Director of Public Prosecutions v Takashi

[2020] VCC 1579

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00610

DIRECTOR OF PUBLIC PROSECUTIONS

v

IWATA TAKASHI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF SENTENCE:	1 October 2020
CASE MAY BE CITED AS:	DPP v Takashi
MEDIUM NEUTRAL CITATION:	[2020] VCC 1579

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Discharge of firearm at a vehicle – cultivate narcotic plant – possess drug of dependence

Legislation Cited:  Criminal Procedure Act 2009; s 145
Cases Cited:  DPP v Boulton [2013] VCC 972

Sentence:Total effective sentence of 31 months imprisonment with a non-parole period of 15 months imprisonment before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall (Plea) Ms I. Basedow (Sentence)	Director of Public Prosecutions
For the Accused	Ms K. Ljubicic	Cash & Stavroulakis Lawyers

HIS HONOUR:

1Iwata Takashi, on 23 September 2020 you pleaded guilty to the following charges on Indictment No. K12048446:

Charge 1, discharging a shot at a vehicle. This is a Firearms Act offence. This charge has a maximum sentence of 15 years' imprisonment.

Charge 2, cultivate a narcotic plant, Cannabis L.  This offence has a maximum penalty of, in your case, 15 years' imprisonment.  As the prosecution allege, that it is trafficking and your admissions amount to the same. 

Charge 3, possession of a drug of dependence, cocaine.  this offence has a maximum penalty of one year imprisonment, as the prosecution do not allege that it is trafficking on your part on that charge.

2You have also agreed to have a related summary charge transferred to this court, pursuant to s.145 of the Criminal Procedure Act 2009. You have pleaded guilty to the following related summary charge 3, which is possess cartridge ammunition without a permit. This charge has a maximum penalty of 40 penalty units.

3You admitted two prior court appearances in 2016 and 2008.  The most relevant prior court appearance was on 1 April 2016 at Broadmeadows Magistrates' Court for unlawful assault and wilful damage to property when you were fined an aggregate of $2000 without conviction.

Circumstances of your offending

4At the time of your offending you were 38 years old.  You are now 39 years old. 

5Mr Gurpal Saini was saying the driver of the car you shot at was unknown to you at the time of your offending.

6On 3 August 2019, Mr Saini had finished work at the Roxburgh Park Hotel at approximately 9.45 pm.  He decided to wait for his friend, Nisrat Cook, who was working at the hotel.  Mr Saini and Ms Cook had been in an on and off again relationship for the past few years but had not been talking recently.  Mr Saini thought Ms Cook was seeing someone else and wanted to talk to her about it.

7At around 10.30 pm, Ms Cook left work at the hotel and Mr Saini watched her get into the front passenger seat of a silver ute that had been parked at the front of the hotel.  The silver ute pulled out of that car park and Mr Saini followed in his own car.  The silver ute was driven by your friend, who has been referred to as “Ash”.

8The silver ute then drove through the suburban streets of Roxburgh Park and on to the freeway.  Mr Saini followed the ute and video recorded the car on his mobile phone.  At some stage the driver of the silver ute realised that he was being followed and called you, asking what he should do.  You have then advised him to ‘drive slow, go somewhere else, keep driving around in circles.’

9An hour later, Ash called you again, saying he was still being followed and that he was coming to your house.  The driver of the ute, Ash, was worried that the person following him was going to get him. 

10Eventually the silver ute drove past your home in Canning Street in Avondale Heights.  You saw Mr Saini's vehicle following close behind the silver ute at a very slow speed.  You then got dressed, grabbed a bag containing the pistol, and got into your car. 

11After some time the silver ute pulled into a MacDonald's car park in Avondale Heights.  It drove through the car park and exited on to the road behind the car park on Raglan Street.  The car then circled back past the same MacDonald's and again back down Raglan Street.  Mr Saini continued to follow the silver ute in his car.

