Director of Public Prosecutions v Tahere
[2023] VCC 648
•27 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TĀNE TAHERE (A pseudonym) |
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JUDGE: | Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2023 | |
DATE OF SENTENCE: | 27 April 2023 | |
CASE MAY BE CITED AS: | DPP V Tahere | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 648 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: possess traffickable quantity firearms – burglary – theft of firearm – theft – theft of motor vehicle – prohibited person possess firearm – possess drug of dependence – possess counterfeit money – handle stolen goods – Bugmy principles – Verdins principles – prospects of deportation
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Verdins v R [2007] VSCA 102; Sabbatucci v The Queen [2021] VSCA 340; Boulton v R (2014) 46 VR 308
Sentence: Convicted and sentenced to an aggregate term of imprisonment of 12 months, with a Community Correction Order of 30 months with 260 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Willem Drent | Office of Public Prosecutions |
| For the Accused | Mr Nicholas Rolfe | Rolfe Criminal Law |
HER HONOUR:
Introduction
1Tāne Tahere,[1] you have pleaded guilty to one charge each of possession of a traffickable quantity of firearms (charge 1), burglary (charge 2), theft of firearm (charge 3), theft (charge 4), being a prohibited person possessing a firearm (charge 7) and possessing counterfeit money (charge 10), and two charges each of theft of a motor vehicle (charges 5 and 6), possessing a drug of dependence (charges 8 and 9) and handling stolen goods (charges 11 and 12).
[1] A pseudonym.
2You have also consented to this court hearing, and pleaded guilty to four related summary offences being one charge of possession of a prohibited weapon (related summary charge 11), one charge of possession of cartridge ammunition (related summary charge 12), and two charges of committing an indictable offence whilst on bail (related summary charges 17 and 18).
3The maximum penalty for each of the offences are as follows:
(a) theft of firearm – 15 years’ imprisonment or 1800 penalty units;
(b) handling stolen goods – 15 years’ imprisonment;
(c) possession of a traffickable quantity of firearms, and being a prohibited person possessing a firearm – 10 years’ imprisonment or 1200 penalty units;
(d) burglary, theft (including theft of motor vehicle), and possession of counterfeit money – 10 years’ imprisonment;
(e) possession of a prohibited weapon – 2 years’ imprisonment;
(f) possession of a drug of dependence where not committed for the purpose of trafficking – 1 year imprisonment or 30 penalty units;
(g) committing an indictable offence whilst on bail – 3 months’ imprisonment or 30 penalty units;
(h) possession of cartridge ammunition – 40 penalty units; and
(i) possession of not more than a small quantity of cannabis where not possessed for the purpose of trafficking – 5 penalty units.
Circumstances of the Offending
4The circumstances of the offending for which you fall to be sentenced are set out in the succinct Prosecution Opening upon Plea which was tendered as Exhibit A.
5As detailed in that document, in the early hours of the morning on 7 May 2022, two male offenders attended at an address in Bacchus Marsh which was the home of Ms Reyes[2] – the victim in this matter. The males attended the address in a vehicle bearing false registration plates. They were captured on CCTV footage walking around the premises and turning off the power at the meter box. They then re-attended at the property some hours later and knocked on the front door of the premises which woke Ms Reyes up. Ms Reyes spoke to one of the offenders at the back door before they returned to their vehicle and left the property. It is not alleged that you were one of the persons who attended at Ms Reyes’s home on 7 May 2022.
[2] A pseudonym
6On 31 May 2022, Ms Reyes and her family left their home in Bacchus Marsh, and went on holidays in Queensland. They had organised for a person to attend at the property twice per day whilst they were away to care for the animals. When the carer attended at the property on the morning of 13 June 2022, she noticed that the floodlights attached to the house were no longer on, and both a Ford Ranger and a Toyota Hilux were missing from the property. The carer notified Ms Reyes who asked her to investigate further. Upon further investigation it became apparent that the monitor for the CCTV cameras had been turned off, the door from the house to the garage had been jemmied open, and inside the house lamps were off, drawers to cabinets were open and the power was switched off (charge 2 – burglary).
7Numerous items were stolen from the property including:
(a) Four shotguns, four rimfire rifles, one air rifle and one centre rifle (charge 3 – theft of firearm, and charge 1 – possession of a traffickable quantity of firearms);
(b) two firearm safes, two Nikon cameras, passports, various jewellery, Qantas cards, an apple iPhone, a vehicle key to a 2016 Porsche 911 coupe, and various power tools (charge 4 – theft);
(c) a 2019 Ford Ranger utility (charge 5 – theft of motor vehicle); and
(d) a 2013 Toyota Hilux Utility (charge 6 – theft of motor vehicle).
