Director of Public Prosecutions v Reiri

[2022] VCC 1358

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00112

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATON KENRICK REIRI

---

JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2022
DATE OF SENTENCE:	24 August 2022
CASE MAY BE CITED AS:	DPP v Reiri
MEDIUM NEUTRAL CITATION:	[2022] VCC 1358

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Aggravated burglary; Intentionally cause injury; Armed robbery; Recklessly exposing emergency workers to risk and related offending; Injury inflicted in the presence of 5-year-old child; Offender on bail at time of offending; Previous convictions for similar offending; Need to emphasise personal deterrence; Prospects for rehabilitation guarded; Sentence substantially reduced due to plea of guilty.

Legislation Cited:      Road Safety Act 1986 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269

Sentence:                  Total effective sentence of 6 years imprisonment, non-parole period of 4 years imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Ms S Joosten	Farrelly Legal

HIS HONOUR:

Introduction

1Paton Kenrick Reiri, you have pleaded guilty to six charges comprised by Indictment No. L12221649 being:

(i)that on 10 August 2020 you entered a building situated at Garden St Portland with intent to commit assault and had with you a knife (aggravated burglary);

(ii)that on 10 August 2020 you without lawful excuse caused injury intentionally to Joshua Marlow (intentionally cause injury);

(iii)that on 10 August 2020 you robbed Jaylene Thoms of an Apple iPhone and at the time had with you a knife (armed robbery);

(iv)that on 17 September 2020 you recklessly drove a motor vehicle causing damage to an emergency service vehicle knowing or being reckless as to whether the vehicle was an emergency service vehicle (damaging an emergency service vehicle);

(v)that on 17 September 2020 you drove a motor vehicle in the vicinity of Jason Von Tunk , an emergency worker on duty recklessly exposing him to a risk to his safety knowing or being reckless as to whether Jason von Tunk was an emergency worker (recklessly exposing an emergency worker to risk by driving); and

(vi)that on 17 September 2020 you drove a motor vehicle in the vicinity of  Brendan Finn, an emergency worker on duty, recklessly exposing him to a risk to his safety knowing or being reckless as to whether Brendan Finn was an emergency worker (recklessly exposing an emergency worker to risk by driving).

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

(i)that at Portland on 10 August 2020 you committed an indictable offence whilst on bail (Related Summary Offence Charge 8)

(ii)that at Jarklin on 17 September 2020 you failed to stop your motor vehicle on police direction (Related Summary Offence Charge 27);

(iii)that at Jarklin on 17 September 2020 you possessed a control weapon without lawful excuse (Related Summary Offence Charge 33);

(iv)that at Jarklin on 17 September 2020 you committed an indictable offence whilst on bail (Related Summary Offence Charge 34);

(v)that at Jarklin on 17 September 2020 you contravened a conduct condition of bail (Related Summary Offence Charge 35);

(vi)that at Underbool on 28 August 2020 you contravened a conduct condition of bail (Related Summary Offence Charge 36); and

(vii)that at Portland on 10 August 2020 you contravened a conduct condition of bail (Related Summary Offence Charge 37).

Circumstances of offending

3At about 8.45pm on the evening of 10 August 2020 you attended a house at Garden Street, Portland with an unknown male. Inside that house were the victims of this offending Joshua Marlow, Jaylene Thoms, Tara Davies and Mr Marlow’s five-year-old daughter.

4You knocked on the front door and Mr Marlow asked from inside, “Who’s there?” There was no response, and he asked again who was there. Mr Marlow then obtained a homemade taser, believing that he knew who was at the door.

5Ms Davies answered the door and observed you to be leaning with your arm against the door frame. She told you not to come in, that there was a five-year-old in the house and to “get out”.

6At this point you could see Mr Marlow standing further inside, at the doorway to his bedroom. You motioned to him and said, “Come on, come outside”. Mr Marlow responded, “No man, I don’t want any trouble”.

