Director of Public Prosecutions v Tamatea

guj

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-18-00335

Indictment No: H106313849

DIRECTOR OF PUBLIC PROSECUTIONS

KAAPO TAMATEA

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2018
DATE OF SENTENCE:	20 June 2018
CASE MAY BE CITED AS:	DPP v Tamatea
MEDIUM NEUTRAL CITATION:	[2018] VCC 941

REASONS FOR SENTENCE
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Subject: Theft from shop, recklessly causing injury upon the pharmacist, summary assault upon assistant. All whilst on suspended sentence for variety of assault offences. 25 years old. Relevant prior history.

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APPEARANCES:	Counsel Solicitors
For the DPP		Mr D. Ms C. Foot OPP

For the Accused

Mr B. Lindner Ann Valos Criminal Law

HIS HONOUR:

Kaapo Tamatea you have pleaded guilty to one charge of theft, and one charge of recklessly causing injury. The theft is punishable by a maximum term of 10 years imprisonment, the recklessly causing injury by a lesser maximum of 5 years though plainly it is by far the most serious of the crimes before me. You have also pleaded guilty to a summary assault punishable by a 3 month maximum term.

You have a relevant criminal history as is conceded. You were on a suspended sentence for a number of crimes including crimes of violence at the time of these offences and have since been required to serve that restored 9 month term. I will say more about that later in my reasons.

This matter was opened to me last week by Ms Foot who appeared on behalf of the Director of Public Prosecutions. The written opening, dated 21 May 2018, was marked as Exhibit A on the plea. Your counsel Mr Lindner made it clear that this was an agreed statement. It will remain on the Court file.

In such circumstances there is just no reason for me to descend to the full detail of your offending. I will not go beyond that agreed factual statement. Plainly a theft from a pharmacy has unravelled very badly. You and your brother were challenged and you then took the totally unnecessary step of delivering a forceful and unexpected punch to the face of the person who was challenging you. That person was a 27 year old woman. It was totally unnecessary. You could have pushed past her or ignored her and left. To do what you did was, as you recognised yourself in the interview, just “not right". You then shaped up to punch the first victim’s assistant who pursued you as you left the scene. Again it was woman. Hence the charge of summary assault. Assault in the sense of creating the apprehension in her mind for of course you did not touch her.

So on this day, this was mayhem, just created out of the blue. An uneventful day converted into a day your primary victim and her assistant will never forget. Though I will deal with the impact of the crimes in one moment, the immediate physical impact was bad enough and is spoken of in paragraph 11. There is a single photograph marked as part of exhibit A. Additionally the CCTV footage was played and marked as exhibit B. As is plain from that footage your attack was startling and unfortunately it has had long term impact.

You were arrested on 6 March 2017 and made full admissions to the police, which is to your credit. You have been in custody ever since though significant portions,

9 months, pertain to other sentences imposed. There was a period of 189 days to the day of the plea to be reckoned as strict PSD. That figure has obviously risen since last week. Your brother was dealt with for the theft and received a $100 fine with conviction.

In Mitigation

Your counsel Mr Lindner relied upon a number of matters in mitigation chiefly:

· Your early guilty plea;

· The presence of remorse;

· Parity of sentence at least relating to the theft matter;

· He relied upon a report from a psychologist, Mr Cummins though not as engaging any of the principles from a case of Verdins;

· Mr Lindner took me to your personal background in some detail. He made submissions as to your prospects of rehabilitation but conceded that they could only be viewed as guarded.

· He also made submissions as to the relative seriousness of the offending. He conceded the inevitability of a term of imprisonment but argued that it would be open to sentence you to a term of imprisonment with your ultimate release onto a Community Corrections Order.

Prosecution

Ms Foot, who appeared on behalf of the Director of Public Prosecutions of this state submitted that given that an additional 12 months imprisonment could be imposed beyond the time served to date, such a disposition was open though whether the court took up that option or chose to impose a non-parole period was obviously for the Court to decide.

