Director of Public Prosecutions v Ropata
[2019] VCC 1704
•17 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-18-02101
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAHI ROPATA |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2019 | |
DATE OF SENTENCE: | 17 October 2019 | |
CASE MAY BE CITED AS: | DPP v Ropata | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1704 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Ms M Altman | Tait Lawyers |
HER HONOUR:
1 Tahi Ropata, you have pleaded guilty to an Indictment containing one count of aggravated home invasion, which carries a maximum penalty of 25 years’ imprisonment; and one count of recklessly causing serious injury in circumstances of gross violence, which carries a maximum penalty of 15 years’ imprisonment.
2
Section 10AC of the Sentencing Act 1991 (Vic) requires that in sentencing an offender for an offence of aggravated home invasion, I must impose a term of imprisonment with a non-parole period of not less than three years, unless
I find that a special reason exists. Section 10 of that Act requires that in sentencing an offender for an offence of causing serious injury in circumstances of gross violence, I must impose a term of imprisonment with a non-parole period of not less than four years, unless I find that a special reason exists.
3 The circumstances in which you came to commit those offences are set out in the Amended Summary of Prosecution Opening dated 26 February 2019, which was read into evidence at your hearing (and exhibited as Exhibit A). I have had careful regard to that opening when determining the appropriate sentences in your case.
4 In the course of the plea in mitigation of penalty, which extended over a number of hearing days, the prosecution also filed the following material:
· Statement of Dr Ian Loh dated 14 June 2018 (Exhibit B);
· Email from prosecution dated 21 March 2019 (Exhibit C).
5 In the course of your plea in mitigation of penalty, your counsel filed the following material:
· Defence Written Plea Submissions dated 5 March 2019 (Exhibit 1), which was eventually replaced with Amended Defence Plea Submissions dated 21 March 2019 (Exhibit 1A);
· A psychological assessment report prepared by Ms Gina Cidoni, undated (Exhibit 2);
· A bundle of certificates (Exhibit 3), supplemented by three certificates sent to my chambers following the conclusion of the final listing of the plea, which I will receive and exhibit as Exhibit 3A;
· An additional report of MsCidoni, also undated (Exhibit 4); and
· A bundle of emailed character references (Exhibit 5).
6 I have also had careful regard to each of those exhibited documents, as well as the matters addressed in the course of the oral plea in mitigation of penalty.
Circumstances of the offending
7 Two co-accused in this matter, Corey Henning and Trista Diston, are listed to stand trial at a future date. Another co-accused, Peter Fidler, is listed for future plea. Your co-accused, Joel Conroy, who pleaded guilty to charges of aggravated home invasion, armed robbery, and recklessly causing injury, and who provided an undertaking to assist prosecutors in the pending trial, has already been sentenced by me for his role in the offending. The victim in this matter is Aaron Wood who, at the time of the offending, was aged 32 and resided at an address in Morwell.
8 In the week prior to 23 February 2018, I was told, Ms Diston was at Mr Henning’s house in Frankston North and there spoke to Mr Conroy. She told him about Mr Wood and said that Wood was likely to have drugs, money, or vehicles at this house. There was a discussion about a prior dispute between Henning and Wood. Diston wanted help with doing a “job” at Mr Wood’s house and Conroy agreed.
9 You, and Mr Fidler, were then enlisted to do the job, but I accept that it was unclear as to who enlisted whom.
10
Between 22 and 23 February, Ms Diston exchanged text messages with
Mr Conroy and Mr Henning to make arrangements for the job. Some of the messages confirmed Ms Diston seeking 0.22 calibre ammunition. Other text messages concerned all of the offenders meeting up prior to going to Mr Wood’s house.
11 On 23 February 2018, in the early hours of the morning, Ms Diston arranged to meet with the other accused outside Drouin Secondary College. Mr Conroy then drove the other four accused to Mr Wood’s house in Morwell and you arrived at about 3:10am.
12 Ms Diston left the vehicle but stayed outside the property to make observations, before reporting back to the group. You, in company with the other three male accused, left the vehicle and approached the house, forcing open the closed front gate. You were armed with a homemade shotgun. Mr Conroy was armed with a metal bar. Mr Henning had a homemade firearm, and Mr Fidler was armed with a machete. All four of you had your faces covered.
13 Mr Henning then kicked open the front door and entered the house, followed by you, Mr Conroy, and Mr Fidler. This is the offending the subject of your first charge of home invasion.
