the role of alcohol in the offending, see paragraph 14. On that day Exhibit 3E was tendered which was a the further CISP report of
3 March of this year, which noted despite the assistance and requests from CISP for Mr Mutua to provide urine analysis samples, Mr Mutua did not follow up with the requests. Thereafter, he apparently discharged himself form further CISP consultation.
41Until today the Court was therefore left with no confirmation as to the history of abstinence as to Mr Mutua from alcohol, despite what I have detailed as to the importance of such independent proof from July 2022. Such fact is obviously fundamental to the positive assessments made by Ms Mynard as to rehabilitation prospects, see paragraph 23 of Exhibit 7 and the CISP reports, Exhibits 3(d) and 3(e), and indeed the Community Correction report Exhibit D, and as set out in that report on p5, the circumstances as to his consent to a proposed alcohol exclusion condition, where again he maintained that he has been so abstinent.
42Today I received five reports which haven't been tendered. They're random drug samples. They have been requested by his general practitioner and were collected on 12 December 2022, 25 January 2023, 14 April 2023, 1 June 2023, and 2 July 2023. They are as described as random drug screens and the only time alcohol is mentioned at all is on the last random drug screen where alcohol is not detected.
43Those matters indicate, while not proof of total abstinence, some bona fides insofar as certainly since December of last year, he has sought through his doctor to have urine analysis done. It would appear from what I am told from the Bar table, that that instruction was clearly forwarded by the lawyers on his behalf to his doctor. Why it wasn't carried out I am unable to say. Whether the fact that Mr Mutua does not have a very advanced vocabulary, that he struggles to understand words and needs simplistic explanation according to Ms Mynard in Exhibit 7, maybe an explanation. However, I would have thought it was made very clear by me throughout what the Court required.
44
I am not satisfied therefore, to the civil standard, that Mr Mutua has maintained abstinence of alcohol since September 2021, as he alleges. Such obviously impacts upon the positive evidence given to the Court as to future rehabilitation.
I do accept however that he has certainly engaged in counselling, and alcohol and drug counselling with CISP over an extremely long period from 18 August 2021 as is detailed in their positive reports on his behalf. I also accept
Ms Mynard's last report that there is a substantial difference between her two reports, and that Mr Mutua demonstrated upon formal testing a marked change for the better insofar as his understanding of the risks associated with alcohol use.
45I do find based on the totality of the evidence, despite my concerns as to the failure to provide the court independent proof of his alleged abstinence, that he does have good prospects for rehabilitation based on his history. That is, that this is the only such offence of this type in his history, and as I have said he comes before the Court aged 37 years of age.
46Insofar as rehabilitation is concerned, I note the principles set out by the President of the Court of Appeal in R v Merritt [2007] VSCA 1, [49], where His Honour said,
'As I said in The Queen v Tibrucy, the sentencing court looks to the future as well as the past. There is a very great benefit to the community at large as well as to individuals themselves and their immediate families if future criminal activity can be avoided. It's important that this court by its own sentencing decisions, recognise and reward efforts of rehabilitation just as we should support trial judges who do so. It's important to reinforce in the public mind, the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterise much of the public commentary on sentencing is understandable, but it focuses on only one part of what the sentencing court does'.
47I refer in this regard also to the Court of Appeal decision of DPP v Milson [2019] VSCA 55, [71] where the following was said,
'Indeed although it's often taken for granted that leniency extended by a judge for the purpose of rehabilitation bestows a benefit on the prisoner alone, commentary and social and news media frequently ignores the fact that the community interest is best served if well-placed leniency in sentences made (and often does) lead to reformation'.
48Other aspects put by Mr Cooper, which were accepted by me, was the fact that the plea was made at the earliest time possible after the matter was resolved on 17 February 2021. I also accept that such is an indication of remorse, and that Mr Mutua understands and now shows understanding and empathy. I might say with the help of Ms Mynard and the consultation sessions with CISP, in regard to the terrible injury that he impacted upon the victim in this matter albeit that it took such some time to be expressed.
49I accept that the principles of Worboyes apply in this case, [2021] VSCA 169, [39], that the justice system is still, due to the pandemic, in a difficult situation and therefore pleas made during this period do bring with them greater weight and are entitled to a pronounced amelioration of sentence.
50
As I have already said he comes before the Court without any priors at the
age of 37, has lived a crime-free life, but for this aberration. He has a good work record and is a hard worker and, in this regard, I refer in particular to the character references which are of some import, tendered as Exhibit 4.
51As to alcohol itself, and which I have mentioned quite a bit in these reasons, I might say that the fact of being affected by alcohol was not in any way put forward as an excuse, nor would it be accepted as such, but it certainly is accepted as an explanation.
