Director of Public Prosecutions v Tamati

[2022] VCC 1518

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00872

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JAHDON TAMATI

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2022
DATE OF SENTENCE:	31 August 2022
CASE MAY BE CITED AS:	DPP v Tamati
MEDIUM NEUTRAL CITATION:	[2022] VCC 1518

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Imprisonment, Total Effective Sentence 4 years and 6 months. Non-parole period 3 years and 3 months. $1000 fine. Disqualification from driving and disqualified from obtaining a Learner Permit for 2 years. Driving offences committed under influence of drugs. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Lewis	Ms B Cox
For the Accused	Mr L. Gwynn	Mr S Parker

HIS HONOUR:

1Jahdon Tamati, you have pleaded guilty to one charge of theft, one charge of aggravated offence of recklessly exposing emergency workers to risk by driving, one charge of assaulting an emergency worker, and one charge of handling stolen goods.  In addition, you have pleaded guilty to seven summary offences:  fraudulent use of a registration plate, failing to stop a motor vehicle after an accident, unlicensed driving, possession of a controlled weapon, dealing with proceeds of crime, driving while drug-impaired, and failing to comply with a stay-at-home direction of the Chief Health Officer. 

2The facts of your offending are set out in Exhibit A, the prosecution plea opening.  Save for one minor issue as to your knife you were carrying, your counsel conceded that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein. 

3Very briefly stated, on 14 August 2020, police located you and an associate walking in Simmonds Street, South Yarra.  Police spoke to you both.  You should not have been on the street as the COVID-19 lockdown was in force.  When police conducted enquiries, they became aware that you were wanted on warrant.  You ran away.  Police pursued you. 

4You ran to a stolen motor vehicle parked nearby.  First Constable Ellison grabbed you and tried to get you out of the vehicle.  You resisted and struggled.  First Constable Lanza threatened you with capsicum spray.  You were repeatedly told that you were under arrest.  First Constable Lanza got into the passenger's side of the stolen Range Rover whilst First Constable Ellison had his feet inside the driver's side of the car, trying to pull you out of it. 

5You put the car into reverse and accelerated backwards.  First Constable Lanza managed to get her feet out of the car and onto the ground.  Ellison was hanging on to the driver's door.  Travelling at about 13 kilometres per hour, the vehicle hit three vehicles parked behind it, and First Constable Ellison was thrown over the stationary vehicle and onto the footpath.  He was injured and bleeding.  You drove away forward, and Lanza managed to step out of your way. 

6The incident was brief and brutal.  It is captured by a nearby residence on a camera - Exhibit F - and that film graphically demonstrates the risk you created by your reckless conduct. 

7You drove the vehicle into a nearby block of flats, collided with a concrete support, and ran away on foot.  Police captured you 200 metres away and located a knife in your waistband.  You were unlicensed, and subsequent blood tests detected high quantities of methylamphetamine in your blood.  A large quantity of stolen goods was located in the stolen Range Rover together with numerous keys, phones, and jewellery suspected of being the proceeds of crime.  When taken to hospital, you were found to be positive for COVID-19.  Police had to isolate for 14 days as a result. 

8First Constable Ellison suffered abrasions and bleeding to his left and right elbows, abrasions and bleeding to his right arm, abrasions to his arm, hand, and wrist, and a tender left hip.  First Constable Lanza suffered bruising to her knee and left shin.  Photographs in Exhibit D depict these injuries.  Victim impact statements were filed by both First Constable Ellison and First Constable Lanza.  Both were significantly affected by your crimes.  Both are troubled by what could have happened, and I take the contents of each of the victim impact statements into account in sentencing you. 

9You have admitted a prior criminal record.  In October 2011 in this court, I sentenced you to seven years and six months with a non-parole period of five years for offences of intentionally causing injury, false imprisonment, intentionally cause injury, and common assault.  My reasons for sentence are Exhibit G on this plea.  In June 2012, the Court of Appeal resentenced you to six years with a minimum of four years and three months non-parole period.  On 4 July 2020, you were sentenced to 37 days' imprisonment for unlicensed driving by two charges and affixing a false number plate. 

10Your personal history is set out in Exhibit 2, the psychological report of Ian McKinnon.  You were born in Australia, raised by parents who came from
New Zealand.  You are the youngest of four brothers.  You resided with your family in Altona until you were five years of age when you then moved to
New South Wales.  You describe your childhood life as good, involved with sport, you were a close family, and no criminal activity. 

11At the age of 16, you lost your father.  Compounding that loss, at the age of 25, you lost your mother.  Your father was a warehouse worker who died of a heart attack at the age of 47.  Your mother worked as a process worker and died at the age of 50 as a result of breast cancer.  When she died, you were in prison serving a sentence to which I have reported. 

12You have one child, a daughter 14 years of age who resides with her mother at Hoppers Crossing, and you had some contact with that daughter prior to being remanded on these matters. 

13You went to primary school in Wollongong before moving to Sydney, and then you attended Patrician Brothers' College in Blacktown.  You completed Year 10.  Leaving school at the age of 16 after your father passed away, you obtained work as a factory worker, and you were working as a steel fixer in 2020 after you were released from prison, but you found yourself unemployed because of the effect of the COVID pandemic. 

14You have had a history of substance abuse.  You started drinking alcohol and smoking cannabis when you were 16 years of age after your father's death.  At the age of 17, your drinking increased, and throughout your early adulthood, you used amphetamine, MDMA, cocaine, methylamphetamine, and you smoked ice.  At the time of the offences for which I am to sentence you, you were habitually using ice and GHB, telling the psychologist that you used 3.5 grams of ice a day and 2 mil of GHB. 