8A number of empty alcohol bottles, gloves and other items found at the scene were seized for forensic analysis. Investigations by the police subsequently identified you and another man, Johann Remy,[3] as possible suspects.
[3] A pseudonym.
9On Monday 20 June 2022, police attended at your address, seized a number of items and arrested you. Amongst the items located at your address were the following:
(a) one of the gun safes which had been stolen from the Reyes’s home;
(b) one of the stolen firearms (charge 7 – prohibited person in possession of a firearm);
(c) identity documents and a mobile phone belonging to the victim and her family;
(d) two lots of cannabis consisting of 5.8g of cannabis in a clear resealable bag; and less than 1 gram of cannabis in a foil packet (charge 8 – possess drug of dependence);
(e) a ziplock bag containing white crystal substance (methylamphetamine) (charge 9 – possess drug of dependence);
(f) a counterfeit $100AUD note (charge 10 – possession of counterfeit money);
(g) stolen registration plates (charge 11 – handling stolen goods);
(h) a 2015 Yamaha motorcycle (charge 12 – handling stolen goods);
(i) an extendable baton (related summary charge 11 – possession of a prohibited weapon); and
(j) cartridge ammunition (related summary charge 12 – possession of cartridge ammunition without a license).
10You were later interviewed by police and made full and frank admissions to committing the burglary and stealing multiple items, including the firearms safes and firearms, with the co-offender. You also made admissions to being involved in stealing the vehicles, driving the black ute, knowing the motorbike found at your house was stolen and having been told not to use the registration plates also located at your house. Additionally you admitted to owning the drugs located at your home. In relation to the gun located at your house, you admitted it was from the burglary and that you had intended to sell it, however you said that you had pulled out of a planned sale as you did not know the background of the person you were going to sell it to and did not want it to end up in the wrong hands.
11At both the time of committing the burglary and theft at the Reyes’s home, and when your home was searched on 20 June 2022 you were on bail. Accordingly on each date you also committed an indictable offence whilst on bail (related summary offences 17 and 18).
12After being interviewed you were remanded in custody, and have remained in custody since that date. Accordingly you have 312 days of pre-sentence detention available to you in respect of this offending.
Victim Impact
13Ms Reyes provided a victim impact statement to the Court which outlined the significant impact which the offending on both 7 May 2022 and 13 June 2022 have had upon her and her family. As I identified during the plea hearing, it is not alleged that you were in attendance at Ms Reyes’s property on 7 May 2022, and accordingly the impact of the offending committed on that day is not attributable to you and I cannot, and have not, taken it into account in sentencing you. However, I have taken into account the significant impact of the offending on 13 June 2022.
14In her detailed statement, Ms Reyes described her ongoing fear that yourself, and the other co-accused who burgled her property, will return to her home again in the future. This fear is compounded by the fact that amongst the items stolen are multiple firearms which have not been recovered. Ms Reyes stated that she no longer feels safe in her home – a home which, when she and her family moved into it, was their dream home and was intended to be a place where they would be able to enjoy the solitude, peace, tranquillity and flora and fauna over an extended period of time. Now her home is a place where she feels unsafe and lives with the constant fear that she and her family will be robbed again. She noted that her husband, and her sons who are only 19 and 21 years of age, also worry about leaving her at home alone. Moreover, items of immense personal value to Ms Reyes (including her deceased mother’s wedding rings, which she was going to hand down to future daughter-in-laws) were stolen during the robbery. These items can never be properly replaced given the sentimental value which they held. In summary, the offending has impacted Ms Reyes’s sleeping patterns, her mental health, and her ability to enjoy her home and social life.
15I accept that the impact of your offending on Ms Reyes and her family has been significant and I take that into account in sentencing you.
Prior Convictions
16As identified by the prosecution you do have a relevant prior criminal history.
17The criminal history before the court commences with a series of driving offences (including one mid-range drink driving offence) committed by you when you were between 19 and 20 years of age and living in New South Wales. However of greater significance are the matters which you were dealt with from 2005 onwards in Victoria.
18In 2005, as a 26 year old, you were sentenced for two armed robberies for which you received a term of imprisonment of 30 months with a non-parole period of 10 months; and a robbery for which you received a term of imprisonment of 7 months wholly suspended for a period of 18 months.
19In May 2009, as a 29 year old, you received a further sentence of 2 months suspended for 12 months for an attempted burglary.
20In November 2011, as a 32 year old, you were sentenced (on appeal) to a total effective sentence of 5 years imprisonment with a non-parole period of 2 years and 9 months for armed robbery, intentionally cause injury and false imprisonment. At the time of sentence on the appeal you had 673 days of pre-sentence detention. I note that in respect of this sentence and the earlier lengthy sentence you were granted parole and successfully completed it.