14 Ms Diston stayed outside the premises and made observations of the scene. The four of you inside the house confronted Mr Wood. Mr Henning pointed a double-barrelled shotgun in his face, then aimed it at Mr Wood’s leg.
15 Others made demands for money and drugs, which led Mr Wood to point to the coffee table, where there were containers which held cash and methylamphetamines. Mr Henning demanded to know where “the rest of it” was. Witness, Chris Beckett, was in the toilet at the house, where he was confronted and menaced by Mr Fidler.
16 Mr Conroy picked up the money on the table and turned to leave. This is the armed robbery that he was sentenced for that you have not been implicated in. As you were all walking away, Mr Henning fired the shotgun, hitting Mr Wood in the leg. Mr Wood screamed and fell to the floor.
17 Mr Wood was later taken to the Alfred Hospital (that is, on 23 February 2018), and had multiple operations as a result of the wound, culminating in the amputation of his left leg above the knee on 7 March 2018. He was discharged seven weeks later on 11 April 2018. He has required rehabilitation, including physiotherapy, occupational therapy, and amputee services, with ongoing wound review (Exhibit B). I have not been provided with a victim impact statement, but this a serious example of serious injury, which will self-evidently be of enduring effect to the victim for the rest of his life.
18 Mr Ropata, this is the offending referable to your charge 2, causing serious injury recklessly in circumstances of gross violence, namely that you had planned in advance to engage in conduct and at the time of planning, you were reckless as to whether the conduct would cause a serious injury, in connection with this serious injury. Whilst you may not have known which particular serious injury was going to be caused, you foresaw the probability of serious injury.
19
You agreed with co-offenders to go to the home of the victim and carry out a home invasion and you were aware that it was probable, as mentioned, that the offence of recklessly causing injury would be committed by your co-accused,
Mr Henning, in the course of carrying out those other offences (Exhibit C).
20 Returning to the circumstances at the scene, after Mr Wood was shot in the leg, Mr Beckett came out to find Mr Wood and called 000. You all ran out to the car, putting all of the weapons in the boot. You then left the scene and Mr Conroy drove everyone to their homes.
Investigation, arrest and interview
21 Mr Ropata, you surrendered to the Broome Police Station of your own volition on 30 March 2018 and handed yourself in to Western Australian police. You participated in a recorded interview with Victoria Police on 3 April 2018 and made admissions to the offending at the earliest time. You were extradited to Victoria the following day.
22 Henning and Diston were arrested on 5 March 2018 and Fidler was arrested on 3 May 2018. As mentioned, their matters are pending.
Plea of guilty and remorse
23 You were charged following your interview and were remanded into custody. A number of plea offers were made prior to the listing of the committal proceeding on 15 October 2018, including your offer to plead to the aggravated home invasion charges prior to the committal date.
24 The matter eventually resolved at the committal proceeding without any witnesses being cross-examined by you.
25 I accept and take into account that you pleaded guilty at an early stage and you were willing to plead to the aggravated home invasion even earlier than the point at which it resolved, which was still early and as submitted by your counsel, that this plea is indicative of your remorse, as well as having utilitarian value and saving the necessity of any witnesses being cross-examined. Those I take into account in mitigation.
Personal circumstances
26 You are now 31 years of age and were 29 at the date of offending.
27 You were born in Tasmania and raised in Launceston, the third youngest of seven children, six brothers and a sister. Your father is a boat pilot, your mother is a nurse.
28 Your parents joined a religious group and you felt that this was their focus, to your exclusion. Your father became a minister of religion.
29 You attended Perth primary school in Tasmania for two years and then you were home schooled to Year 10, based upon your parents’ religious following. You completed a traineeship at Perth Body Works in Launceston over a year.
30 You left home aged 17 and came to live in Melbourne and you completed an apprenticeship in spray painting at B&A Motor Body Repairs in Kyneton over four years. You stayed there for another six months, then you went to Lennark Pools and Spas doing painting and touch-ups, where you were employed for three years. You have largely been employed ever since, which is also to your credit.
31 Shortly after arriving in Melbourne, you entered a relationship which led to the birth of a daughter in July 2013 and a son in June 2015. You separated from their mother about three years ago after her infidelity with your best friend, and you left and went to Tasmania, then to Western Australia. You were admitted to the psychiatric ward in Launceston after your break up and you attempted suicide. You also attempted suicide later, in Broome.
32 You have also completed a Certificate III in Building.
33 At age 21, you sustained a fractured skull and you were wearing a neck brace for a period after you were discharged from hospital.