Victim impact

There are two victim impact statements from the victim marked as exhibit C. Also an email from her, marked as part of that same exhibit. No issue is taken with the form of that email or for that matter the contents of the impact materials. There were also two medical reports from the surgeon. The two impact statements were read aloud and I have read them and all the other material since the day of the plea. As you know, your offending has had devastating impacts upon the 27 year old female victim of the recklessly causing injury charge. Those materials set out the impacts. They make for pretty sobering reading. As she describes, a happy day at work just transformed by your act. The blow, pain, shock, swift movements to hospital and diagnosis and that, of course, was just the start of this nightmare. Significant time off work, infection anxiety and most distressingly a change to her appearance with a drooping or lowering of the left eye. Her first impact statement describes the loss of confidence and feelings of being deformed, of somehow feeling unattractive. She was scared to be left in the pharmacy alone and she sustained large financial loss. She had sustained an impact upon her eyesight. There is a loss of self-esteem and confidence that is described in the first impact statement. She elected to undergo an orbital floor repair, no minor operation but one she felt she had no choice but to have. There, of course, were risks involved in that with recovery time as well. As she says in her email, the face is the first thing that people see and once they see the damage done it is very hard for them to ‘unsee’ it. Well she sees it every day and was upset by what she sees and hence she had the surgery in January of this year. More time off, more time in hospital, more time around specialists, more pain, more infection, more difficulties with her vision. That is what you have done to this woman. I do however note the quite encouraging reports from the surgeon who has provided two reports to the court and one hopes that the impact for your victim will ease significantly with the physical improvements brought about by that surgery. The truth is, her life has for the last 17 months or so been ruined, ruined by your decision to punch her, it is that simple. She will never forget your crime and the impact has been very sizeable, and I take into account, as I am required to, the impact of your crime.

Background

I turn now to your background though believe I can do so quite briefly as your personal background is just not contentious. Nor does it actually explain your offending. So I am not going to slavishly restate in these reasons all that I was told. Your background is set out in detail in the written plea outline submissions filed on the plea (Exhibit 1) as well as in the report of Mr Cummins filed on the plea. That is Exhibit 2. I have no reason not to accept your family background and I do accept it. You were born 23 September 1992 so were only 24 at the time of the offence. You are 25 now; you will turn 26 in September of this year. You have 2 brothers and one sister. Your sister and one of your brothers supported you at Court the other day. Your parents separated when you were about 8, you as I understand it then lived with your father’s father up in Queensland for about 5 years. You were very isolated from your siblings and you were lonely but returned to Melbourne in around 2005 aged 13 to live with your mother. You were educated to the end of year 9 and then left school aged 15. You have had some unskilled work since. You had started to use drugs and to offend prior to the untimely death of your mother in 2013. That loss was obviously a shock for you, she was only 42, and drug use then spiralled out of control to the point that you were using heroin on a daily basis at the time of this offending. You have had no contact with your father for three or so years and were living with your brother and sister at the time of this offending. You have been in custody since 6 March 2017 and you have been held at Margoneet for just over a year. You are working and have done some courses and have had clear urine screens. See exhibits 3 and 4.

You have a criminal history and you have been dealt with in the Children’s Court for robbery and affray and recklessly causing injury. Thereafter there have been adult court appearances. You have had two CCO’s one with monitoring. Additionally on a large consolidation, dealt with at Melbourne Magistrates Court on 4 Feb 2016, you were given a 9 month prison term, which was wholly suspended for 12 months. That was pretty startling offending as the summaries placed before me attest. See exhibit E. The offences dealt with on that day included two charges of intentionally causing injury, one charge of robbery, a recklessly causing injury, affray, and theft. The offending for which I must pass sentence occurred in the currency of that order. So it is obvious that you have been given a number of chances and you have simply not taken them. That suspended sentence was restored on 16 May 2017 at Melbourne Magistrates’ Court. On the same day at Melbourne Magistrates Court you received a 4 month aggregate term for a variety of dishonesty offences which had occurred in the currency of the suspended sentence. Finally on 6 July 2017, this time at Sunshine Magistrates court, you were breached on the most recent Community Corrections Order and the order was cancelled and you were resentenced to a 4 month concurrent term. You were also fined on some fresh offences. So your history before the Courts is undoubtedly relevant to my task as is conceded by your counsel.

