Director of Public Prosecutions v Rakatau

[2022] VCC 1384

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00689

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES RAKATAU

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JUDGE:

HIS HONOUR JUDGE WRAIGHT

WHERE HELD:

Melbourne

DATE OF HEARING:

11-15 July 2022 (Trial)

16 August 2022 (Plea)

DATE OF SENTENCE:

23 August 2022

CASE MAY BE CITED AS:

DPP v Rakatau

MEDIUM NEUTRAL CITATION:

[2022] VCC 1384

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Found guilty at trial – Causing injury intentionally – Contravene conduct condition of bail – Commit an indictable offence on bail – Carry a controlled weapon without lawful excuse – Totality - Relevant criminal history – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 18; Bail Act 1977 ss 30A(1), 30B; Control of Weapons Act 1990 s 6(1).

Cases Cited:Cheung v The Queen (2001) 209 CLR 1.

Sentence:                  Imprisonment for a period of 5 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Manova	Office of Public Prosecutions
For the Accused	Mr J Desmond with Mr S Ranjit (Trial) Mr S Ranjit (Plea)	Papa Hughes Lawyers Pty Ltd

HIS HONOUR: 

Introduction

1James Rakatau, you have been found guilty by a majority jury of one charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charge 2 on the Indictment).

2You have also pleaded guilty to the following related summary offences:

·contravene conduct condition of bail contrary to s 30A(1) of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 4);

·commit an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 5); and

·carry a controlled weapon without lawful excuse contrary to s 6(1) of the Control of Weapons Act 1990, which carries a maximum penalty of 1 year imprisonment (Summary Charge 6).

3You have also admitted your prior Criminal Record.

Circumstances of the offending

4In sentencing you, I am bound by the principles in the case of Cheung v The Queen.[1]  As such, I must interpret the facts in a way that is consistent with the jury's verdict.

[1] (2001) 209 CLR 1.

5As to the charge to which you have been found guilty, the facts may be summarised as follows:

6You were 37 years old at the time of the offending, and you were in a relationship with Amy Evison. The victim, Ekrem Ozgur, was 48 years old and had been in a relationship in the past with Ms Evison. Mr Ozgur and Ms Evison had remained friends after that relationship ended. Mr Ozgur had met you several times and he was aware that you and Ms Evison were in a relationship.

7On 27 November 2020 in the afternoon Mr Ozgur was picked up by you and Ms Evison from the Coles Express Service Station on Ballarat Road, Sunshine. Ms Evison was driving her white Toyota Yaris Sedan. Ms Evison drove Mr Ozgur to 30 Bryant Street, Flemington to where his broken down white van was parked. During the drive, Mr Ozgur and Ms Evison had an argument about money.

8Later on that evening, Binnaz Mert and Brian Williams arrived to assist Mr Ozgur to repair his van. Mr Ozgur was still unable to get his car started despite his efforts.

9At 11:05pm, you left Ms Evison’s apartment in North Melbourne. You were captured on CCTV travelling in the lift to the ground floor.

10At 11:59pm on the same night, you and another male walked into the carpark at the rear of 30 Bryant Street, Flemington. That carpark is accessed from a driveway between 27 and 51 Shields Street, Flemington. You and the other male were captured on CCTV from the resident of 82 Shields Street, Flemington walking up that driveway.

11You and the other male approached Mr Ozgur, who was standing next to his van in the car park. Mr Ozgur first saw the two of you when you were a couple of meters away from him and he recognised you. Mr Ozgur did not recognise the other male, but saw that the male was carrying a stick, described by Mr Ozgur as being a metre and a half long.

12You and the other male approached Mr Ozgur. Mr Ozgur stated that you punched him to the head area to both sides of his face. He stated that  the other male with the stick pushed him against the roller door and pushed the stick against his chest.

13Mr Ozgur stated in evidence that you and the other male ‘laid in to’ him which is when he fell to the ground. He said he rolled up in a ball and that this head was ‘bouncing off the concrete’. Mr Ozgur tried to run away but fell over as he was dazed from the assault.

14You and the other male fled, running south west on Shields Street, Flemington. Mr Ozgur started to follow you but collapsed in the driveway.

15Neighbour Chris O’Brien was woken by screaming during the incident. He looked out his bedroom window and saw two males fighting. He saw one male push another into the bushes and then both males ran down the footpath towards Shields Street.

16The incident was reported to 000 and police attended.

17A wooden stick dropped by the second male was located and seized by police.

18Mr Ozgur was transported to the Royal Melbourne Hospital for treatment. He was treated in the emergency department. The following injuries were suffered by Mr Ozgur:

a.abrasions and swelling to the left front side of the head;

b.a small left parietal scalp haematoma and a small left frontal scalp haematoma (a bruise ‘egg’ on the left side of the head and the front of the head);

c.multiple abrasions over both arms, particularly the forearms; and

d.abrasions to the right knee.

19Dr Angela Williams, Senior Forensic Physician, examined these injuries and formed the opinion that the majority of them were indicative of blunt force. It is these facts that relate to Charge 2, intentionally cause injury.

20At approximately 1:50pm on 8 December 2020, police observed Ms Evison’s white Toyota Yaris Sedan adjacent to the North Melbourne library. You were the front passenger in that vehicle. You were approached and arrested by the police. 

21During the post-custody safety and evidence search, police located a meat cleaver wrapped in camouflage material tucked into the front of your pants. It is these facts that relate to Summary Charge 6.