21The next time you came before the court after that lengthy sentence was in August 2017. On that occasion you were sentenced in relation to a consolidation of charges including criminal damage, unlawful assault, a number of dishonesty offences and failing to answer bail and received a community correction order for a period of 16 months. You ended up breaching that order by committing further dishonesty, drug, driving and bail offences for which you received a term of 120 days imprisonment. You were also sentenced to 174 days time served for breaching the order.
22In June 2020, as a 40 year old, you again committed a set of dishonesty, drug and bail offences, and were sentenced to 62 days imprisonment time served. Then in December 2021, in respect of offences of burglary, theft, committing an indictable offence whilst on bail and attempting to obtain property by deception you were placed on an adjourned undertaking for a period of 12 months with a special condition that you engage with your general practitioner and any other clinician to whom you were referred by your GP. Accordingly, at the time of committing the current offences you were in breach of that undertaking.
23As already noted, you were also on bail at the time of the current offending. The offences to which that bail related – burglary, theft and going equipped to steal – are currently listed in the Magistrates’ Court and are awaiting the outcome of this matter before being finalised.
24As can be seen from the matters which I have just recited, your criminal history is lengthy and contains numerous serious offences of a similar type to the matters which you now face. It also reflects your longstanding issues with drugs and alcohol which I will address later in these reasons, and the difficulties which you face when you relapse into drug use. Accordingly, your criminal history is relevant when assessing the weight to be given to specific deterrence, denunciation, community protection and rehabilitation in the sentencing synthesis.
Gravity of the Offending
25As submitted by prosecuting counsel and acknowledged by your counsel, the offending which brings you before the court on this occasion is also serious offending.
26You were involved in a burglary, and the theft of ten firearms, only one of which was recovered. You were also involved in the theft of multiple other items from the property some of which were of monetary value and others of sentimental value to the victims including two vehicles and jewellery.
27At the time of the offending, you were not only a prohibited person by reason of your prior criminal history, you were also on bail, and in breach of a court-imposed adjourned undertaking.
28There is also evidence of some limited level of planning on your part in that you admit in your record of interview that you wore gloves whilst inside the property. However given it is not alleged that you were one of the offenders who attended at the property on 7 May 2022, in my view, the level of pre-planning and sophistication shown on your part cannot be said to be high.
29Overall, your offending in respect of the dishonesty and weapons offences is both objectively and subjectively serious given your prior criminal history.
30By contrast, the drug offences which you face are minor – with the amount of drugs in your possession being both minimal in quantity, and in your possession for personal use.
Guilty Plea and Remorse
31You pleaded guilty to the charges before this court at an early stage. Your matter was listed for a submissions only contested committal on 3 November 2022, but was adjourned to allow the prosecution to consider a plea offer which you had made. The matter subsequently resolved and you indicated an intention to plead guilty to the current charges at a committal mention on 1 December 2022. The matter was then listed for a plea hearing in this court on 18 April 2023.
32Your plea is significant for a number of reasons. Firstly, you have saved all of the witnesses, and in particular the victims, from the ordeal of having to give evidence at a committal hearing or trial in respect of the charges against you. Secondly, your plea facilitates the course of justice and has significant utilitarian value. The value of your plea is elevated by the fact that it has been entered during a period when the pandemic is still having a considerable impact on the efficient running of the criminal justice system. Thirdly, I accept that your plea, when taken in combination with your full and frank admissions to police and your discussions with Ms Panthanki who prepared a Community Correction Order Assessment Outcome Report in this matter, demonstrates both remorse and an acceptance of responsibility for your conduct.
33Accordingly, I have given you a substantial discount on sentence for your plea of guilty.
34I note as a matter of completeness that your co-accused Mr Remi has also pleaded guilty to a number of offences and is currently awaiting a plea date in the drug court. Given he has not, as yet, been sentenced, the issue of parity does not arise in sentencing you today.
Personal Circumstances
35You were born in New Zealand and are of Maori descent. You are the youngest of six children born to your mother and father, and your childhood and upbringing can only be described as traumatic and deprived.
36Your father was a fisherman by trade. Tragically he became tangled in a fishing net and drowned when you were only five years of age. Your mother was so traumatised by his passing that she left the family home and did not return until you were seven years of age. One of your older sisters took care of you during this period.
37After your mother returned to the household you were regularly subjected to physical abuse by your mother and brothers and were often left unsupervised. There were often parties in the home and you started drinking alcohol on a daily basis from seven years of age onwards as it made you feel better. At eight years of age you were involved in a major motorcycle accident on the family farm. You were not wearing a helmet and sustained lacerations to your skin. You report that you were bedridden for weeks and did not receive proper medical assistance.