34 You told Ms Cidoni, psychologist, that after you were remanded in custody, you were deliberately confrontational with other prisoners and hoped someone would kill you (Exhibit R2).
35 You tried methamphetamine in 2012 after receiving distressing news of a boating accident in New Zealand, which led to the death of 16 of your cousins and uncles. You have used heavily since your relationship breakdown and you told Ms Cidoni of your daily use, prior to being remanded in custody.
36 You have a very modest prior criminal history, including three driving offences in Launceston that I will disregard for the purposes of this proceeding, an appearance at Frankston Magistrates’ Court in March 2014 for offences including three counts of burglary, five of theft and one of deception, for which you were sentenced to a suspended sentence, and an appearance in May 2017 for an arson charge, for which you were placed on a good behaviour bond. I accept and take into account that this is your first period of incarceration and I have been told and I accept that it has been of strong salutary effect upon you.
37 Ms Cidoni evaluated you using a number of psychological tests and described you as having a severely depressed mood, where you feel worthless and hopeless, with no motivation and no sense of a positive future. You reported sleep disturbances and difficulty making decisions and lacked interest in previously enjoyable activities. You are irritable, feel lonely and are anxious in a ruminative way. She described you as presenting with low average to average intellect, with intact cognitive function. You presented with the effects of chronic mental illness where the assessment supported a diagnosis of adjustment disorder with depression, where you are “unable to adjust to or cope with particular stressors or a major life event(s) such as his relationship breakdown” (Exhibit 2), and substance abuse disorder (now in enforced remission). I note that you have not been prescribed medication whilst in custody.
38
Ms Cidoni expressed the view that these conditions together would have the effect of impairing your ability to exercise appropriate judgment and make calm and rational choices (i.e. to think clearly). Ms Cidoni did not develop this view, nor inform me as to (to use the language of the Court of Appeal in DPP v O’Neill])[1], how any impairment might have either materially diminished your capacity to reason appropriately at the time of the offence, concerning the wrongfulness of your actions, or how your condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing. Nor was
I appraised how your ice consumption qualified Ms Cidoni’s view, given that her view is expressed as a result of the combination of your condition and drug usage.
[1](2015) 47 VR 395, [59].
39 Following my indication to your counsel that this report fell short of what was a desirable empirical basis from which a submission in reliance on Verdins principles could be grounded, an addendum report was made available to me and the matter was listed for further plea in mitigation of penalty. I will interpolate that this was before you changed legal practitioners. Ms Cidoni’s short report (Exhibit 4), reiterated her conclusion that your presentation is very concerning and the diagnosis is, “A chronic and severe adjustment disorder with depression he was(sic) affected by this condition at the time of offending, as well intoxication/abuse(sic) now in enforced remission).” I understand that no reliance has been placed by either of your Counsel on Verdins principles in the circumstances.
40 Though you have told Ms Cidoni that you were not close to your parents or siblings, I received a large bundle of references from your family members, (Exhibit R5) each of which I have read and considered so carefully. Your younger brother, Kahu, describes you as, “Always a person who would go out of his way to help someone in need. [You would often help strangers and anyone [you] perceived as less fortunate than [you]”. He speaks of how, since you have been in custody, you have exchanged letters and phone calls and he observes that, post drug addiction, you still have those caring characteristics about yourself which make you the brother that he misses and loves.
41 Your family are there to support you, I am told, and I saw, because the courtroom was full of your family members who came out and showed support to you and that spoke volumes as to your character. Kahu’s wife, Anna, also told me about having the old you back and how once you are released from custody, she wants you to move back to Tasmania and be a really big part of their lives again, to be an amazing uncle. She describes your family, (including you) as, “Incredibly selfless, hard-working, generous and honest people.” Your father also speaks of your work ethic in his reference. Your older brother, Rewi, describes you as a proud father. Craig Sparkes, the grandfather of your children, told me that you had expressed your genuine remorse to him for these matters.
42 As I have mentioned, your family were present to support you in court on the resumption of your plea with your new counsel. I take all of this into account, both as speaking to your character, aside from commission of the circumstances of your offence and also to which I will return, supportive of your prospects of rehabilitation.