52The other matter that was put to me was the impact of gaol. He has a long term partner, they have two children now aged eight and five. I note the impact of the 95 days' imprisonment served and the financial and emotional issues. No doubt a period in gaol for Mr Mutua will mean that he will be particularly concerned about the financial and emotional impact upon his partner and his children, and in this regard I accept the principles referred to by Mr Cooper in mitigation, set out in Markovic [2010] VSCA 105, [20], and quoted by him in his submissions.
53Mr Cooper also raised the issue as to the potential for deportation. I accept on the matters put that Mr Mutua is not a citizen of this country and he clearly, if a sentence of over 12 months is pronounced would be subject to deportation. It was put to me by Mr Cooper that a sentence should be such as to overcome such risk. Whether such is possible is always a matter that depends on the totality of the circumstances of course.
54Insofar as the original submission, Mr Cooper had raised the issue of Verdins principles 5 and 6, however given the latest report of Ms Mynard, that matter was not pursued.
55The final matter that I will come to is the question of delay. The sentence now being carried out, comes some three and a half years from the offending. The reason for that is multifactorial and COVID of course has played a part. As I have already referred, Mr Mutua has also added to this issue himself, when he failed to answer bail on 10 March 2021 and was ultimately arrested three months later and served then 95 days on remand from 25 June to 20 September 2021.
56
I accept that during that period in gaol he had to endure those
95 days with the general conditions and impact of COVID restrictions. Further delays in this sentencing occurred by requests for adjournments made by the defence in the interests of trying to prove to the Court that their client was an appropriate person to take into account the issues as to rehabilitation.
57Insofar as the sentence sought by Mr Cooper for his client, he referred to Boulton, [2014] VSCA 342, [131], where the Court said:
'It follows from what we have said that a Community Correction Order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment. Such as for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences, some kinds of homicide. The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects of rehabilitation'.
58
As I indicated to the Court last time, the sentencing here requires a very difficult balance, and a close consideration of those principles that I have just read out in Boulton. Ms Colliver I am prepared to accept the submission as to the s44 sentence for your client, however I consider 95 days is not sufficient.
It will require your client to go back to gaol. I intend to impose a fine in addition and I would impose all of the conditions proposed under the Community Correction Order report in addition to a specific condition that for the period of the community correction part of the sentence, which will apply after he's released from gaol, that is for a period of three years, that there be no consumption of alcohol at all and that he be subject four times a year to random testing.
59I should indicate now to you Mr Mutua, albeit that you have got to serve a further jail sentence, there will be no grounds once you are on Community Correction Order for any failure. If you breach any of those conditions and you come back here, you need not come back with any counsel. You will then serve a higher sentence.
60It may well be in those circumstances Ms Colliver that your client doesn't want a Community Correction Order. I will not go any further unless you tell me that he would consent, he would be convicted and sentenced to a combined sentence under s44. That would necessarily mean that I will reject the submission of the prosecutor. I would require him to serve a sentence in gaol of 12 months. I would then impose a CCO for three years with all of the conditions set out in Exhibit D in addition to the specific conditions, that he is not consume alcohol at all in that period and that he be subject to random testing over the period of four times per year.
61And in addition, that there be a fine imposed of $7,000, which I will give a stay of three years. Do you want to seek instructions whether he's prepared to accept that. I say this very clearly, if you don't follow the conditions, you're going to be back in gaol anyway, Mr Mutua. The reason for this is given the steps you have taken towards rehabilitation and the totality of the factors, I am prepared not to impose what the prosecution submitted. However, because of the serious nature of this offending, it is necessary for you to go back to gaol. I have decided to give you a combination sentence, but it will be conditional. And I want to make clear to you, you breach the conditions and that will be the end of that, I will then impose a further gaol sentence. Ms Colliver.
62MS COLLIVER: If I could approach briefly Your Honour.
63HIS HONOUR: Yes, well I'll stand down while you do it.
64MS COLLIVER: All right.
65HIS HONOUR: Ms Colliver, can I just indicate the penalty that'll be imposed by way of prison is 12 months. I may have said 12 months plus 95 days.
66MS COLLIVER: Yes, Your Honour, we've just - - -
67HIS HONOUR: I meant 12 months, I apologise.
68MS COLLIVER: All right.
69HIS HONOUR: And secondly the conditions - the recommended conditions, I said that all the conditions will apply, it's to be noted there's no work condition recommended. I don't intend to impose judicial monitoring or an alcohol exclusion condition, I can't see the point of that. The alcohol exclusion condition is not to tell you, you can't go to certain places, that's not the real problem, but he just mustn't drink. And I don't see why I should be monitoring him. If he makes a mistake, he knows what's going to happen.