38Then from nine years of age through to 13 years of age you were sexually assaulted by your stepfather’s brother. When you disclosed this abuse to your mother, she gave you a hiding and within a week arranged for you to travel to Sydney and live with an uncle in Bankstown.
39Your life did not improve when you moved to live with your uncle. You had managed to complete grade 6 at school before leaving New Zealand but never enrolled in high school when you arrived in Australia. Your uncle was abusive and was often absent from the home. He would not allow you to remain in the house when he was not there and as a result you would often have to break into a garage on the property to obtain some shelter in his absence.
40You had started using cannabis a year before you moved to Australia, having been introduced to it by your uncles in New Zealand. Perhaps unsurprisingly given the level of trauma you had experienced up to the point, and the conditions you faced when you were in Australia, you commenced using multiple other drugs once you arrived in Australia. You started using methamphetamine and ecstasy and were using these drugs together with cannabis on a regular basis.
41Whilst you were still a teenager both your mother and your father were diagnosed with cancer. Your stepfather, who you liked and had had a decent relationship with, died when you were seventeen years of age. You returned to New Zealand for the funeral, before heading back to New South Wales. You then returned to New Zealand again to discover that your mother had sold the home and moved to her family property where she was living off grid in a caravan in a paddock. Shortly after you arrived there, your mother left the property. You remained on the property for some 18 months before again moving back to Australia to live near your mother who was now residing in Sydney with one of your sisters. Your mother died a short time later when you were only nineteen years of age. It was also around this time that you were both involved in a severe motor vehicle accident where you collided with the side of a wharf and hit your head, and attempted suicide for the first time by way of an attempted overdose.
42Following your mother’s death and your accident, you obtained work as a painting contractor and travelled to various places including Gold Coast, Bendigo and Geelong to undertake painting jobs. In 2004 you moved to Victoria and lived with your brother and his partner in Bentleigh for 12 months. It was whilst you were in Victoria that you met your former partner Natasha[4] and formed a relationship. You had a son together in 2006 and a daughter in 2009. They are now 13 and 16 years of age respectively and have both been placed in the care of one of your sisters. You and Natasha separated when you went to prison in 2010 and the relationship never got back on track after your release. You also continued your work as a painter until you were imprisoned in 2010.
[4] A pseudonym.
43Following your release from prison you started working in a cold storage facility at Laverton with one of your brothers. You also obtained some work in security, concreting and solar panel installation. This work continued until the Covid lockdowns commenced in 2020. You met your current partner, Daisy,[5] in 2018 and she has remained supportive of you throughout your difficulties with Natasha, child protection and the law.
[5] A pseudonym.
44When you were released from custody after your terms of imprisonment in 2005 and 2011 you felt confident that you would be able to abstain from drug use, however you ultimately relapsed as you were around other drug users. You similarly relapsed after release from your most recent term of imprisonment in 2020.
45At the time of the current offending, you instruct that you were again under the influence of drugs and alcohol and on a downward spiral with your mental health. You were struggling with a number of family matters which included your former partner placing your children at risk through her association with a known sex offender, and the interventions being put in place by child protection.
Mental Health Issues and Cognitive Functioning
46You were assessed by psychologist, Ms Gina Cidoni, for the purposes of the plea, and I was provided with a report dated 10 January 2023. Ms Cidoni assessed you over three appointments on 29 November 2022, 3 January 2023 and 10 January 2023. She administered a number of tests relating to intellectual function, neuropsychological status, trauma, borderline personality disorder and risk of re-offending.
47The results of the various tests identified that:
(a) your verbal reasoning abilities are in the extremely low range and above only 1% of your peers in this area;
(b) your ability to sustain attention, concentrate and exert mental control is in the borderline range and above only 4% of your peers in this area;
(c) you have a reduced capacity for verbal learning with a score falling in the second percentile (borderline range);
(d) you have major difficulties with recognition and retrieval of information from longer-term memory stores with a score falling in the first percentile;
(e) you are well below average in auditory registration, processing speed and semantic fluency indicating deficits in executive functioning;
(f) you have symptoms of trauma including depression, intrusive experiences, dissociation and suicidality as well as avoidance and arousal symptoms;
(g) you are above the clinical cut-off for meeting the diagnostic criteria for borderline personality disorder; and
(h) you fall into risk category 7 using the Violence Risk Assessment instrument – a category where approximately 55% of the development sample for the instrument reoffended violently within 7 years. Ms Cidoni stated that risk factors included your disrupted attachment with your biological parents, elementary school maladjustment, your history of alcohol and substance problems, relationship status, criminal history and age at the time of the index offending. However, she noted that some of these risk factors are amenable to treatment and can be managed through a combination of psychoeducation, psychological intervention and psychotropic medication.