Guilty plea

I turn then to the matters raised in mitigation. You have pleaded guilty and you have done that at the earliest stage. You have facilitated the course of justice. You have taken responsibility for your crimes at the earliest stage. Witnesses have been spared the experience of coming to court to give evidence. That clearly would have been a distressing experience for the two victims here. The community has been saved the time, cost and effort associated with a contested hearing in the Magistrates' Court or up in this court. So I take those matters into account in mitigation. You also made very full admissions to the police and were, in my judgement, very co-operative with them and I take that into account in your favour as well.

Remorse

Your barrister, Mr Lindner, submits that you are remorseful and he relies upon the guilty plea, your utterances in the interview with police and what you told Mr Cummins. A guilty plea is often, but not always, indicative of some remorse. But having reviewed the materials including your police interview in particular, I am satisfied on the balance of probabilities that you do have a level of genuine remorse for these crimes. I take that into account in mitigation.

Rehabilitation

I turn now to your prospects of rehabilitation. Your counsel submitted that you had some prospects of rehabilitation. He submitted that those prospects must be viewed in a guarded fashion. You have experienced the shock of being taken into custody for the first time and there you have rested for a touch over 15 months. You are still quite young and I must not lose sight of that. I take into account those cases dealing with the importance and significance of youth adapted though to one of your age and experience before the Courts. Rehabilitation is still an important purpose here, there is no question about that. Of course you are no youthful first offender. Far from it. You do not like what you have done, you are plainly not comfortable with the act that you committed at the pharmacy and I sense that it sits uneasily with you. That much can be gleaned from the interview. That is more than a start. It is true that you have a relevant prior history and true that you have breached a Court order but I am certainly not going to write you off. You have been charged and confined now for a sizeable period and no doubt that will serve to deter you to a degree in the future. That and the sentence I will soon pronounce. You also have a long term addiction to drugs. Quite simplistically you think that is now behind you. Mr Cummins suggests that that is an oversimplification and I am sure he is quite right in that respect. The test will come upon your ultimate release from custody as it always does. You currently have a moderate risk of re-offending at least in Mr Cummins view. You have done courses and have worked in custody. You need some anger management counselling. You had for whatever reason lost your way in life in the years leading up to this offending. There had been some unhappy experiences, obviously, flowing from your parent’s separation and then, of course, the untimely and tragic loss of your mother. Who knows what the trigger was but I am satisfied that you did lose your way. You were using drugs, you were obviously offending in a serious fashion in the past. So what, then, does the future hold for you? Well, you look forward to your eventual release and the work that you have been doing in prison suggests to you that you may have some career in hospitality and that is something that excites you. It is very hard to know what the future holds for you. You would not know yourself and it is difficult for a judge ever to make these judgements. As I have said already, though, I am certainly not going to write you off. I am prepared, actually, to find that you have reasonable or realistic prospects of rehabilitation but that is subject to your absolute abstinence from drugs. If you continue to use drugs you will have no prospects of rehabilitation at all.

Mr Cummins

I have already mentioned the report of Mr Cummins and I take into account his report in the ways argued by your counsel. Amongst other things Mr Lindner relied upon the report as demonstrating your insight and remorse, as containing details of your background, providing the results of the testing that had been conducted and expressing Mr Cummins' views as to the counselling that you need into the future. I see no need to set it out in detail, as I say I do take it into account. It was not relied upon in any way as enlivening any of the principles from the case of Verdins v The Queen; correctly so.

Parity

I also take into account the disposition imposed upon your brother, who was the

co-accused for the theft charge. Your brother received a $100 fine, which I think is remarkably lenient and all things being equal you would have, I suppose, a legitimate expectation of doing no worse than him given his age and poor prior history. That prior history is set out in Exhibit D. Of course all things are not equal. You were on a suspended sentence at the time and you also committed the recklessly causing injury for which it is conceded I must, in your case, impose a prison term.

