Director of Public Prosecutions v Tamati (a pseudonym)

[2021] VCC 1298

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HEMI TAMATI (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2021
DATE OF SENTENCE:	9 September 2021
CASE MAY BE CITED AS:	DPP v Tamati (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1298

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  One charge of home invasion – one charge of theft of car keys – two charges of theft of a motor vehicle – accused armed with a hunting knife – late plea of guilty – potential deportation a factor

Legislation Cited:           Migration Act 1958 (Cth); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v R (2013) 249 CLR 571; Loftus v R [2019] VSCA 24; R v Verdins (2007) 16 VR 240; Taleb v R [2020] VSCA 329; Jackson v R [2020] VSCA 95; Worboyes v R [2021] VSCA 169

Sentence:Total effective sentence: four years' imprisonment with a non-parole period of two years and seven months' imprisonment.

6AAA declaration: five years and three months' imprisonment with a non-parole period of three years and six months' imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Office of Public Prosecutions
For the Accused	Mr F. Cameron	Victoria Legal Aid

HIS HONOUR:

Introduction

1Mr Tamati[1], at the outset I propose to sentence you to an overall sentence of four years' imprisonment and set a non-parole period of two years and seven months' imprisonment.  I will declare 959 days of your pre-sentence detention as time served under this sentence.

[1] A pseudonym.

2On 27 July 2021 you pleaded guilty to four charges;

(a)   a charge of home invasion;

(b)   a charge of theft of car keys; and,

(c)   two charges of theft of a motor vehicle.

Circumstances

3At about 5 pm on 29 December 2018, you and another person drove to the home of Michael Baxter[2] in Berwick.  You and your co-offender forced open the locked front door of the house and entered.  This constitutes the first charge of home invasion.

[2] A pseudonym.

4You were armed with a hunting knife and demanded cash from Mr Baxter.  The blade of the knife was about 30 centimetres long.  Your co-offender remains unidentified by the police, however, he was a large person.  Mr Baxter was in the kitchen and you went there. 

5You and Mr Baxter conversed.  He wanted to know why you were there.  You said, while holding the knife:

“I'm going to do you in, you organised for me to get shot.”

6Mr Baxter denied the allegation.  You seemed to accept his denial for you then demanded money, which he refused to give you.  He told you to leave and you did, after threatening to return and 'get Leon[3]'.  Leon is the brother of Mr Baxter’s ex-partner.

[3] A pseudonym.

7During the incident, the keys to Mr Baxter’s two cars were stolen from the kitchen table.  These were keys to a Subaru sedan and a Holden utility.  This circumstance constitutes Charge 2.

8After you left the house and drove away, Mr Baxter called the police.  

9A little over an hour later you and two co-offenders returned by car to Mr Baxter’s property.  Using the car keys, you entered and either you or a co-offender drove the utility away.  One of your co-offenders entered and drove the Subaru away. One of you drove the car you arrived in away.  These events constitute Charges 3 and 4.

10One of Mr Baxter’s cars, the Subaru, was involved in an accident on 8 January 2019.  The other car, the Holden utility, has not been recovered.

11You were arrested by police on 9 January 2019.  At the Dandenong police station, you were interviewed.  You denied being involved in these offences.  You went a step further and gave details of a false alibi.  You were charged and remanded in custody.  You have remained in custody since then.

Personal

12You are now 30.  You were born in Auckland.  You are the second eldest of seven full-siblings and another four half-siblings.  You had a difficult childhood.  Your family was very poor.  You were poorly fed.  You stole to help feed your siblings.  You witnessed violence between your parents.  You were injured trying to separate your parents and so badly, on occasions, you needed to go to hospital for treatment.  Your parents divorced when you were five.  After their separation, you went back and forth, living with one parent or the other.  However, you resided mostly with your father because your mother resented your resemblance to your father.

13When you were seven, your mother re-partnered.  However, your stepfather treated you badly, beating you frequently.

14Between seven and 12 you were sexually abused by a family member.  This was a disclosure you made to the psychologist, Ms Latif.  Apart from that, there was no detail.

15You left home at 15.  You were befriended by your father's best friend.  You worked hard and by 18 had bought your own house.  Gradually, out of love, you brought your brothers to live with you.

16Owing to your chaotic living arrangements after your parents separated, you attended many primary and secondary schools.  Surprisingly, and to your credit, you remained in secondary schools until leaving during Year 12.

17After leaving school, you worked in the hospitality industry, rising to become managers of nightclubs.  Despite this success, you decided you had had enough of nightclubs and changed course to become a concreter.  This has remained your occupation.

18In 2014 you came to Australia and started employment with a company which restored historic houses.  You ceased this job about 12 months before your remand into custody in order to care for your partner who was suffering from postnatal depression.

19You started this relationship in 2015.  You are the father of a five year old boy.  You separated in 2018 after her parents found out you and she were using drugs.  Since both of you were living in their home, they turned you out.  Your partner gave birth to a second son after the separation.  You have never met this child, who is now three.