12As the silver ute drove down Raglan Street for the second time it suddenly slowed down and stopped.  Mr Saini also slowed his vehicle and came to a stop about two car lengths away from it.  At that moment you drove your car in a head on direction towards Mr Saini's car and stopped in front of it on a slight angle, so that the two cars, that is your car and Mr Saini's car, were facing one another.  You got out of the car and pointed the pistol at Mr Saini, who was still sitting in the driver's seat.

13Frightened, Mr Saini immediately reversed his car away.  As he did so you fired a shot at Mr Saini's car.  The bullet hit the front grill of Mr Saini's car, just below the lip of the bonnet, and perforated the areas of the plastic trim and striking the metal chassis.  It was lodged behind the left, front headlight assembly of the car.

14Mr Saini drove back into the MacDonald's car park where he had seen a police car parked.  You have then followed him in your car and pulled up behind
Mr Saini's car.  Mr Saini got out of the car and ran into the restaurant.  As he did so, you got out of your car and said, 'Hey, where are you going?'  Mr Saini ran into the restaurant and told police inside what had happened to him.  When the officers came outside you had gone.

15The police investigation information have identified you as the likely offender.  On 5 August 2019, two days after the shooting, you were arrested in Darley. 

16A search warrant was executed at your residential address in Avondale Heights.  You were present during that police search.  You led police to a small chest freezer on an outside porch and told them that the firearm was at the bottom, under the food.  A loaded, black FN Browning model 1900 pistol was recovered and seized. 

17Police asked you if there was any ammunition in the house and you said there was some in a cooler bag in the lounge room.  The cooler bag was found, containing two boxes of ammunition, and that is the basis for the possession of ammunition charge.  Also there was a small bag containing 3.2 grams of a white powder, which returned a positive preliminary test for cocaine.  That is the basis for Charge 3 on the indictment.

18During the execution of the warrant a small cannabis crop was found inside a kitchen cupboard at your premises.  The cannabis plants were later analysed by the botanist, Ms Fiddian.  In total there were seven plants weighing 2.2 grams as well as one leafy stem weighing 5.3 grams.  There were a further 16 plants which could not be identified.  That is the basis for the cultivating a narcotic plant.

19Your vehicle was seized.  A fired cartridge case was located inside and subsequently examined.  That examination confirmed that the fired cartridge case had been fired from the pistol recovered from the freezer.

20You have then been conveyed to the Moonee Ponds police station, where you participated in a record of interview with them.  You made full admissions and identified yourself and others in the CCTV stills that you were shown.  You told police as follows:

(a) that you had been asleep on the couch when you received a call from your mechanic, Ash.  Ash told you that someone was following him around and he did not know what to do, that you, Mr Takashi, advised him to drive slowly around in circles;

(b) an hour later Ash called you again, saying he was still being followed and that he was coming to your house.  Mr Takashi again then told police that he told Ash to drive slowly so that the person would go away, but Ash insisted the person following him was going to get him;

(c) you saw Ash drive past your house with Mr Saini's car following.  You got dressed, grabbed a bag containing the firearm and got into your car.  As Ash and Mr Saini drove down Raglan Street, you drove towards them in the opposite direction and stopped in front of Mr Saini's car, cutting him off;

(d) Mr Saini started high beaming you.  You then did what you describe was a stupid thing and you got out of the car and headed towards Mr Saini's car.  You wanted to tap his window and grab him, like talk to him, you know, strangle him, whatever, but Mr Saini, did not want the confrontation;

(e) you have then had something which you should not have had with you, which was a firearm;

(f) that you wanted to scare Mr Saini to stop him doing what he was doing.  You did not aim the firearm at him but pointed it to the concrete in front of his car, below the bumper bar. Mr Saini stood his ground, you said;

(g) you have then let off one round and Mr Saini then reversed and left.  You jumped in your car and followed Mr Saini to confront him.  When you saw an Indian person get out of the car you thought, 'What's going on?'  You thought the pursuer would be a member of the Mafia;

(h) you said that you had been given the firearm nine to 10 years ago to protect yourself and your ex-wife, who had fled an abusive relationship in the past.  You thought about handing it in but always worried about it and that you had never used it;

(i) the white powder could be cocaine but you do not know and you do not use drugs; and

(j) the cannabis plants were given to you to give to someone else.  They were for friends and family.