7You then entered through the doorway, past Ms Davies, and headed towards Mr Marlow who was still standing at the doorway to his bedroom. His five-year-old daughter was inside that bedroom. At the time you entered these premises you were armed with a knife. That conduct constitutes Charge 1 on the indictment – aggravated burglary.

8Ms Thoms approached you, stood in front of you and attempted to fend you off using a broom handle. You pushed her out of the way, back into the hallway. You then lunged at Mr Marlow who felt a jab to his stomach and stepped back. At this point he saw that you were holding a 20 cm long silver switchblade/pocketknife.

9Mr Marlow produced the home-made Taser in an attempt to defend himself. You pursued him into the bedroom, swiping at him with the knife. You slashed him to his chest, causing a 15 cm cut. As he crouched down over his bed, you then slashed him to his right cheek, causing a 5 cm cut in the area between his right eye and his lip. That conduct constitutes Charge 2 on the indictment – causing injury intentionally.

10Mr Marlow’s daughter was present in the bedroom throughout this attack and you were clearly aware that she was present. He said to you, “Man, this is not on, my daughter is here”.

11You said, “Where’s the money?” Mr Marlow told you that he had no money and that he had nothing.

12You then left the bedroom and ran after Ms Thoms whilst still holding the knife. She was attempting to call 000. You tried to grab her mobile phone and in so doing swiped the knife towards her. She hid under the kitchen table so you hit the mobile phone out of her hand and then broke it over your knee. You then left the house, taking the phone with you. That conduct constitutes Charge 3 on the indictment – armed robbery.

13Later that night, police attended at your home address on a number of occasions. You were on bail for other matters, a condition of which was that you remain at your home between the hours of 10pm and 5am and that you present to the door if police attended. You were not present at that address and that conduct constitutes Related Summary Offence 37 – contravening a conduct condition of bail.

14On 28 August 2022, two police officers attended at an address in Underbool where you had been working as a shearer. As those police officers walked towards the shearing shed, you ran to the south side of the shed towards a grey BMW registered in your name.

15The officers got to the driver’s side of the car but you got into the vehicle from the passenger side and climbed into the driver’s seat. One of the officers said to you, “Paton, we only need to talk to you”. You then got out of the vehicle and walked around to the passenger side of the car. An argument then ensued during which you got back into the car on the passenger side and climbed into the driver’s side. You then drove away.

16A further condition of your bail was that you were not to drive a motor vehicle. Your conduct on 28 August 2020 constitutes Related Summary Offence 36 – contravening a conduct condition of bail by driving a motor vehicle.

17On 17 September 2020 a number of police officers attended a shearing shed located on a property known as ‘Concordia’ on Major Line Road in Jarklin. When you saw police arriving, you ran to a red Holden Commodore parked nearby. As police arrived they placed their cars around your car in order to box it in to prevent your escape.

18Detective Sgt Jason Von Tunk approached the driver’s side door and attempted to open it. Detective Leading Senior Constable Brendan Finn also approached your car, however you refused to open your door and tried to drive away.

19You reversed your car and deliberately collided with the police vehicle parked behind you, causing damage to the sliding door of that car and pushing the line of vehicles, one of which was occupied by a police officer.

20Detective Sgt Von Tunk drew his baton and struck the driver’s side window, smashing it. You were repeatedly told to stop, however you manoeuvred your car in the direction of Mr Von Tunk and Mr Finn. They were forced to jump out of the way to avoid being run over and you narrowly missed Mr Finn. That conduct constitutes Charges 4, 5 and 6 on the indictment, being damaging an emergency services vehicle and two charges of recklessly exposing an emergency worker to risk by driving. It also constitutes Related Summary Offence 27, being failing to stop on direction by police, and Related Summary Offence 35, contravening a conduct condition of bail in that you drove a motor vehicle.