General remarks

As to the offences themselves, Mr Lindner conceded that the conduct the subject of charge 2, that is the causing injury recklessly, was serious offending. He was right. It is true, as he says, that there was no preplanning in relation to the recklessly causing injury with the blow arising very much spontaneously. It was a single blow but how unnecessary it was. I am not even sure if you were able to watch the footage when you were in court, it makes one cringe to watch it. You must have thought yourself countless times since the incident how unnecessary your conduct was. Not just for your own purposes given that the blow has landed you in prison but also in the knowledge that this single blow caused such harm to another person. As the CCTV footage discloses, it was a powerful and unexpected single blow to the face of a woman who could just have so easily been ignored or shrugged off. All she was doing was her job. To strike her in the way you did was cowardly and just totally unnecessary. It was a disgraceful act. You were not protecting your brother and both you and he could have made good your getaway with no violence at all. None. So too the summary assault upon her offsider. Again, I mean, cowardly behaviour to shape up to punch a woman as I think you recognise in your interview. So two women subjected to this conduct by you. Maybe you were disinhibited by drugs. But that is not mitigatory at all. As to the theft, well it was a lowish value theft though obviously it was planned at least to some degree. There was no sophistication at all to it. No disguises. The recklessly causing injury stands out of all proportion to the theft. It was just so unnecessary and violent and that single blow was enough to cause the very significant damage referred to in the impact materials. You foresaw that your blow would probably cause injury and of course it did. It in fact caused the injuries referred to. Now I cannot let the gravity of the injuries swamp all other considerations here and I do not. But nor though can I ignore the mechanism and the actual impact. Very serious conduct in my view and the Magistrate was undoubtedly correct to refuse summary jurisdiction in this case. You were, after all, on a suspended sentence at the time and a court is required to take into account the impact of your crime.
Sitting up here, one can always imagine worse cases. We see all sorts of cases. This was not a sustained attack. It was not joint violence. It was very much spontaneous. However the injuries actually caused were bad. I must only sentence you, of course, for the crime to which you have pleaded guilty, that is recklessly causing injury, but I must take into account the actual impact here. And that is sizeable indeed as is correctly conceded. So this was not offending at the very lowest level by any stretch of the imagination. This was serious criminal conduct with a lasting impact.
Purposes
I have to consider a number of purposes of sentencing including your prospects of rehabilitation. As I have said, I believe you have reasonable or realistic prospects of rehabilitation. I am required to impose a just and proportionate sentence in relation to your offending. You know that you must be punished and that is obviously an important sentencing purpose here.
I must denounce your conduct and I do; and that is an important matter as well. You should be ashamed of your conduct and I think you are. It is good that you are.
There are other purposes of sentencing and one such purpose is the need for this court to seek to deter you from offending in the future. I must give that principle significant weight in my sentencing task despite your youth, and that is so given the nature of the crime and your past criminal record. Courts have in the past tried to lead you away from crime. They have tried to dissuade you from offending with little success. But I must try again. You must be deterred and that is a significant purpose here.