21You were charged at the Broadmeadows police station on 5 August 2019.  Initially these charges were to be heard in the Magistrates' Court jurisdiction.  You were in custody on remand from 5 August 2019 to 1 October 2019, a total of 58 days' pre-sentence detention at that time.  The charges were uplifted to the committal stream after you were granted bail.  A plea to these charges was finalised in April 2020.  The matter was listed for plea on 23 September 2020.  Your plea is made at the earliest reasonable opportunity.

Victim impact statement

22Mr Gurpal Saini made a victim impact statement dated 23 July 2020.  This was read out in open court as requested by Mr Saini.  It was Exhibit “B” on the plea.  Mr Saini says that as a result of the incident, as he described it, he could not concentrate at work or sleep properly.  This improved after a few days he said.  He stated he stresses that he will be followed again.  He parks his car away from his work so no one can tell if he is at work.  He stated that all this could have been fixed by talk or some other good way, not by doing something that could kill people.

Personal circumstances

23You are now 39 years of age.  Your family background has all the markers of sadness, suffering and violence.  Your parents married as a result of an arrangement between your mother's father and your own father.  Your father is of Turkish background.  Your mother is of Fijian Indian background.  When your parents married your mother was 17 years old and your father was 31.

24You have described your upbringing as being dominated by severe family violence perpetrated by your father.  Both your mother and you were on the receiving end of this violence.  When you were really young some nights your mother and you were homeless to escape the violence from your father.  You have a sister who is six years your junior.  Your sister was not subjected to your father's violence directly but did witness it.

25When you were nine years old and your sister was three years old your sister was injured in a motor vehicle collision.  Unfortunately, your sister suffered an acquired brain injury as a result of that collision, and this has meant that she has required care all of her life.  Your sister is currently on a disability pension.  Currently your sister has limited cognitive function due to drug addiction and as well she lives in an abusive relationship.  Your sister has two daughters aged 11 and eight years of age and both of whom are in DHHS care to manage life for those girls.

26When you were 11 years old your parents separated.  Your mother worked as a chef and a kitchenhand.  Money was tight and the three of you, meaning your mother, yourself and your sister, lived in perpetual financial hardship. 

27Your early years were in the Flemington area.  You completed primary school at St Mary's primary school in Flemington.  You then attended University High School in Parkville and completed Year 12 VCE at Debney Park Secondary College, which is in Flemington.

28After school you commenced a Diploma of Computer Science at RMIT Institute of TAFE.  You ceased this course after six months.  Subsequently you completed a four year course inside three years at Chisholm Institute of TAFE and obtained an Associate Diploma of Industrial Mechanical Engineering.  You describe yourself as an engineer.  You have always worked from your earliest years.  From the age of 13 to 15 years of age you worked at the Victoria Market unloading fabrics.  You also worked at MacDonald's at the Victoria Market until you were 17 years old.  Within those jobs you delivered pharmaceuticals for Bowman Pharmacy by bicycle around the North Melbourne area.  You worked hard to help support yourself, your mother and your sister.

29After leaving school you obtained full time employment with Westgate Logistics as a picker packer.  In 2003 to 2004, you worked for Adecco Industrial, an employment agent, where your work included making lawn bowls.  You also worked at a Ford assembly line and the Toyota assembly line.  Between 2004 and 2014, you worked for Toll Logistics, Nissan and Pace Farms which was an egg producer. 

30In 2014, you commenced your own car wash café business in Avondale Heights.  This business folded after two years of successful operation.  The business folded due to your partner's difficulties managing the affairs in the end.

31In the period of 2016 to your time of arrest in 2019, you had returned to Pace farms and worked in a supervising role at the warehouse operations there.  You have an impressive and consistent work history. 