48Based on your history, the results of the psychometric testing and her clinical evaluation of you, Ms Cidoni proffered the following opinions as to your psychological, behavioural and cognitive functioning and it’s interaction with your presentation and offending behaviour:
(a) you have a history of psychosocial adversity with your early home life being characterised by exposure to drugs and alcohol, the traumatic death of a parent, neglect, and domestic and sexual abuse. As a result of these conditions and your environment, your offending behaviour developed early;
(b) you have intellectual challenges which may be congenital in origin. Your low intellect influences your thinking and behaviours, and limits your executive and self-regulatory abilities causing problems with impulse control and connecting cause and effect;
(c) you appear to suffer from generalised anxiety, depressed mood and have signs of post-traumatic stress disorder. You also suffer from chronic substance use disorder (currently in enforced remission);
(d) your traumatic history, including the death of your parents and the abuse inflicted upon you, have contributed to chronic affective instability in adulthood, with you having heightened emotional sensitivity, impulsivity, and emotional and cognitive avoidance. Your current presentation has direct links to your past stress and trauma with symptoms including chronic sadness, hopelessness, restlessness, a sense of dread, feeling constantly on edge, overwhelmed, difficulty concentrating, irrational thinking and slowed cognitive performance. In Ms Cidoni’s opinion, the adversity you describe amounts to major social disadvantage similar to that described in Bugmy v The Queen.
49Additionally, in Ms Cidoni’s opinion you have impairments in your ability to exercise appropriate judgment, make calm and rational choices, to think clearly; and control your behaviour. Further, she is of the view that the conditions and symptoms of your depression and post-traumatic stress disorder have likely contributed to and exacerbated your substance use problem. In Ms Cidoni’s opinion your presentation is a causal factor in your offending in that your conditions cause neurocognitive dysfunction and behavioural effects relating to erratic, impulsive acts, and clouded judgment.
50Ms Cidoni is of the view that prison will intensify your symptoms of mental illness and that you have limited resources to cope with your mental health conditions. Further she is of the view that you require assistance on release including residential drug treatment, further assessment of your cognitive function via neuropsychological testing to determine if you meet the criteria for an intellectual disability or acquired brain injury, and psychological and psychiatric interventions to assess, manage and treat your mental health, trauma and drug abuse issues.
51Finally, Ms Cidoni confirmed that in her opinion your risk of re-offending is high based on your criminal history and psychosocial adversity. However, she noted to your credit that you have demonstrated insight into your maladjustment and reported a desire to engage in appropriate support services to reform your lifestyle and be there for your children. She noted that if you were to engage in appropriate treatment then your risk of re-offending would be reduced.
Relevance of Deprived Background and Mental Health Issues to Sentence
52Mr Rolfe, on your behalf, submitted that the significant trauma and destabilisation which you endured throughout your childhood and adolescence had the effect of substantially affecting your childhood and that, in the circumstances, the principles in Bugmy v The Queen (2013) 249 CLR 571 apply. He submitted, relying upon Ms Cidoni’s report, that the impact of your deprived childhood has not diminished over time, and that your experiences are relevant to an evaluation of your moral culpability in this case.
53Further, Mr Rolfe submitted that your mental health issues enliven the principles in Verdins v R [2007] VSCA 102. In particular he submitted that your mental health issues impact upon your moral culpability, affect the weight to be given to general and specific deterrence, and serve to make your time in custody more burdensome than it would be for someone without those same conditions.
54Mr Drent on behalf of the prosecution accepted that the principles in Bugmy apply in your case and further conceded that some of the principles in Verdins are enlivened to a limited extent. Mr Drent agreed that your moral culpability is moderated to some degree by reason of both the principles in Bugmy and Verdins and that there is a basis for some reduction in the weight to be given to general and specific deterrence. However, he queried Ms Cidoni’s opinion in respect of the impact of imprisonment upon your mental health in circumstances where she did not seem to have addressed how your mental health had fared previously when you undertook lengthy periods of imprisonment.
55In Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability – the first is a generalised way – not requiring any causal link – where the circumstances of deprivation may mitigate sentence because the offender’s moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that same way. The second is more specific and requires a causal link between the circumstances of the deprivation and the offending conduct.[6] Whilst the High Court observed in Bugmy that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, there is not a requirement that childhood deprivation must be ‘profound’ before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability.[7] As stated in Sabbatucci v The Queen [2021] VSCA 340:
whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[8]
[6]Bugmy at pp 494-495. See also Newton (a pseudonym) v The King [2023] VSCA 22 at [36]-[46].
[7]See, eg, Newton (a pseudonym) v The King [2023] VSCA 22, [37].
[8]At [6].