21You then drove your car at speed and in an erratic manner towards the front entrance of the property, however that was also blocked by police vehicles. You then attempted to get away through another entrance where there was a cattle grill but you collided with that grill. The left front wheel of your car was severely damaged, causing you to stop.

22Nevertheless, you continued to try and accelerate away. Police then surrounded your car and demanded that you get out. You refused and had to be forcibly removed from the driver’s side window and placed under arrest.

23A search of your car revealed a long home-made baton and torch baton. The possession of those items constitutes Related Summary Offence 33, being possession of  controlled weapons.

The nature and gravity of your offending

24Clearly, your motivation for this offending was to extract money purportedly owed to you for drugs. As Ms Guesdon, who appeared on behalf of Victorian Director of Public Prosecutions, pointed out, there were a number of aggravating features of this offending. Three in particular stand out.

25The first was the use of weapons, whether it be a knife or a car, to inflict the violence and injury which mark most of this offending.

26The second was to carry out that violence, in the case of what occurred at the home on Garden St on 10 August 2020, in the presence of a five-year-old child.

27The third aggravating matter was that you were on bail at the time you committed these offences.

28You had been sentenced on 4 May 2016 to a total effective sentence of four years and three months with a non-parole period of two years, for the offences of aggravated burglary, intentionally cause serious injury and common assault. You were released on 12 months’ parole on that sentence on 4 September 2018 and completed your parole in September 2019. On 16 January 2020, you were charged in relation to some drug matters and taken into custody. You were granted bail in respect of those matters in the Supreme Court on 21 May 2020.

29Because you committed these offences whilst you were subject to that undertaking of bail, the presumption as to the imposition of concurrent sentences is displaced. Section 16(3C) of the Sentencing Act 1991 stipulates that every term of imprisonment imposed for an offence committed while released on bail should be served cumulatively upon any other sentences of imprisonment imposed either before or at the same time, unless otherwise directed.

30The combination of those three aggravating features renders your offending particularly serious.

31It was also pointed out that the offending for which you were sentenced in May 2016 was very similar to your offending of 10 August 2020. In that earlier incident you forced your way inside a house, armed with a baseball bat, with a co-offender who was armed with a machete. Once inside, you struck a young woman with the baseball bat and then savagely beat a man with whom you had some drug involvement. Your co-offender stabbed that man in the face whilst you inflicted serious injuries with the bat.

32I should make it plain that you are not to be punished again for that offending, but the commission of these offences in similar circumstances gives rise to the need to emphasise the sentencing purposes of personal deterrence and protection of the community in addition to general deterrence and denunciation. I will return to those sentencing objectives shortly.

Victim impact

33I was informed that each victim had been given an opportunity to submit victim impact statements but declined to do so.

Personal circumstances

34You were born in February 1993 and are now 29 years of age. Your parents were from New Zealand and are of Maori heritage. They immigrated to Australia before you were born. I was told that you come from a large family and that you were close to your seven siblings, although one of your sisters passed away when you were in prison in 2016.

35Your father was a shearer and was often absent from the family home. Your mother had alcohol and gambling problems and you were exposed to a good deal of violence between your parents, and indeed between members of your extended family as well. By and large, your upbringing was impoverished and quite dysfunctional.

36Your parents separated when you were 16 and you told your assessing psychologist that you “went off the rails” after that. An earlier psychological assessment conducted for the purposes of the 2016 case, carried out by Dr Aaron Cunningham, diagnosed you with a verbal learning disorder, albeit that your intellectual functioning was determined to fall within the average range.

37That diagnosis was reflected in your results at school. You describe yourself as being hopeless with reading and spelling but could perform well in mathematics. You are not sure whether you completed Year 9 or Year 10 at school but you recall being involved in a number of fights resulting in suspensions and expulsions.

38Once you left school you trained as a shearer. In fact, you describe yourself as a fifth-generation shearer and believe that you are quite capable at that work. Your counsel emphasised that you have a very strong work ethic and, aside from the term of imprisonment, you have consistently been in employment. Indeed, at one stage you were employing something in the order of 15–20 contractors on your own account.