32You are currently in a relationship with Ms Paulo.  This relationship is of some three years standing.  Ms Paulo prepared a lengthy and detailed letter of support for you, which was tendered on your plea.  She described you as a generous, loving, hardworking and family orientated person.  She also referred to your short temper, for which you have sought help from a psychologist.  Ms Paulo describes how you accept your responsibility for your offending.

33Your mother, in her letter set out the chaotic and violent upbringing you experienced due to your father's violence.  She set out how these offences have damaged your reputation within your community and hindered your employment opportunities. 

34Marilyn from Workskil Australia, in her reference dated 18 September 2020, sets out your attempts to get employment after being granted bail.  You have had short term jobs at The Good Guys, JB Hi-Fi, and Linfox Food and Caroma Industries.  All employers speak well of your work ethic and ability but terminated your employment as a result of the police check, which revealed you had a firearms offence.

35Your friend, Mustafa Togan, also prepared a letter of support for you, dated
20 September 2020.  In that letter he describes you as a good person with a strong work ethic.  He describes your resourcefulness and dedication to hard work in assisting him to get his business up and running after it had been destroyed by fire.

36Ms Dharmendra Reddy also attested to your generosity to other people and your commitment to counselling to address your anger management issues. 

37Since your release on bail you have attended counselling with Erica Patrick, a psychologist.  Ms Patrick's report was dated 18 September 2020.  The report is refreshingly brief and to the point.  You have had 12 sessions of therapy, including cognitive behavioural therapy, mindfulness and interpersonal therapy with her.  The therapy has been directed to addressing your anger management difficulties.  I accept Ms Patrick's opinion that you have shown insight into your offending and regret breaking the law in these occasions. 

38Upon your release on bail you have continued with your efforts to remain in full time employment.  Unfortunately as soon as the police check result came in your employment was terminated.  This has occurred on three occasions until you finally obtained a job with GreenSpec as a machine maintenance worker and packing facemasks and sanitiser.  You have retained that employment up until the time of your plea hearing.  This post-offence behaviour by you is a clear indicator of your resilience and your determination to get work.  These are factors that are positive indicators for your rehabilitation. 

39I take into account your personal circumstances and history when assessing the appropriate sentence for your criminal behaviour.

Sentencing considerations 

40The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. 

41I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender rehabilitated and reintegrated into society.

42I am required to take into account current sentencing practices in fixing your sentence.  In respect of Charge 1, neither the prosecutor nor your counsel or my research located any other sentence for this particular charge.  This charge is a new charge in the criminal calendar with a maximum sentence of 15 years' imprisonment.  Prior to the enactment of this charge, persons who offended in similar circumstances were charged with the offence of reckless conduct endangering life, which had a maximum sentence of 10 years' imprisonment. By enacting the new offence with a 50 per cent higher maximum sentence, the parliament is clearly setting out the level of seriousness that attaches to the consequences of firearm use and the dangers to the public posed by firing and carrying loaded firearms, as you have done on this occasion.

43You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community. 

44Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.

45I accept you are genuinely remorseful for the offending.  I also accept that your plea of guilty in the circumstances of the COVID-19 pandemic has substantial utilitarian value.  I note that the practical management of a jury trial is yet to be resolved in this State.  You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown future date. 

46In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and that will be applicable to you and, indeed, upon all prisoners in the State of Victoria for an uncertain time in the future.

47A result of those restrictions is that you will not have the opportunity for contact visits from your partner or family.  There is a risk of you having to spend more time in your cells than otherwise would be the case in ordinary prison time.  Further, you will not be able to receive any visits, as I have said, from your mother, who has been very supportive of you, and you of her over your lifetime.  These further restrictions will make your time in custody more onerous than ordinary prison conditions.

48Your imprisonment and the COVID-19 restrictions also means that you have limited opportunity to participate in courses during the time of your imprisonment, which will limit in part your rehabilitation in the early stages.  You have also been suffering from anxiety.  You have more anxiety due to the COVID-19 risk to yourself personally, as you have no control over that risk or the methods of controlling the risk whilst you are in custody.  All of those circumstances will mean your time in custody will be and continue to be more onerous than otherwise in the case of a prisoner in normal times.