15The psychologist is of the view that you were suffering from dysrhythmia and recurrent depression.  Mr McKinnon reports, prior to your remand, you were suffering a polysubstance use disorder and that your criminal history suggests that you give in to antisocial criminal and violent tendencies.  Finally, Mr McKinnon reports that, at the time of his assessment, you were presenting with genuine remorse and regret over your criminal history and your conscious appeared to be troubling you.  Mr McKinnon concluded:

'In my opinion, upon his eventual release from prison, Mr Tamati will pose a significant risk of further serious offending if he relapses into substance abuse.  In a sober state, Mr Tamati presented in a reasonable manner, remorseful and depressed over his offending and imprisonment'. 

16You are hoping to gain employment with your brother when you are released. 

17In sentencing you in 2011, I said, at paragraph 31 of Exhibit G:

'Your prospects of rehabilitation, in my view, are good.  You have no prior convictions, have expressed remorse and display victim empathy, and enjoy family support and have employment available.  Provided you control your alcohol intake and remain drug-free, you have every prospect of being a reasonable member of the community.  You have involved yourself extensively with voluntary work at your rugby club, and you impress as a young man who has the ability to make something of your life'. 

18Well, Mr Gwynn submitted that this was still the case in relation to you. 

19Drugs have been your downfall, and you have committed serious crimes when you have been intoxicated by ice.  You apparently briefly worked after you were released from custody, but when you were laid off, you reverted to illicit drug use.  You were homeless at the time you offended.  You were keeping company with another released prisoner and, as you told the psychologist, smoking significant amounts of methylamphetamine and using GHB.  It is unclear to me how you managed to pay for these drugs. 

20You have been a remand prisoner for the 747 days that you have been in custody.  As such, you do not have access to the programs in education available to sentenced prisoners.  You also have spent time in protection, making your time in custody more onerous for you.  COVID lockdowns and lack of visits add to the burden of imprisonment for you. 

21I take into account your pleas of guilty.  I accept that they were entered at an early opportunity, and you are therefore entitled to a significant reduction to reflect those pleas of guilty.  Those pleas have increased value because of the COVID-19 pandemic and the effect that it has had upon our justice system.  You have further facilitated the course of justice. 

22Your prospects of rehabilitation depend entirely on your ceasing illicit drug use.  You claim to be determined to be drug-free and have employment available with your brother in Queensland.  As Mr McKinnon reported, your prospects are poor unless you get drug rehabilitation and counselling to address your underlying grief issues. 

23You have written a letter to the court apologising for your conduct and expressing a desire to change your life and to make better choices.  I can only hope that you follow through on that expressed desire and change your ways, or you are likely to find yourself back where you are now. 

24The principal sentencing factors in your case are general deterrence, specific deterrence, denunciation of your conduct, and protection of the community. 

25Your conduct in driving in that stolen vehicle in the way you did represents a serious example of a serious offence.  By continuing to drive and crashing into those stationary vehicles, you assaulted First Constable Ellison. 

26I have been careful to avoid double punishment for Charge 2 when considering the appropriate sentence for Charge 3.  I have been assisted by the Court of Appeal decision in Hutchinson [2021] VSCA 235. It is clear that the reasoning set out in paragraphs 56 to 63 of that judgment have application in your case.

27The aggravated offence of recklessly exposing an emergency worker to risk by driving is a serious motor vehicle offence within the meaning of s87P(ba) of the Sentencing Act. The court is required to disqualify you from driving a motor vehicle for at least two years. I will also make an order pursuant to s89C(1) of the Sentencing Act that Charge 2 was committed while you were under the influence of a drug, which contributed to your offending. Section 16(3D) of the Sentencing Act mandates that a sentence for Charge 2 must be served cumulative on other terms of imprisonment unless the court otherwise directs.  On all charges, you are convicted.  Would you stand up, please, Mr Tamati? 

28On Charge 1, theft, you are sentenced to be imprisoned for 12 months. 

29On Charge 2, the aggravated offence of recklessly exposing an emergency worker to risk by driving, the rolled-up charge for the two workers, you are sentenced to be imprisoned for three years. 

30On Charge 3, assaulting an emergency worker on duty, you are to be imprisoned for 12 months. 

31On Charge 4, the offence of handling stolen goods, you are sentenced to be imprisoned for six months. 

32On Summary Offences 15, fraudulent use of a number plate; 17, failing to stop after an accident; 19, unlicensed driving; 20, possession of a controlled weapon; and 25, dealing with proceeds of crime, you are sentenced to an aggregate term of imprisonment of six months. 

33On Charge 30, driving whilst being drug-impaired, you are fined $750, and on Charge 23, failing to comply with the directions of the Chief Medical Officer, you are fined $250. 

34I order that six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 3, and three months of the sentence imposed on Charge 4 will be served cumulatively on the sentence imposed on Charge 2, which I declare to be the base sentence.  Further, I order that three months of the sentences imposed on the summary offences be served cumulatively on Charge 2.  That is an effective term of imprisonment of four years and six months, and I order that you serve three years and three months before being eligible for parole. 

35I make the finding, pursuant to s89C(1) of the Sentencing Act, that Charge 2 was committed under the influence of a drug, which contributed to the offence. You are disqualified from driving a motor vehicle for two years on Charge 2 and disqualified from obtaining a learner's permit for two years on Charge 1, and those disqualifications will commence on 1 September 2023. I make the forfeiture orders sought by the prosecution. I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of six years and six months with a non-parole period of four years and six months.

36Are there any other orders required, Mr Lewis? 

37MR LEWS:  No, Your Honour. 

38HIS HONOUR:  Mr Gwynn? 

39MR GWYNN:  No.  Thank you, Your Honour. 

40HIS HONOUR:  All right.  Terminate the link, please. 

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