43
You have completed a very impressive number of courses whilst on remand (Exhibits 3 and 3A), including units towards your Certificates II in Community Services, Cleaning, Cleaning Operations, Kitchen Operations, Certificates I in Construction and Access to Vocational Pathways and the courses, Take
Stock A, Take Stock B and Adapt, conducted in connection with Relationships Australia. You volunteer as a peer educator, which includes responsibilities in educating others not to take drugs in prison and minimising risk if they do take drugs. You have completed an extended (12 hour) course in substance use and a course in healthy lifestyle. You have received certificates for your participation in Waitangi Day 2019.
Prospects of rehabilitation
44 Given your very limited previous criminal history and the matters to which I will return, I am prepared to assume that your prospects for rehabilitation are good and will improve, should you continue to avail yourself of the rehabilitative courses available in custody. And when I come back to the purposes of sentencing, I will revisit that topic.
Mandatory minima
45 I have previously mentioned that s 10AC of the Sentencing Act obliges me to impose a term of imprisonment with a non-parole period of not less than three years, unless I find under s 10A of that Act that a special reason exists. Also, under s 10 of the Act in relation to Charge 2, I must impose a term of imprisonment with a minimum of not less than four years, unless I find under s 10A that a special reason existed.
46 Your initial counsel and subsequent counsel both acknowledged that I am bound by these sections. In DPP (Vic) v Hudgson ,[2] the Court of Appeal observed that it was clearly Parliament’s intention to impose a heavy burden on offenders seeking to establish a “special reason” to depart from the statutory minimum non-parole period, particularly for causing serious injury in circumstances of gross violence, and that this burden could not be lightly discharged.
[2][2016] VSCA 254, [111].
47 For the purposes of s 10A, impaired mental functioning means:
· a mental illness within the meaning of the Mental Health Act 1986 (Vic); or
· an intellectual disability within the meaning of the Disability Act 2006 (Vic); or
· an acquired brain injury; or
· autism spectrum disorder; or
· a neurological impairment, including but not limited to dementia. [3]
[3]Sentencing Act 1991 (Vic), s 10A(1)
48 You bear the onus of proving, with clear and convincing evidence, that your mental functioning was impaired at the time you committed the offence.[4]
[4]Hudgson [2016] VSCA 254, [113]-[114].
49 As I understand it, whilst your earlier counsel lightly submitted that I should find that the combination or your age, your lack of previous violent history, Ms Cidoni’s diagnosis (the issues which I have already noted), notwithstanding your surrender into custody to West Australian Police after you left the jurisdiction, your cooperation in your police interview and admission of presence at the scene and your plea of guilty, should lead to my finding special reasons not to impose the mandatory minimum sentence in relation to these two counts. You then instructed fresh counsel, who candidly accepted that this burden could not be met in the circumstances. In my view, this concession was sensibly made for two reasons. Your earlier counsel’s submission was not supported by the legislation or case law and I am therefore unable to find that those special reasons existed. But further and separately, were I to go less than those statutory minimum, I would be imposing a sentence that was manifestly inadequate. I am obliged to impose at least the minimum period before parole eligibility provided by those sections and I lack any discretion in that regard.
Seriousness of offending
50 Mr Ropata, you were armed with a home-made shotgun when you entered the house. You were not a direct participant in the violence inflicted upon Mr Wood in his home, but you were there to provide the threat of violence, if called upon by others (Exhibit C). As you may remember, your first counsel initially sought to submit that your state of knowledge at the time of offending was that you did not know if the firearm you were carrying, or the other firearm, was loaded. In other words, the submission did carry the risk of traversing your plea of guilty to recklessly causing serious injury in circumstances of gross violence. Your subsequent counsel, also sensibly, did not contend this to be the case and accepted that, by your plea, you accepted that you planned in advance to engage in conduct and at the time of planning, you were reckless as to whether the conduct would cause a serious injury. The only serious injury that could be within contemplation was the risk that the victim would be shot or otherwise seriously assaulted, and by your plea, you accept that you entered the victim’s own house, foreseeing the probability that your conduct would cause him serious injury, which indeed it did, however your plea is made with the benefit of remorse, contrition, and now reflection.
51
The invasion occurred in the early hours of the morning, in company and disguise, and involved weapons. The offending was planned and deliberate. You were enlisted to assist Mr Henning and others in their purposes and whilst you did not seriously injure anyone yourself, you acted as in support of
Mr Henning.
52 I consider this offending to be a serious example of each of the two charges, and as I have mentioned, each charge obliges me to impose prison terms.