49The objective gravity of your offending in respect of discharging a firearm at a vehicle with reckless disregard for the safety of any person, is indicated by the following matters:

(a) I do not accept your involvement in this shooting incident was a situation of excessive defence of your friend, Ash;

(b) you were aware your friend, Ash, had been driving around and complained to you about his fear of something like assault or threats from the driver, who was following him for a period of nearly one hour or, as was travelled, over some 100 to 150 kilometres;

(c) at the time you took the loaded handgun from your home and entered your car, you had decided you were going to intervene in the pursuit of Ash by Mr Saini;

(d) you pulled your car in front of Mr Saini's vehicle, effectively blocking his path to pursue Ash.  There was no urgency at that point;

(e) you then got out of your car and had a loaded gun with you;

(f) you pointed the gun at Mr Saini's car, and he began to reverse as a retreat;

(g) You have then fired the gun at the front of Mr Saini's car to scare him off;

(h) at the time you fired the gun Mr Saini was in retreat, there was no urgent threat or emergency to you or to Ash;

(i) you pursued Mr Saini to the MacDonald's store and then you saw him run away from his car.  When you saw him run away from his car you left the scene;

(j) the shooting took place in the suburban street near a MacDonald's store that was open.  There were police at the MacDonald's store;

(k) at no time during the period of the first call from Ash to the end of the second call, did you suggest to Ash that he go to a police station and report the car following him, you were going to take the law into your own hands to warn off the menace of the person who was following Ash;

(l) the discharge of a firearm in the vicinity of this offence created a real risk of injury to Mr Saini and to other members of the public that were or could have been in the vicinity.  This was a complete disregard for their rights and their personal safety;

(m) there were no direct risks to you when you fired the gun.  It was a gratuitous and senseless act;

(n) the firing of the gun was done in anger and in a sense of retaliatory response to the tailgating pursuit of your friend, Ash.  You wanted to show Mr Saini who was in charge;

(o) you did not know who the person was in the car other than, as you have described it in your record of interview, an Italian or Greek mafia.  Your angry action placed others in danger and was just plainly wrong; and;

(p) you were not permitted by law to have the handgun or the ammunition found at your premises.

50In respect of the two drug related charges it is conceded by the prosecution that the possession of the cocaine was not for trafficking purposes.  In respect of the cultivating cannabis charge your own admission to police amounts to trafficking, in the technical sense, of the plant by giving it to someone else.  You were a conduit in that case.

51The trafficking aspect of this offence is at the lowest level and your role lacks the sophistication and commerciality.  The amount of cocaine is very small.  The number and size of the cannabis plants were also very small.  The drug charges are separate offending from the shooting charge and it is appropriate for some cumulation of sentence for the cultivate cannabis charge.

52Mr Takashi, can you still hear me?

53OFFENDER:  Oh, yeah, it's coming through now, Your Honour.

54HIS HONOUR:  Thank you.  Can you see me?  Because you have gone blurry at your end.

55OFFENDER:  Yes, we can see you, Your Honour.

56HIS HONOUR:  All right, thank you.  As I say, the drug charges are separate offending from the shooting charge, and it is appropriate for some cumulation of sentence for the cultivate cannabis.

57In your case delay is also a factor in the overall sentencing synthesis.  Initially these charges were commenced in the summary stream.  The charges were subsequently listed in the committal stream.  At all stages your intention to plead guilty was made clear to all parties.  You initially spent 58 days on remand.  You were wrongly accused by other prisoners, whilst in custody, of being a police informer because you obtained jobs and privileges whilst on remand.  You were threatened and requested to move within the prison.

58You were then released on bail on 1 October 2019.  You have obtained work whilst on bail, even though your future was uncertain due to these charges.  You have also sought professional help from a psychologist to address your diagnosed depression and anxiety.  The delay between the grant of bail and the ultimate sentence is one year.  In that time your rehabilitation has been advanced.  In that period you have experienced uncertainty and anxiety due to whether or not you would be sent back to prison for this offending.  I take the delay between the charging and your arrest and the final disposition of these charges into account when fixing your sentence.