Nature and gravity of the offending

22It was submitted on your behalf that while causing injury intentionally is a serious offence carrying a maximum penalty of 10 years imprisonment, that in this instance your conduct represents a low level example.

23While the victim’s injuries are not at the high-end of seriousness, is clear that the attack by you and the other male consisted of a number of strikes, including while the victim was on the ground, resulting in a number of injuries as described above.

24What is unclear on the evidence is the reason why you came to the victim on this particular evening. There was some evidence in the trial that suggests there may have been a drug deal earlier in the day resulting in a dispute over money. There was also evidence in the trial that the victim had made some derogatory remarks at the time of the assault, prompting your violent reaction. Either way, it is clear by the jury’s verdict that you had the intention to injure the victim and in my view, all the circumstances, it was a cowardly attack. It was late at night, the victim was on his own and you set upon him with another offender.

25I also accept however that in the circumstances, your offending represents a lower end example of the offence of intentionally cause injury.

Personal circumstances

26You are currently 39 years old, and you were born in Western Australia to New Zealand immigrants. Your upbringing has been described as one characterised by severe domestic violence perpetrated by your father against all of the members of your family. You ran away from your home at the age of 11 due to this domestic violence, and it is at this point you also stopped attending school. Following this, you were homeless for some three to four years, sleeping in parks, at school grounds and bus stops.

27You have an older brother and sister, and a younger sister. You also had a younger brother who suicided at the age of 16. This tragedy was particularly hard for you as you had been very close with him. When your brother passed away, you were in Barwon Prison, aged 27. You have expressed guilt about not being there for your brother during this time.

28Shortly after this event, your parents separated and your mother moved to Queensland.    

29After you left home at the age of 11, you were introduced to drugs, commencing with cannabis and gradually moving to amphetamines, heroin and methamphetamines. You have used drugs for most of your adult life.

30You did not have an income until you turned 16 and became eligible to receive the Youth Allowance. During this time you committed a number of offences and spent various periods of time in the prison system. 

31You had a daughter when you were 20 years old. Your daughter was born while you were in custody. Your relationship with the mother of your daughter ended soon after your daughter’s birth. In 2006, at the age of 27, you moved from Perth to Melbourne after being denied access to your daughter. You have had contact with your daughter only once during the last 12 years.

32You have a relevant criminal history, having served a number of prison sentences for violent offending and you are currently serving a sentence. On 10 May 2021 you were sentenced to 2 years and 8 months imprisonment, with a non-parole period of 2 years. You were not granted parole and it is expected that you will complete this sentence on or before 25 December of this year.

Sentencing considerations

33You have been found guilty on Charge 2 and denied on oath that you intentionally caused injury to the victim. Further there is no evidence before me that you have expressed any degree of remorse or regret in relation to the injury caused to the victim. However I take into account that you have pleaded guilty to the related summary offences.

34I firstly take into account the custody conditions during the Covid-19 pandemic. While you have been on bail in relation to this matter, you were sentenced on 10 May 2021 as outlined above for separate offending. As such, when your trial concluded on this matter you were subject to 14 days isolation, with limited contact with your lawyers or family members. Further, during the trial, on your return to prison each day, you were placed in isolation.

35It was submitted on your behalf that any further term of imprisonment should be moderated to take into account the conditions as outlined, in addition to the fact that you have been serving a sentence under the otherwise burdensome conditions implemented in prisons as a result of the pandemic.

36Further as you have been on bail in relation to this matter and you therefore do not have any pre-sentence detention to be declared pursuant to s18 of the Sentencing Act 1991, it was submitted that the principle of totality should be taken into account. I accept that submission. I also take into account that in relation to the sentence you received in this court in May 2021, you have been required to serve the whole of that sentence having not been granted parole.

37Turning to your prospects of rehabilitation. In the circumstances including taking into account your prior criminal history, your prospects are unable to be assessed positively. In relation to the commission of the offence before the court, you had only been released on 8 October 2020 before the commission of this offence on 28 November 2020. Further, you have prior history involving a number of violent offences including offending for intentionally cause injury, recklessly cause injury and recklessly cause serious injury. On each of those occasions you received terms of imprisonment. It appears that once you are released, you are only in the community for a relatively short period of time before you reoffend again. As a result you have had little opportunity for community-based dispositions or rehabilitative programs.

38You have indicated that upon your release you will return to Western Australia to reconnect with your family. A letter from your mother Denise Rakatau, was tendered to the court confirming her ongoing support and that she will provide you with a ticket to return to Western Australia upon your release. It was submitted on your behalf that your return Western Australia provides some protective factors, most prominently that you have the support of your mother and wider family. In my view you are at an age where, given your prior criminal history, you need to make a significant change and it is hoped the move to Western Australia will give you that opportunity. If you do take advantage of the supports you have in the community and make a fresh start in Western Australia, your prospects will undoubtedly improve.

39Finally, deterrence both general and specific are clearly prominent sentencing considerations in this instance. Denunciation of your conduct and protection of the community must also play a part in the sentencing consideration.

Sentence

40Mr Rakatau, would you please stand.

41James Rakatau, on Charge 2, intentionally causing injury, you are convicted and sentenced to 5 months imprisonment.

42On Summary Charge 4, contravene conduct condition of bail, Summary Charge 5, commit an indictable offence whilst on bail and Summary Charge 6, carry a controlled weapon without lawful excuse, you are convicted and sentenced to 1 month imprisonment on each charge.

43All sentences are to be concurrent with the sentence you are currently serving.

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