Community protection is also a relevant purpose at least to consider. I must consider protecting the community from you. Yet again, you have committed a crime of violence. Yet again, you have committed such an act upon a totally innocent member of the public.
General deterrence is a significant purpose of sentencing in this case. We as a community are sick of senseless violence especially against women. This court must send a very loud and clear message to other individuals in the community who might be minded to commit this sort of serious crime against a woman. Those contemplating such offending, well they must understand that such conduct will likely be met with a sizeable term of imprisonment.
I must and do pay regard to current sentencing practices, but it is not a controlling factor. I have considered the Sentencing Advisory Council’s Snapshot in relation to the offence of recklessly causing injury. That is number 190 of 2016 and the Sacstat data held. But this sort of statistical material always has real limitations. Statistics say nothing as to the individual features of the offence or of the offender. I have also looked at the collection of cases held at the Judicial College of Victoria sentencing guide at 29.7.4.1. But again, other cases are not sentencing precedents. What I have to do as a judge hearing your case is pass an appropriate sentence in your case for your crimes.
Totality
You have been continuously in custody since 6 March 2017 a period of a touch over 15 months. It is true that 9 months of that is referrable to other sentences and is therefore not strictly pre-sentence for these offences. However that other period is still relevant to my task. You have been continuously in custody and that is something I must have regard to. So I take the whole period into account and it is relevant in many ways including but not limited to the deterrent effect upon you and your prospects of rehabilitation. You have been there for a lengthy period and you are doing quite well. It has been a useful circuit breaker with enforced abstinence and will, I hope, enhance your prospects upon your ultimate release back into the community. So I do have regard to the period you have been in custody undergoing the other sentences in the broad fashion referred to by you counsel. I have also taken a last look at the sentences and the total effect of the sentences I am about to pass to ensure they are commensurate with your overall criminality and not crushing upon you.
Boulton
I have taken into account all of the materials placed before me and the submissions made by both counsel. Your counsel conceded the inevitability of a prison term for the recklessly causing injury but argued that it would be open to ultimately release you from prison on to a suitably conditioned Community Corrections Order. The prosecution say such a combined disposition falls within my sentencing discretion but that whether I proceed in that way or instead fix a non-parole period is a matter ultimately for the Court. Well it always is.
I am not bound to accept any submission made by either counsel. Of course I pay regard to all submissions made to me but at the end of the day I have to exercise my own sentencing discretion in this case. Not Mr Lindner. Not Ms Foot and not the Director of Public Prosecutions.
Mr Lindner took me to the case of Boulton. Well I am well familiar with that case and that is because it is referred to in about 80 percent of the matters that come before this court. I am also aware, though, that there has been much water under the bridge since that decision was published in late 2014, with some occasional criticism by members of the Court of Appeal as to the way in which the Courts have imposed these orders following on from that decision in Boulton's case. See for instance the case of Basic where the Court of Appeal expressed concern as to the way the Community Corrections Order disposition was being utilised and was in fact in their judgement leading to a distortion of sentencing. They recommended Legislative amendment. Now whether in response to that call by the court or otherwise, I cannot say, but there has in fact been significant Legislative amendment to alter and limit the disposition.
There is nothing in the case of Boulton obliging a sentencing judge to actually reach a particular conclusion in a particular case as the Court of Appeal made plain enough in the case of Boulton itself. They have repeated those comments in countless decisions since.
It is obvious that not every offender can be admitted to such an order. There are some crimes committed by some offenders where the purposes of sentencing cannot be given adequate weight by use of such an order even in combination with a prison term.
One thing remains a constant in sentencing: locking up any person is always a matter of last resort. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the Court concludes that the purposes of sentence cannot be achieved by a suitably conditioned Community Corrections Order.
Well it is accepted by your counsel, Mr Linder, that a Community Corrections Order on its own cannot achieve all the purposes of sentencing. I agree. He concedes that a term of imprisonment is required here. Again I agree with that submission. He argues for a term of imprisonment with your ultimate guaranteed and defined release onto a Community Corrections Order. He was not by the way suggesting immediate or imminent release. Well I do not believe that such a disposition is appropriate here. It would not, in my view, achieve all the purposes of sentencing including the need to punish, to denounce and to deter. Deterrence both general and specific are important considerations here. So too is punishment. You have previously breached the 2014 Community Corrections Order. The criminal conduct for which I must pass sentence occurred in the currency of a suspended sentence imposed for a number of serious offences of violence. The conduct for which I must pass sentence as I have said already was pretty outrageous and has had lasting impact upon your victim.
I do not believe it is open to me to structure sentences such that a release onto a Community Corrections Order is available to me in the sound exercise of my sentencing discretion in this case. I am going to pass terms of imprisonment and fix a non-parole period. Now whether you will be released on parole or not is not for me to decide or even for that matter to consider. The Adult Parole Board are experienced in this area and they will make that decision and they will at that stage be in a far superior position to determine your then needs than I can be now given that your possible release is still a distant event. So I must proceed on the footing that you will serve every day of the head sentence which I will pronounce but I am fixing a non-parole period, which hopefully will give you some hope and may well foster your rehabilitation if the Adult Parole Board decide to release you on parole.
464 ZF
Now application is made for a forensic sample order in this case and that is not opposed. I am going to make that order. I order pursuant to the provisions of s.464ZF(2) that you undergo a forensic procedure for the taking of a scraping from your mouth, in accordance with the relevant provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I make this order as I am satisfied that it is justified to do so, owing to the seriousness of the offending, the prior convictions that you possess, the fact that the order is not opposed and I judge it to be in the public interest. Now you are not opposing this order and correctly so, in my judgement. What we are dealing with here, Mr Tamatea, is the running of a swab around the inside of your mouth. I am not authorising the more invasive procedure, which would be a blood sample. I always authorise the least invasive process. So the authorities will approach you in custody and conduct a swab of your mouth. It is not unpleasant or particularly invasive at all. But I am required to advise you that the authorities may use reasonable force to enable that procedure to be conducted. As I say, at this stage, I have only authorised the scraping from your mouth and it should not present any issues at all. I have signed that order.