56Turning to the principles in respect of the relevance of mental health issues in sentencing, in Verdins the Court held that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at least six ways:
(i)the condition may reduce the moral culpability of the offending conduct as distinct from the offender’s legal responsibility;
(ii)the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it is served;
(iii)whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(iv)whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;
(v)the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and
(vi)where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
57I accept that the principles in Bugmy do apply in your case. Your traumatic experiences throughout your childhood have played a role in shaping your behaviour and responses, and have also been a major contributing factor in the development of your alcohol and drug issues – which in turn have been a major factor in your offending both in the past and in relation to the offences currently before the court.
58I also accept that some of the principles in Verdins apply in your case. I accept Ms Cidoni’s opinion that your cognitive functioning and mental health issues impact upon your ability to exercise appropriate judgment, make calm and rational choices, to think clearly and control your behaviour, and further that they cause neurocognitive dysfunction and behavioural effects relating to erratic, impulsive acts and clouded judgment. I also accept that you have trauma symptoms and symptoms of depression, both of which are currently impacting on you in custody.
59Accordingly, I am satisfied that the combination of the impact of your deprived childhood and of your mental health and cognitive issues upon you, do reduce your moral culpability to a moderate degree. Furthermore I am also satisfied given the impact of your mental health and cognitive issues upon you at both the time of offending and currently, that there should be some limited moderation of the weight to be given to general and specific deterrence as sentencing purposes, and some recognition of the fact that your conditions will make your time in custody more burdensome than for someone without those same conditions.
60It is, however, also of importance that your underlying issues are addressed, as without treatment it is unlikely that rehabilitation or long term community protection will be achieved. You have shown interest in pursuing treatment and education opportunities whilst in custody, with you having undertaken a number of courses in areas such as drug and alcohol rehabilitation, anger reduction, positive parenting, traffic control, and civil construction skills. You are currently prescribed both mirtazipine (an anti-depressant) and buvidal (a long-acting injectable buprenorphine), and have been taking both regularly whilst in custody. I am told that you are keen to continue with treatment upon release into the community.
61You also presented to both Ms Cidoni and Ms Panthaki as someone who has a desire to engage in appropriate services on an ongoing basis. Whilst you have a significant prior history and a multitude of underlying issues, given your current commitment to effecting change, I am of the view that you do have prospects for rehabilitation, although those prospects are somewhat guarded and dependent upon your continued engagement in treatment in the community.
Impact of Covid-19 and Prospects of Deportation on Burden of Imprisonment
62In determining the length and type of sentence to be imposed, Mr Rolfe also submitted that I should take into account that the burden of imprisonment upon you has been increased by reason of the Covid-19 restrictions which have been in force whilst you have been on remand, as well as the stress and concern which you have faced over the possibility of you being deported if a term of imprisonment of more than 12 months is imposed upon you when you are sentenced for these offences. Mr Drent did not take issue with this submission.
63I am satisfied that in your case your time in custody on remand has been made more burdensome by reason of both of these factors and I do take this into account in your favour.
64Whilst it was initially submitted on your behalf that I could also take into account the fact that a term of imprisonment of more than 12 months is likely to result in your deportation and will cause significant hardship to you and your family, there is no clear evidence that you will definitely be deported upon the imposition of sentence in this case – even if the term of imprisonment imposed exceeds 12 months. At this stage, such an eventuality is speculative. However, as I have already noted, I accept that the prospect of such an eventuality is something which has caused you stress and anxiety, especially in circumstances where the majority of your family, including your children (who are now 13 and 16) and your current partner, live in Australia, and the mother of your children is also currently serving a term of imprisonment.
Submissions on Sentence and Availability of a Community Correction Order
65Mr Rolfe submitted on your behalf that, in respect of the state offences, a term of imprisonment of no more than 12 months in combination with a community correction order would be an appropriate sentencing disposition in this matter given the various mitigating factors including your plea of guilty and the impact of your childhood trauma upon you. He further submitted that a bond would be an appropriate penalty for the Commonwealth offence of possession of the counterfeit note.
66Mr Drent, on behalf of the prosecution, submitted that the only appropriate disposition in this case is a term of imprisonment. However he submitted that the manner in which that term of imprisonment is to be served, including whether it can be served in combination with a community correction order, is a matter for the court.
67I note that neither counsel put forward any submission in respect of current sentencing practice or comparable cases. I was also unable to find any cases which were comparable to yours in terms of both the combination of offences and personal circumstances of the offender. I have however had regard to current sentencing practices in respect of each of the offences for which you come before the court and also had regard to the manner in which sentencing principles in respect of each type of offence are applied.
68Given the submissions made by each counsel, I had you assessed for a community correction order, whilst making it clear that I had not determined whether a combination disposition would be open in the current case.
