Director of Public Prosecutions v Taipari, Daniel
[2012] VCC 1783
•9 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 12-01798
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL TAIPARI |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2012 | |
DATE OF SENTENCE: | 9 November 2012 | |
CASE MAY BE CITED AS: | DPP v Taipari, Daniel | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1783 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | Office of Public Prosecutions |
| For the Accused | Mr A.J. Lavery |
HIS HONOUR:
1 Daniel Taipari, you have pleaded guilty to without lawful excuse recklessly causing injury to Tamlin Llewellyn Plades and to kidnapping Tamlin Louise Plades. Both of those are serious offences. The first crime carries a maximum term of imprisonment of five years and kidnapping at common law carries a maximum term of imprisonment of 25 years.
2 The prosecution has tendered and read to the court an opening which is Exhibit A, and I am not going to repeat that, it has been read very recently in the presence of those who are in court. I incorporate that document in its entirety into these reasons for sentence. Suffice it to say that it is acknowledged on both sides that this was an unfortunate case of mistaken identity. You genuinely believed that the victim was the person responsible for stabbing your son. And I accept that your middle son or older son also believed that, your co-offender.
3 Perhaps you thought that you had a lawful right to arrest the person that you believed to be the person who had stabbed your younger son. Whether you thought that or not, you felt justified, I think, in taking him into custody. And it seems to me that although kidnapping is a very serious offence at all levels, that there was at least some moral justification for that conduct.
4 What I think there was very little moral justification for was your participating in the beating that was handed out to the unfortunate victim. You must have known that your other son had a fence picket with him and that he had it for a reason, and that was to execute summary justice upon the person believed to be the victim. You permitted that to happen and encouraged it by your presence. You were the father of your then 16-year-old co-offender and should have been able to exercise that degree of restraint, that leadership, that would have prevented that occurring. And it seems to me that you do bear some significant moral culpability for that offence in particular. Although it carries a lower maximum term of imprisonment than the kidnapping, it seems to me that in all the circumstances it was the more serious offending on your part.
5 I am bound to take into account the effect on the victim. It would have been an extraordinarily frightening experience for him. He would not have known, of course, what was behind your actions. They would not have seemed to him to be in the least bit reasonable. He would have had absolutely no idea what you intended to do with him after you had kidnapped him, where he was going and what further violence might befall him that night. It would have been an extraordinarily frightening experience. Quite apart from the physical injuries that he suffered he will no doubt have emotional scars as well for a very considerable period of time.
6 It is the duty of the court to make sure that people do not take the law into their own hands. On this occasion you did, and you certainly went a lot further than any reasonable moral justification could permit. You permitted your middle son to behave in that way in circumstances where you should have stopped him.
7 Turning to matters personal to you, you are 36 years of age and you came to Australia in 2008 to find work. You found it and you have stuck with the job. Your employers speak well of you. Your mother has written a lengthy reference on your behalf, which of course is biased because she is your mother. But I think that there is every reason to believe that what she says in it is well founded, that you have led a decent life up to now and you are a good family man and generally set a good example to your children.
8 You are highly thought of by your friends, highly thought of by your family, you are a good worker, and I think you have a bright future. No doubt, with your family around you, you will be able to put this behind you. It will be easier for you to put this behind you, I think, than it will be for the victim to put it behind him.
9 The offences to which you have pleaded guilty would ordinarily result in an immediate term of imprisonment. It is only because I think there was a genuine mistake made on your part, the acknowledgement by the prosecution of that fact, and the fact that the circumstances in which your 13-year-old son was stabbed, as described by you to the police, was indeed probably a truthful and accurate outline of the facts that caused you to behave in the way you did that indicates a different sentence.. I think it is not surprising that you would have been extremely upset by the fact that your son had been stabbed in that way and that you would have wanted to find the person responsible.
10 You were acting on pretty flimsy information. It seems to me that to pick on somebody who seemed to resemble the vague description that you had been given was a very poor error of judgment on your part, no doubt affected by the degree to which you had been upset and angered by the unjustified attack on your younger son.