39You are also the father of two children aged nine and six. You formed a relationship with a young woman when you were still in high school and you were together with her for about 10 years. The relationship ended about three years ago and you have not had contact with your children whilst you have been in custody.

40From about the age of 16 or so, you started drinking alcohol quite heavily, generally engaging in binge drinking. When you were about 20 years of age you were introduced to methylamphetamine, and your counsel suggested that you quickly became addicted to that drug and that it often provided the setting within which you would become more violent and aggressive.

41Clearly enough, your drug abuse also provided the setting within which you committed the offences in 2016, these offences, and another set of drug offences which were committed in January 2020 and dealt with in June 2021 in the Magistrates’ Court. In respect of those latter matters you received a total effective sentence of 152 days’ imprisonment. I should make it clear that subsequent matter will not be taken into account for the purposes of formulating this sentence.

Procedural history

42As to the procedural history of this matter, you indicated that you were prepared to plead guilty to the matters of 28 August 2020 and 17 September 2020 at an early stage in the proceedings. However, with respect to the aggravated burglary, intentionally cause injury, and armed robbery, there was a contested committal which was conducted on 1 February 2022. You pleaded guilty after that committal.

43The value of your plea of guilty is diminished somewhat by the fact that it was not entered at the earliest opportunity, and indeed the victims of your offending were cross-examined at committal. Nonetheless, your plea of guilty remains important, particularly because it has avoided a criminal trial and it has been entered at a time when the court is striving to manage the backlog of cases caused by the pandemic. I should therefore make it clear that your sentence will be substantially reduced because you have entered a plea of guilty in the circumstances that you have.

44You went into custody in respect of these matters in September 2020. The entirety of your sentence has been served subject to the restrictive conditions imposed by the prison authorities in order to deal with the pandemic. I will take that matter into account in your favour.

45You were most recently assessed by a forensic psychologist, Marlese Bovenkerk, who provided a report of 27 June 2022. In her view, aside from the previous diagnosis of verbal learning disorder, you have a substance use disorder, you exhibit some antisocial personality traits and she provisionally diagnosed you with post-traumatic stress disorder. In addition, there were some indications of depression and symptoms of severe anxiety. Ms Bovenkerk also assessed you as being a high risk of violent recidivism.

46Ms Bovenkerk further stated:

“It is noted that imprisonment would likely weigh more heavily on Mr Reiri than a person without his conditions. In individuals with a history of mental health difficulties such as depression, anxiety and trauma, there is the potential for significant mood fluctuation and the volatile nature of the prison environment may further exacerbate his symptom profile.”

47On the strength of that assertion, your counsel submitted that the fifth principle articulated in Verdins[1] was engaged, namely that the re-occurrence of your symptoms/condition is reasonably foreseeable and that may mean that a sentence of imprisonment may weigh more heavily on you than it would on a person in normal health. Ms Guesdon did not take issue with that submission and I accept that I should take that into account in your favour.

[1]R v Verdins & Ors (2007) 16 VR 269.

48It was further submitted that the sixth principle was also engaged, namely that if there is a serious risk that imprisonment will have a significantly adverse impact on your mental health then that will mitigate. I am not satisfied that there is sufficient basis in the material relied upon to engage that principle.

49Ms Joosten, who appeared on your behalf, also relied on a report from a clinician with Caraniche Drug and Alcohol Services that confirmed that although your access to rehabilitative programs has been restricted, you were able to engage in individual counselling commencing on 8 March 2022. The report confirmed that you had attended 11 sessions and that you had demonstrated a high level of motivation and commitment to treatment. The treatment is ongoing.

50Counsel also pointed to your solid work history and the fact that you were able to successfully complete a one-year parole period after your last sentence as demonstrating you have some prospects for rehabilitation.