69As I have already noted, you were assessed by Ms Panthaki from Community Corrections for your suitability for such a disposition. Ms Panthaki ultimately assessed you as being suitable for such an order, noting that you engaged openly and politely throughout the assessment, acknowledged your offending conduct, and were able to reflect on the significant impact which your offending has had upon the victim in this matter. Ms Panthaki confirmed that it would be appropriate for you to have various conditions attached to any such order, including conditions for community work, supervision, treatment for drug and alcohol issues, programs to reduce reoffending and judicial monitoring.
70I also received a report from Mr Lane from the Mental Health Advice and Response Service which recommended a mental health condition be placed on any community correction order imposed in order to promote your wellbeing and reduce the likelihood of you re-offending. Mr Lane also proffered the view that your current mental state would not impede your ability to engage in an order.
71In sentencing you it is imperative that the seriousness of the offending – and in particular the gravity of the charges pertaining to the theft and possession of the firearms is reflected in any sentence I impose. However I must also take into account the principles of totality and parsimony when determining the appropriate sentence in this case. In particular, the principle of parsimony in this case requires me to assess whether all of the sentencing purposes can be met in this case by imposing a term of imprisonment in combination with a community correction order, or whether the only appropriate disposition is a term of imprisonment consisting of a head sentence and a non-parole period.
72Having carefully considered all of the various sentencing considerations raised by this case, I am of the view that despite the seriousness of your offending, all of the sentencing purposes can be achieved in this case through the imposition of an aggregate term of imprisonment on charges 1, 3 and 7 being the charges relating to the theft and possession of the firearms, and a lengthy community correction order with a community work component as well as treatment conditions on the remaining offences (except for the Commonwealth offence and the possession of cannabis).
73As identified by the Court of Appeal in its guideline judgment of Boulton v R (2014) 46 VR 308:
…a CCO 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 involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[9]
[9] At [131].
74I am of the view that in the present case, a term of imprisonment is necessary to reflect the gravity of the firearms offences and the need to give substantial weight to the sentencing purposes of general and specific deterrence (albeit moderated), denunciation and community protection. However a community correction order in respect of the remainder of the offences can be appropriately tailored to not only meet the sentencing purposes of rehabilitation and community protection, but to also appropriately denounce your conduct, and to act as a deterrent to both yourself and others from engaging in this kind of offending.
75I also note that I am of the view that an aggregate term of imprisonment is appropriate in relation to charges 1, 3 and 7 as they are all offences which are founded on the same facts and also form part of a series of offences of the same or similar character – that is they all arise from the theft of the firearms during the burglary, your possession of those firearms, and your later retention of one of those firearms, all whilst you were a prohibited person.
76Insofar as charge 10 is concerned – the Commonwealth offence of possession of counterfeit money – taking into account all of the relevant sentencing principles, I agree with your counsel that this charge can be dealt with by way of a bond with conviction pursuant to section 20(1)(a) of the Crimes Act 1914 (Cth). It is not so serious as to require the imposition of a term of imprisonment.
Sentence
77Mr Tahere, you will be sentenced on each charge as follows.
78On charge 1 (possession of a traffickable quantity of firearms), charge 3 (theft of firearm) and charge 7 (being a prohibited person in possession of a firearm), you are convicted and sentenced to an aggregate term of imprisonment of 12 months.
79Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that a period of 312 days (not including today) is to be reckoned as the period of imprisonment already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
80On charges 2 (burglary), charge 4 (theft), charges 5 and 6 (theft of motor vehicle), charge 9 (possession of a drug of dependence, namely methylamphetamine), charges 11 and 12 (handling stolen goods), related summary charge 11 (possess prohibited weapon), related summary charge 12 (possess cartridge ammunition), and related summary charges 17 and 18 (commit indictable offence whilst on bail), you are convicted and placed on a community correction order, which will commence upon your release from custody and run for a period of 30 months.
81In addition to the mandatory conditions of the order you will be subject to the following special conditions:
(a) you must report to Melbourne Community Correctional Services within 2 clear working days of the commencement of this order;
(b) you must perform 260 hours of unpaid community work during the period of the order;
(c) you will be under the supervision of a Community Corrections officer for the entire period of the order;
(d) you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(e) you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed;
(f) you must undergo mental health assessment and treatment as directed;
(g) you must participate in programs and/or courses that address factors relating to the offending as directed; and
(h) you will be subject to judicial monitoring, which means that you must re-appear at Court for a review of your compliance with the order as directed by the Court. Your first review will be at 9am on Wednesday, 23 August 2023.
82I order that up to 60 hours of satisfactorily completed treatment and rehabilitation can be credited as unpaid community work. What that means Mr Tahere is that for each hour of treatment or rehabilitation which you undertake and satisfactorily complete, you will be credited one hour of community work – up to a total of 60 hours. So the most community work you will need to do under the order is 260 hours, the least amount is 200 hours. Do you understand how that works?