11 With all that in mind the prosecution has indicated that an appropriate range of sentencing would include the imposition of a suspended sentence of imprisonment and the imposition of a Community Corrections Order. As I indicated to your counsel, before I could impose a suspended sentence I would have to be satisfied that a term of imprisonment was the only sentencing option available to me on the facts. I have reached the conclusion that that is not the only sentencing option.
12 A Community Corrections Order could be seen as a soft option. It has been introduced by Parliament to deal with situations where even where serious offences have been committed there is a reasonable alternative to a term of imprisonment, and to provide that alternative. And it can contain requirements that you undergo treatment. Anger management treatment might be one area in which one might consider that. But I think your past history with no prior convictions to speak of would suggest that this is an isolated incident, that you are unlikely to offend again, and that no such treatment orders are to be attached to a Community Corrections Order.
13 Rather, I think, the order should be one which includes a punitive element, and I can do that by requiring you to perform unpaid community work. That has the capacity, it seems to me, to give you a reminder of the nature of your conduct and the effect that that has had on the victim and his family, and ensure that you will not behave in that way again if confronted with similar circumstances. And hopefully to some extent it will act as a deterrent to others who might behave in a similar way if confronted with similar circumstances.
14 I would therefore have in mind to make an order which would require you to undergo 100 hours of unpaid community work over a period of two years. I would not attach any other conditions to it. You would have to report to a Community Corrections centre and follow directions that would require you to perform that unpaid community work. Do you follow?
15 You would also have to make sure that you stayed out of trouble, because if you commit another offence punishable by imprisonment during that period whilst the order is in force then you can be brought back and re-sentenced. A mere breach of the order is an offence in itself. Follow?
16 There will be other core conditions which will require you to notify change of address, change of employment, and to keep in touch with the Community Corrections centre, to obey all lawful directions and so on and so forth. Would you be willing to be placed on a Community Corrections Order in those terms?
17 OFFENDER: Yes.
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HIS HONOUR: Yes, all right. I will have the order drawn up and I will take you through the conditions of it. That will be with conviction. So on each of the offences you will be convicted. And once the order is drawn up I will get you to check it over with your counsel, and if you understand the terms and are willing to sign the order then the order can be put in place. I take it,
Mr Lavery, you have already explained at least in general terms the nature of the order and the effect of a breach of the order?
19 MR LAVERY: In general terms I have, Your Honour. I have.
20 HIS HONOUR: I will just read out the mandatory terms of the order to you. You must not commit another offence for which you could be imprisoned during the time that the order is in force. The order will be in force for two years or until you have completed the 100 hours of unpaid community work, and completed that satisfactorily according to the Community Corrections centre, through which that order will be administered. Do you follow?
21 You must comply with any obligation or requirement under the sentencing regulations, and those can be explained to you. You must report to and receive visits from the Secretary of the Department of Corrections or his delegate. You must report to the Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of your change of address or job. You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate. You must obey all lawful instructions from and directions of the Secretary or his or her delegate. And you must perform 100 hours of unpaid community work over a period of two years as directed by the Regional manager.
22 You will be required to attend at the Werribee Community Correctional Services, Suite 12, Level 2, 75 - 79 Watton Street, Werribee, within two clear working days after the commencement of this order; that is, today. So I imagine that will be by Wednesday of next week. I am sure that you will find an opportunity of going there before Wednesday of next week.
23 I will allow your counsel to look at the order and to ensure that it is in proper form. And if you wish to approach your client, Mr Lavery, with the order - - -
24 MR LAVERY: Yes, thank you, Your Honour.
25 HIS HONOUR: I would ask that he the sign it.
26 MR LAVERY: Yes, thank you, Your Honour.
27 HIS HONOUR: I might say that if you had not pleaded guilty to these offences I would have imposed a Community Corrections Order with a requirement that you perform 200 hours of community work. And, of course, that plea is a significant reason for reduction of sentence.
28 Any other orders that need to be made?
29 MS CHURCHILL: No, Your Honour.
30 HIS HONOUR: No, all right, thank you. You can leave the dock now.
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