20The breakdown of this relationship has seen you attempt suicide in 2017 and 2018.

21During 2018 you were shot in the thigh.  You thought the shooting was associated with your involvement with drugs.  In the long term, the shooting left you largely unscathed except for a tingling sensation in the leg.

22You started drinking alcohol at 14.  You started to replace alcohol with methylamphetamine in 2017.  By the time of your arrest, you were a consistent and heavy user of methylamphetamine.

Psychologist

23Miriam Latif is a psychologist.  At the request of your solicitors she interviewed you on 29 July 2021.[4]

[4]Report dated 13 August 2021.

24As is usual of psychologists in this context, Ms Latif required you to undertake a series of tests and questionnaires.  Using the results, together with her clinical impressions, she diagnosed you as suffering from two recognised psychological disorders; post-traumatic stress disorder and major depressive disorder.  She also diagnosed you as suffering from two substance related disorders; one in full remission, the other in partial remission, with the remission due to you being in custody.  At the time of your interview, the symptoms of depression, anxiety and stress were at extremely high levels.

25Ms Latif made a series of recommendations concerning your mental health and usage of drugs. 

26Owing to the levels of your symptoms, Ms Latif doubted your ability to cope with a further, presumably lengthy period of imprisonment.  In saying this, she also relied on your thinking about suicide and your attempts.

27Her assessment of your risk of re-offending was low only if you are able to engage successfully in the various recommendations she made.  As such, it is of little immediate value.

Mother

28Nikora Kahurangi[5] is your mother.  She lives in Queensland.  In an email she sent to your solicitor, but addressed to the court, she noted your regret for the offending.  Although she does not mention it, your mother suffers from lung cancer and the prognosis is very poor.

[5] A pseudonym.

Legal considerations

29Home invasion is a Category 2 offence.  The requirement of a sentence of imprisonment for that charge presents no issue for it was not submitted, correctly so, that any exception applies.

30A conviction on the charges of theft of motor vehicle requires the court to interfere with the offender's driver licence or, if that person does not hold one, impose a period of disqualification.[6]

[6]s 89(4) of Sentencing Act 1991 (Vic).

Bugmy

31Your counsel referred to the judgment in Bugmy v R[7].  Relevant to you, the Court affirmed that a deprived background may mitigate an offender's sentence.  That case dealt with an Aboriginal offender but that proposition applies whether you are Aboriginal or not.  It also affirmed that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending.

[7](2013) 249 CLR 571.

32The existence of such deprivation does not necessarily mean a reduction in the sentence.  For example, the court noted:[8]

“An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

[8]At [44].

33Your childhood was very deprived and involved exposure to violence, whether witnessed or inflicted on you.

Deportation

34You are not an Australian citizen or a permanent resident. You are a New Zealand citizen.  It is unclear what type of visa allows you to stay in Australia.  Under the relevant provisions of the Migration Act 1958, my sentence of imprisonment will mean the relevant Minister must cancel your visa. However, he or she retains the power to revoke his or her cancellation.

35In Loftus v R[9] the court said:

“The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.”

[9][2019] VSCA 24 at [79].

Verdins

36Your counsel relies on propositions or limbs five and six set out in the case of
R v Verdins[10].  The court explained the relevance of impaired mental functioning to sentencing.  Proposition five says:[11]

“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.”

[10](2007) 16 VR 240.

[11] Ibid at [32].

37Proposition six says:[12]

“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.”

[12] Ibid.

Discussion

38Each of the purposes for which sentences may be imposed are relevant in your case.  There is a need to punish you to the extent and in a manner which is just in all of the circumstances.  My sentences should deter you and other persons from committing offences of the same or similar character.  They should establish conditions within which your rehabilitation may be facilitated.  They should manifest the denunciation of the type of conduct in which you engaged.  They should protect the community from you.

39Your prospects of rehabilitation are very uncertain.  Despite your mother's comment, you are not remorseful for your actions.  There is no evidence that you have used your time in custody to rehabilitate yourself.  Ms Latif's recommendations for future treatment revolve around your mental health issues and drug habit.  Whether you engage with such services remains to be seen.

40In sentencing you, I must also have regard to various other matters.

Maximum penalties

41The maximum penalty for the charge of home invasion is 25 years' imprisonment, while for theft it is 10 years' imprisonment.

Current sentencing practices

42Regarding current sentencing practices, your counsel referred me to statistics concerning the sentencing of home invasion published by the Sentencing Advisory Council. While counsel for the Director referred me to the judgments of the Court of Appeal in Taleb v R[13] and Jackson v R[14].

[13][2020] VSCA 329.

[14][2020] VSCA 95.

Nature and gravity of offences

43The charge of home invasion is serious because you forced open the front door of Mr Baxter’s house, you were accompanied by a co-offender and you were armed with a large knife. 