Sentence

All right, well if you could stand please Mr Tamatea, thank you. On the charge of theft, which is Charge 1 on the indictment, though I think, as I have said, the sentence imposed on your brother was remarkably lenient indeed, I feel to a large extent constrained by the principle of parity of sentence. I have considered whether it is open to me to pass a very short term of imprisonment in relation to that. Probably pragmatically it makes sense to do so, because you are not going to be in a position, I would have thought, to pay a fine and you will end up having to convert the penalty that I am going to impose. But ultimately I have reached the view it is appropriate to impose the same penalty as was imposed upon your older brother. So on Charge 1, that is the charge of theft, I am going to convict and fine you the sum $100.

On Charge 2, the charge off recklessly causing injury, you are convicted and sentenced to a term of 2 years' imprisonment. That is the base sentence.

On the summary offence you are convicted and sentenced to 1 months’ imprisonment.

Cumulation

I direct that the 1 month term imposed on the summary assault is to be served cumulatively, that is on top the base sentence.

TES

38
So this results in a total effective sentence in your case of 25 months or 2 years and

1 months' imprisonment. I fix a period of 13 months during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

39 You have already served 196 days of that sentence, by way of pre-sentence detention and that declaration is to be entered into the records of the court.

Section 6AAA

40 I have taken into account your guilty plea. If you had pleaded not guilty and been convicted of these offences by a jury, I would have sentenced you to 3 ½ years' imprisonment. I would have fixed a non-parole period of 2 years 4 months. That also is to be entered into the records of the court. Grab a seat then for a moment and I will see if there is anything I have overlooked. Any other matters that I need to deal with at all?

41 MS YOUSUFF: Your Honour, just in relation to the PSD, my calculation is 197 including today.

42 HIS HONOUR: I was told it was - including today?

43 MS YOUSUFF: Including today.

44 HIS HONOUR: Well, he's starting his sentence today.

45 MS YOUSUFF: Yes, Your Honour.

46 HIS HONOUR: Yes. So no, I think it's 196. He commences his sentence today. All right, so I'm declaring the 196 days. Any other matters at all?

47 MS YOUSUFF: No, Your Honour.

48 MR LINDNER: No, Your Honour.

49 HIS HONOUR: All right, thanks very much. You'll go down to see your client downstairs, Mr Lindner?

50 MR LINDNER: Yes.

51 HIS HONOUR: All right. Well look, that completes the matter Mr Tamatea. So I'll sign those orders but you can head off downstairs. Mr Lindner will come down and see you downstairs, all right. Yes, thanks very much.

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[2018] VCC 941

20 June 2018