51Although I take those matters into account in your favour, it is difficult to be optimistic about your prospects for rehabilitation. That is so having regard to your entrenched drug abuse, your continued serious offending of a similar kind and the assessing psychologist’s opinion that you are at a high risk of violent recidivism.

52That said I will take into account the fact that you have shown some motivation to engage in treatment, have a capacity to work productively and are still relatively young, so your case should not be seen as hopeless by any means. I therefore see it as appropriate to structure your sentence so as to provide some reasonable measure of supervised release on parole.

53Returning to the purposes for which your sentence must be imposed, considerations relevant to your rehabilitation, important as they are, must be subsidiary to the other more punitive sentencing objectives I referred to earlier, because this offending is so very serious.

54The ease with which you resorted to weapons to inflict violence and injury and to go so far as to do so in the presence of a five-year-old child, in my view, deserves condign punishment.

55In essence, you must understand, and those minded to engage in similar behaviour must understand, that the type of thuggery and lawless violence in which you engaged on 10 August 2020 and 17 September 2020 will not be tolerated. The sentence to be imposed on you will seek to make that clear.

Sentence

56Taking all relevant matters into account, you will be sentenced as follows:

(a)   On Charge 1, aggravated burglary, you will be convicted and sentenced to a term of imprisonment of 4 years.

(b)   On Charge 2, intentionally cause injury, you will be convicted and sentenced to a term of imprisonment of 3 years.

(c)   On Charge 3, armed robbery, you will be convicted and sentenced to a term of imprisonment of 3 years.

(d)   On Charge 4, damaging an emergency vehicle, you will be convicted and sentenced to a term of imprisonment of 4 months.

(e)   On Charge 5, recklessly exposing an emergency worker to risk by driving, you will be convicted and sentenced to a term of imprisonment of 12 months.

(f)    On Charge 6, recklessly exposing an emergency worker to risk by driving, you will be convicted and sentenced to a term of imprisonment of 12 months.

(g)   On Related Summary Offence 8, commit an indictable offence on bail, you will be convicted and discharged.

(h)   On Related Summary Offence 27, failing to stop on police direction, you will be convicted and sentenced to 14 days imprisonment.

(i)    On Related Summary Offence 33, possession of a controlled weapon, you will be convicted and sentenced to 14 days imprisonment.

(j)    On Related Summary Offence 34, committing an indictable offence whilst on bail, you will be convicted and discharged.

(k)   On Related Summary Offence 35, contravening a conduct condition of bail, you will be convicted and discharged.

(l)    On Related Summary Offence 36, contravening a conduct condition of bail, you will be convicted and sentenced to term of imprisonment of 14 days.

(m)     On Related Summary Offence 37, contravening a conduct condition of bail, you be convicted and sentenced to a term of imprisonment of 14 days.

57I will further order that 8 months of the sentence imposed on Charge 2, 8 months of the sentence imposed on Charge 3, 4 months of the sentence imposed on Charge 5, and 4 months of the sentence imposed on Charge 6 be served cumulatively upon the sentence imposed on Charge 1. I will also order that all other sentences imposed on indictment and in respect of the related summary offences be served concurrently with each other and with the sentence imposed on Charge 1. Those orders render a total effective sentence of 6 years, and I will fix a non-parole period of 4 years..

58I will also order in respect of Charges 5 and 6 on the indictment, being the charges of recklessly exposing an emergency worker to risk by driving, that any licenses held by you under the Road Safety Act 1986  be cancelled and that you be disqualified from obtaining any such further license for a period of 24 months.

59Pursuant to s 18 of the Sentencing Act 1991 I will declare that you have already served 682 days by way of presentence detention and I will cause that declaration to be noted in the records of the court

60I will further declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to a total effective term of imprisonment of 8 years and I would have fixed a non-parole period of 6 years. I will cause that declaration to also be noted in the records of the court.