44The other charges are in the medium range of seriousness.

Culpability and degree of responsibility

45Your culpability for these offences is high.  There is no factor which lessens your blameworthiness.

Impact on the victim

46Mr Baxter has not made a victim impact statement.  Nevertheless, I agree with the prosecution's submission that the events would have been terrifying for him.

Guilty pleas

47You entered these pleas of guilty on 27 July 2021.  The charges were listed for trial on 2 August 2021.  From the perspective of timing they occur late in the process which starts with you being charged and usually ends with the completion of a trial.

48Nevertheless, your pleas of guilty have what is called a utilitarian benefit.  By doing so you have facilitated the administration of justice.  That is, you have brought these charges against you to an end sooner than would have been the case if there had been a trial.  Accordingly, it saves the State from the expense of a trial.  You have also relieved the 18 prosecution witnesses of the need to give evidence at a trial.  Although the majority of those witnesses are members of the police force, four were not.  No doubt the giving of evidence by them and, to a lesser extent, the police members, would be an arduous task.

49Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in a case of Worboyes v R, to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time.  It is worth quoting a passage from the Court's judgment which shows the emphasis it placed on pleas of guilty in this time of restriction[15]:

“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.”

[15][2021] VSCA 169 at [35].

50Your counsel concedes your pleas of guilty are not evidence of remorse, noting your denial of the offending when speaking to the psychologist, Ms Latif.[16]

[16]See [52] of the report dated 13 August 2021.

51Despite the lack of remorse, your pleas of guilty are entitled to a greater discount than that which I would have made in normal times.  Overall, the discount is very significant.

Previous character

52You have only one previous court appearance.  On 21 December 2018 at the Magistrates' Court at Dandenong, you were convicted of 11 charges and fined, with conviction, an aggregate amount of $1,000.  One of the charges was theft of a motor vehicle and any licence or permit to drive a motor vehicle was cancelled and you were disqualified from obtaining another licence or permit for nine months.

53These charges formed what is known colloquially in the Magistrates' Court as a 'consolidated plea'.  I was given the statements of five police members who brought the charges against you.  They describe offending occurring between 19 June 2018 and 12 August 2018.

54The present offences occurred on 29 December 2018.  For a person then aged 27, it is a very short criminal history, bearing in mind you have lived in Victoria since 2014.  It is likely your addiction to methylamphetamine played a part in the commission of the present offences.

Other aggravating or mitigating factors

55You are acutely aware of the possibility of deportation following my sentencing.  This awareness raises the two effects identified by the court in the case of Loftus v R.  First, the prospect of deportation has made your imprisonment more difficult.  Your two children live in Victoria.  Your mother lives in Queensland and is seriously ill.  If deported you are unlikely to be allowed to return to Australia in order to see them.  Second, you will lose your opportunity to settle permanently in this country.

Verdins

56I consider propositions or limbs five and six of Verdins apply.  The opinion of
Ms Latif provides the basis for their application.  At paragraph 86 of her report she says:

“There are some concerns regarding Mr Tamati’s ability to undertake a longer custodial sentence.  He has been remanded for a significant period of time and his presentation at assessment suggested he was suffering from extremely severe levels of anxiety, depression and stress.  Mr. Tamati has not accessed mental health supports in custody and it is strongly recommended that he be assessed psychiatrically given his history of suicidal ideation/suicide attempts.  Further I note Mr. Tamati  was moved to Port Phillip Prison two weeks prior to the assessment following threats to kill from another inmate indicating his physical safety has been compromised previously, likely placing extra pressure and strain on Mr. Tamati’s already fragile mental health.”

57Both propositions act to mitigate the penalty I would otherwise impose.

Sentence

58Charge 1: being a charge of home invasion, you are sentenced to three years' imprisonment.

59Charge 2: being a charge of theft of the car keys, you are sentenced to six months' imprisonment.

60Charge 3: being a charge of theft of a motor vehicle, the Subaru, you are sentenced to one year and six months' imprisonment.

61Charge 4: being a charge of theft of a motor vehicle, the Holden utility, you are sentenced to one year and six months' imprisonment.

62Charge 1 is the base sentence.  Six months of the sentence on each of Charges 3 and 4 are to be served cumulatively upon the sentence on Charge 1 and upon themselves.  The sentence on Charge 2 is to be served concurrently.  The total effective sentence is four years' imprisonment. 

63I will set a non-parole period of two years and seven months' imprisonment.

Pre-sentence detention

64Excluding today you have spent 959 days in custody for the offences before me.  You have spent a further 15 days in custody but they are due to other, unrelated charges.

65I declare that the 959 days you have spent in custody are to be reckoned as time served for these sentences.

Licence

66Any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining another licence or permit for a period of one year.

Section 6AAA

67Finally, if you had not pleaded guilty and had been found guilty at trial, I would have imposed a total effective sentence of five years and three months' imprisonment and a non-parole period of three years and six months' imprisonment. 

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