Sentencing principles
53
As I have noted, Mr Conroy has pleaded guilty to charges including aggravated home invasion, armed robbery and recklessly causing injury. I imposed four years and three months; two years and three months; and one year and nine months’ imprisonment respectively upon those charges and made orders for cumulation, such that the total effective sentence was four years and
10 months’ imprisonment, with a minimum of two years and 10 months before parole eligibility. Whilst he faced one charge in common with you (aggravated home invasion), Mr Conroy’s circumstances were different, in that he had indicated his willingness to cooperate with authorities in the pending trial of a
co-accused from an early stage, and has given me his sworn undertaking to do so. I found in his case that special circumstances existed which released me from the obligations imposed by s 10AC in sentencing him upon the charge of aggravated home invasion.
54 Whilst I have had regard to the parity principle in sentencing you for that shared offence of aggravated home invasion, I consider that there are substantial differences in your case, given that Mr Conroy availed himself of the substantial mitigatory value associated with his cooperation. Self-evidently, you have separately pleaded guilty to a more serious assault than the one to which he pleaded guilty, though you did not have any involvement in the offence of armed robbery.
55 I have had careful regard to the totality principle in considering the extent to which the sentences I must impose require cumulation.
56 I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and specific. I accept that the gravity and prevalence of the offences of aggravated home invasion and recklessly causing serious injury, require a conclusion that general deterrence is one of the primary sentencing purpose. Whilst I consider that some specific deterrence is needed in your case, as I have mentioned, I consider in all of the circumstances that your prospects for rehabilitation are good, given your early acceptance of responsibility, your age of 31, which, as urged upon me by your subsequent counsel, shows your capacity for mature decision-making, (notwithstanding this terrible event) your relatively modest previous criminal history, the fact that this is your first period in custody (which will necessarily be lengthy and which, I am told, has had a substantial salutary effect on you), your very considerable interest in abstaining from drug use, and in particular, your continued support from a family for whom drug taking is not accepted. So, in other words, I accept the submission made by your counsel.
57 Indeed, I consider that this serious offending is not generally within the character of the person that your family has described in their many references, which, as I have told you, I have attached significant weight to. The simplest explanation for this offending, so serious and largely out of character, is your use of drugs. It is your responsibility to remain free from the terrible effect that the drugs have had upon you, which motivated you to do something so serious and so out of character. As submitted by your counsel, the cause of your offending can be treated, should you be willing to engage and benefit from that treatment, which your time on remand suggests, is well within your hard-working capacities.
58 The sentences I will impose will punish you and denounce your behaviour and allow for community protection, whilst allowing for your continued efforts at rehabilitation.
Sentence
59 On Count 1, aggravated home invasion, you are convicted and sentenced to six years and six months' imprisonment.
60 On Count 2, recklessly causing serious injury in circumstances of gross violence, you are convicted and sentenced to five years and six months' imprisonment, 18 months of which I will order be served cumulatively upon the sentence imposed on Count 1.
61 This is a total effective sentence of eight years' imprisonment and I order that four years and nine months of that term be served before parole eligibility.
Section 6AAA declaration
62 Pursuant to s 6AAA of the Sentencing Act I declare that, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to 10 years' imprisonment.
63 Pre-sentence detention, I am told, is 566 days, excluding today, is that correct?
64 COUNSEL: Yes, Your Honour.
65 HER HONOUR: Yes, thank you very much.
66 Now, and also I have been asked to make an order under s 464ZF for a scraping of the mouth. Ms Altman, I cannot imagine that that order would be opposed in the circumstances.
67 MS ALTMAN: No, Your Honour.
68 HER HONOUR: Thank you, I think that is very sensible.
69 Having considered the seriousness of the circumstances of the forensic sample offences, upon which I have sentenced the accused, I am satisfied the making of the order is justified, as the seriousness of the circumstances of the offender warrant the order and that the order is not opposed.
70 MR PICKERING: If it pleases Your Honour.
71 HER HONOUR: Yes, thank you. Are there any other orders sought or matters - - -
72 MR PICKERING: No, Your Honour.
73 HER HONOUR: All right, thank you. I have made that order.
74 MS ALTMAN: Your Honour, if I might.
75 HER HONOUR: Yes.
76 MS ALTMAN: I didn't make a note of - in Your Honour's 6AAA declaration, I didn't have a note of the non-parole period.
77 HER HONOUR: I do not know that I am obliged to impose a non-parole period.
78 MS ALTMAN: I have had experience of it, but thank you, Your Honour.
79 HER HONOUR: Yes, thank you very much. Thank you. Thank you, I will stand down and reconvene in three minutes' time.
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