83OFFENDER: Yeah.
84HER HONOUR: Mr Tahere, you have heard the conditions I have placed on the community correction order. Do you understand all of these conditions?
85OFFENDER: Yes, Your Honour.
86HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and are likely to face a further term of imprisonment. Do you understand that?
87OFFENDER: Okay.
88HER HONOUR: Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
89OFFENDER: OFFENDER: Yes, I consent.
90HER HONOUR: On charge 10, which is the Commonwealth offence of possession of counterfeit money, you will be released with conviction, upon you giving security by recognisance in the sum of $500 that you will comply with a condition that you be of good behaviour for a period of 12 months commencing from today, being 27 April 2023.
91So what that means Mr Tahere is that you would giving a promise to the court to be of good behaviour – that is to not commit any offences – for the next 12 months. I have set recognisance in the sum of $500. You do not become liable to pay that sum of money unless you breach the order. I must tell you that if you breach the order by failing to be of good behaviour then you may be brought back before me for contravening the order, and in those circumstances the bond may be revoked and you may also fall to be re-sentenced on these offences. Do you understand that?
92OFFENDER: Okay. Yes.
93Further, I must also tell you that any recognisance you give in respect of this order may be discharged or varied. You have an ability to make an application for discharge or variance pursuant to the s20AA of the Crimes Act 1914 (Cth).
94Given what I have told you about the consequences of breaching the order which I propose to make, do you make that promise to be of good behaviour for a period of 12 months commencing today?
95OFFENDER: Yes, Your Honour.
96Finally, on charge 8, being the possession of the cannabis, you are convicted and discharged.
Section 6AAA Declaration
97Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment and a community correction order today and been convicted of them, you would have been sentenced to a total effective sentence of 3 years 6 months, with a non-parole period of 2 years and 4 months.
Licence Suspension/Disqualification
98Having convicted you of charges 5 and 6 – which are charges of theft of motor vehicle – I am required, pursuant to s89(4) of the Sentencing Act 1991 (Vic), to either suspend your licence, or cancel your licence and disqualify you from driving for a period of time for each of those offences.
99In determining how to deal with your licence in this case, I take into account that you do have a history of driving offences and that you were the driver of at least one of two of the stolen vehicles. However I also take into account that your licence falls to be impacted in circumstances where there is no evidence of bad driving by you on this occasion. Further, I am of the view that to take you off the road for an extended period of time would hinder your prospects of rehabilitation.
100Accordingly, whilst I am going to impose a period during which your licence is cancelled and you are disqualified from driving, I am not going to suspend/disqualify your licence for an extensive period.
101On each of charges 5 and 6, any licences you hold are suspended/cancelled and you are suspended/disqualified from driving for a period of 2 months from today. Both terms of suspension/cancellation and disqualification will run concurrently, so the total period of suspension/cancellation and disqualification will be 2 months. It is important Mr Tahere that when you are released from custody that you do not drive until you are properly re-licenced. Do you understand that?
Other Ancillary Orders – Forfeiture and Disposal
102Pursuant to section 151 of the Firearms Act 1996 I make a forfeiture order in respect of the following items:
(a) CZ KZM 455 Brand Rifle – S/N: C333899;
(b) small metal pellets;
(c) round of cartridge ammunition;
(d) .22 calibre round of cartridge ammunition;
(e) four shotgun shells;
(f) ammunition – 46/17GR cartridges;
(g) ammunition various calibres; and
(h) ammunition – 8 shotgun cartridges.
103Pursuant to section 9 of the Control of Weapons Act 1990 (Vic), I make a forfeiture order in respect of the following items:
(a) a baton; and
(b) a black coloured taser.
104Pursuant to s78(1) of the Confiscation Act 1997 (Vic) I make a disposal order in respect of the following items:
(a) Commonwealth bank card in the name of Frank Felice
(b) four assorted ID cards;
(c) assorted ID cards;
(d) passport in the name of Shah;
(e) counterfeit $100 note;
(f) assorted documents in various names;
(g) Victorian registration plates – UBX 026;
(h) assorted paperwork and medical documents;
(i) assorted personal documents;
(j) Victorian drivers licence in the name of Jayden Vassallo;
(k) Three firearm safes (C-0353-94; C-0353-95; and C-0353-96);
(l) identification documents in various names;
(m) camouflage mask;
(n) jemmy bar;
(o) false Victorian registration plates – 1OA5NF;
(p) black coloured IBM jacket;
(q) black case containing various documents;
(r) ziplock bag containing white coloured substance;
(s) cannabis (C-0353-0032); and
(t) cannabis (C-0353-0038).
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