70MS COLLIVER: Yes.
71HIS HONOUR: Was there any other matters that you needed to clarify?
72MS COLLIVER: Just to clarify Your Honour. Is Your Honour's indication if I can put it that way, it would be a 12 month sentence, noting that 95 days have been served?
73HIS HONOUR: Yes, days already been served.
74MS COLLIVER: Yes, so that would be reckoned?
75HIS HONOUR: Yes.
76MS COLLIVER: Yes. Your Honour the only matter I was going to raise is I understood Your Honour's intention with respect to the sentence was not to fall foul of the mandatory cancellation provisions in the Migration Act which would be - which would be an Act that if Your Honour did impose a sentence of more than 12 months, but Your Honour's clarified Your Honour doesn't intend to do that.
77HIS HONOUR: Yes.
78
MS COLLIVER: And thank you for clarifying. In those circumstances
Your Honour, Mr Mutua indeed will accept Your Honour's indication with respect to a Community Corrections Order.
79HIS HONOUR: So he's prepared to consent to such a determination?
80MS COLLIVER: Yes, Your Honour.
81HIS HONOUR: All right. Any matters I need to clarify as far as you're concerned Madam Prosecutor?
82MS FETHERSTONHAUGH: No, Your Honour.
83HIS HONOUR: All right. Yes, if you'd stand up, please Mr Mutua.
84You will be convicted of this offence and be sentenced to a combined sentence under s44 and 43 of the Sentencing Act. Insofar as 44 is concerned you will be sentenced to a period of imprisonment of 12 months gaol. And a Community Correction Order is for three years, to commence 12 months from today or whenever you are released.
85That Community Correction Order will have all of the conditions recommended by the Community Correction office in their report of 19 December 2022 but for the judicial monitoring and the alcohol exclusion. I specifically impose the additional condition as to no consumption of alcohol, and that you would be subject to random tests four times a year.
86In addition, pursuant to s43, you will be fined the sum of $7,000. I will grant a stay on that for a period of three years and indicate that any application to seek further time and/or to amend that in any way is to be heard before me.
87Pursuant to s6AAA can I declare that had you not pleaded guilty, the sentence that I would have imposed would have been a period of two and a half years gaol with a non-parole period of one year and 10 months. I might indicate that such a determination as required by Parliament is very difficult in a case like this which has a multiplicity of circumstances, that I do as best as I can.
88I think Madam Prosecutor I have gone to all of the matters that are necessary in regard to this sentence.
89MS FETHERSTONHAUGH: Yes, Your Honour.
90HIS HONOUR: Yes, thank you and now we'll prepare that document and have that signed. Ms Colliver you might help with the - - -
91MS COLLIVER: Yes, Your Honour.
92HIS HONOUR: Madam Prosecutor if you could thank Mr Tearii's and Ms Meadows for the victim impact statements we received for the court, thank you.
93MS FETHERSTONAUGH: Yes, Your Honour I will do.
94HIS HONOUR: Thank you, they are of much assistance. Mr Mutua I hope that the matters that have been put before me, that you now are fully comprehending the dramatic impact that you've had on Mr Tearii's life. For that you will serve a period of 12 months in gaol, less the 95 days you've served already. Thereafter you'll have a period of three years under a Community Correction Order. I've imposed the conditions suggested by the Department of Corrections, they are essentially therapeutic conditions and they are to ensure that this type of crime is not committed by you again, and the impact that it's wrought.
95
Specifically, and there can be no occasion to get this wrong I would hope.
You are not to drink in that period. You are to be tested in that period. And if you are found to be drinking, that will be a breach which will entitle the Department to bring you back before me and alter the sentence, do you understand that?
And you're going to be tested four times a year randomly, to ensure that takes place. Clearly, you're a man who should not be drinking. The consequences of this criminality are so obviously horrific, that that demonstrates you should never touch drink again. Yes, good luck. Yes, Mr Mutua can be taken down.
96Yes, I thank both counsel and their instructors for their assistance in this matter which seems to have been going a long time and involved a lot of aspects. Yes.
97NOTE – on 9 June 2023 His Honour, pursuant to S 104A(1)(b) of the Sentencing Act, amended the sentenced passed on 8 June 2023 to provide for a jail sentence of 364 days to achieve what was intended on the day of the original sentence being that the deportation provision of the Migration Act 1958 (Cth) not be enlivened by the sentence.
- - -
0
8
0