59Your counsel submitted that an appropriate sentence was a Community Corrections order taking into account that you have served 58 days on remand. 

60I am mindful of the provisions of the Sentencing Act and, in particular, s.5 (4C), which directs the sentencing court to consider whether a Community Corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton in considering if a Community Corrections order would be appropriate in your case and I had you assessed for a Community Corrections order.  You were assessed as being suitable. However, that is not the end of the matter. 

61I have assessed your offending as a level of seriousness that a community based disposition is not appropriate in this case. 

62I take into account your demonstrated good work history and the references that were tendered here in your plea as to your generosity and support of other people. You have a very limited criminal history.  The relevant court appearance was in 2016, where you were fined without conviction for the unlawful assault and wilful damaging of property. 

63I consider your prospects of rehabilitation as being good.  You have tertiary education, you have a good work ethic, you have good family support who will welcome you home and help you reintegrate to your former life upon your release from prison.

64I fix a non-parole period for your sentence in the hope that you can achieve parole, and with the assistance of the Adult Parole Board undergo further rehabilitation. 

65The principles of sentencing of general and specific deterrence, denunciation of your actions and the protection of the community are the most important considerations in your case and a term of imprisonment is the only appropriate and just sentence.

66In respect of Charge 1, you are convicted and sentenced to 30 months' imprisonment.  That is the base sentence.  In respect of Charge 2, which is cultivating the cannabis, you are convicted and sentenced to three months' imprisonment, one month of that sentence is cumulative upon the base sentence.  In respect of Charge 3, which is possession of a drug of dependence, cocaine, you are convicted and sentenced to seven days.  On the summary charge of possessing ammunition you are convicted and fined $500. 

67That is a total effective sentence of 31 months' imprisonment. I fix a non-parole period of 15 months' imprisonment.

68But for your plea of guilty I would have sentenced you to four years with a two year, nine month minimum term.

69I declare that you have served 66 days pre-sentence detention.  Counsel, can you just check I have got that right?  Sixty-six days of pre-sentence detention, and I have signed the disposal and forfeiture orders.

70MS LJUBICIC:  It is 66 days not including today.

71HIS HONOUR:  Yes, not including today, yes, yes.

72MS BASEDOW:  I agree with that figure, Your Honour.

73HIS HONOUR:  Thank you.  So, Mr Takashi, the ultimate sentence is 31 months with 15 months on the bottom.  Yes, thank you, anything further counsel?

74MS LJUBICIC:  Just for the completeness, Your Honour, I am just - perhaps I should tender - there was an additional character reference that was provided to me and eFiled.  A reference of Ryan Saba.  I am not sure if it made it to Your Honour.

75HIS HONOUR:  What reference is that?

76MS LJUBICIC:  I received it - it was a reference of Ryan Saba.  It was not dated.  It was e-Filed and was sent to Your Honour's associate.  It is not sent by me but by the instructor on 23 September, which is the date of the plea, but after the plea.  So that was forwarded on to Your Honour and the prosecutor.  It might be the case that, Your Honour, it just has not reached Your Honour.

77HIS HONOUR:  No, it had not.

78MS LJUBICIC:  All right.  Well, I will leave that then, Your Honour.

79HIS HONOUR:  Yes, thanks.  Thank you.  Do you want the link left open so you can speak to Mr Takashi?

80MS LJUBICIC:  Yes, if I can, Your Honour.

81HIS HONOUR:  Yes.  I will make that arrangement and I will leave the court.  Yes.

82MS BASEDOW:  Can I just confirm, sorry, Your Honour, that the disposal orders have been received, and the forfeiture order?

83HIS HONOUR:  Yes.  Yes, I have received them and signed them and made them, yes.

84MS BASEDOW:  Thank you, Your Honour.

85HIS HONOUR:  Thanks.

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