Director of Public Prosecutions v Tanaka

[2019] VCC 1654

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-15-01288

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY TANAKA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	9 October 2019
DATE OF SENTENCE:	11 October 2019
CASE MAY BE CITED AS:	DPP v Tanaka
MEDIUM NEUTRAL CITATION:	[2019] VCC 1654

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Bates	Valos Black

HIS HONOUR: 

1Cody Tanaka, you have pleaded guilty to one charge of threat to kill and a number of uplifted summary matters.  I have exhibited the summary of those uplifted matters, they essentially relate to breach of an intervention order of a fairly trivial nature in my view, but in these circumstances, I will impose a short concurrent gaol sentence on each.  The main charge to be dealt with is a threat to kill.

2On 13 May last year, you attended at your former partner's house and an altercation took place. That is not in dispute.  Consequent to that altercation, police were called and were present at the house in Seymour when you telephoned your ex-partner.  There is a tape of that telephone conversation and in the course of that, you say to her, after she says, 'It's not the fuckin' point, you smashed me, I was naked, I was in the fuckin' bath.'  You said to her,
'You had sex with somebody else.'  And she said, 'So what, it's my life.' 
You said, 'You're fucked, I'm gonna kill ya, you're dead.'  That gives rise to the threat to kill charge. 

3Threat to kill in some circumstances can be a very serious offence.  In other circumstances, not quite so serious.  This is a situation where you do have prior convictions for it and accordingly, you are to be sentenced as a serious sex offender.  There are no ‑ ‑ ‑

4OFFENDER:  A what?

5HIS HONOUR:  There are no other charges.  Sorry, a serious violent offender.

6OFFENDER:  Oh.

7HIS HONOUR:  I can sentence you as a serious sex offender if you want.

8OFFENDER:  No, please no.  That's why I was in shock, sorry.

9HIS HONOUR:  And I will register you for life if I do.

10OFFENDER:  I don't think I'd ever get out.

11HIS HONOUR:  Just stay calm.

12I am aware of the provisions that require cumulation.  There are no other indictable matters for it to be cumulative upon and the Crown obviously do not, in this situation, seek a disproportionate sentence.  Obviously protection of your former partner has to play a significant part in this.

13The circumstances of that threat to kill are that you were not present.  It was in the fairly heated conversation.  I have heard her attitude towards you on that tape.  Had you been present with a knife or had you been holding her or very close to her, I would have regarded it as much more serious.  I accept in these circumstances that where there is clearly a history of family violence or domestic violence and your criminal history, which is extensive supports that it may well have simply been venting, though at that moment in time, done with the intent to frighten her.  Indeed, by pleading to it, that admission is made.

14There is no victim impact statement and I heard the complainant give evidence during the course of the trial.  I have got a pretty good idea what her attitude to all this would be.

15It also seems that despite you previously having done a very significant sentence for assaulting her on a couple of occasions. She allowed you or asked you to come back and be in a relationship with her again.  That is all part of the milieu in which this took place.

16I point out for the purpose of this transcript that you went to trial on other matters in regard to that altercation of which you were acquitted.

17The maximum penalty for threat to kill is 10 years.  The maximum penalty for all the other matters is about three months for each, I suspect.

18In these circumstances, I also have just dealt with a breach of a community corrections order which was imposed in relation to assaults on your former partner and concepts of Renzella come into play.  As discussed with counsel, the simplest bet, I think here, is that I simply sentence you to be imprisoned for the time that you have served plus a couple of days to give you a chance to arrange for yourself to be released.  These are circumstances where I think there would be no point in me imposing a non-parole period because a straight sentence is clearly the best way to deal with all of this.

19Prospects of your rehabilitation are up to you.  The risk of you reoffending, I suspect, if you maintain a relationship with her is going to be high but again, there is nothing I can do about that.

20Accordingly, in all the circumstances, on each of both related and unrelated summary matters, each of them I sentence you to serve a sentence of seven days' imprisonment.  Each of those are to be concurrent with each other and concurrent with the sentence imposed upon the indictment.

21On the charge of threat to kill, I sentence you to be imprisoned for a period of 517 days and I direct that 515 days be reckoned as having been served under that sentence.

22I think 6AAA is meaningless here after a trial.

23MR BROWN:  He pleaded.

24HIS HONOUR:  I know.  Well he pleaded guilty halfway through the trial.

25MR BROWN:  Yes.

26HIS HONOUR:  All right.

27MR BROWN:  As late as you can get.

28HIS HONOUR:  Yes, all right.  Section 6AAA, 600 days for a relatively late plea of guilty.

29All right, no other orders, does that all make sense?

30MR BATES:  Yes, Your Honour.

31MR BROWN:  Yes, Your Honour.

32HIS HONOUR:  All right.  So you have got 517 days, 515 served.  That gives you a couple of days to get your act together for getting out, all right.  And you understand the CCO is gone, it is finished and all the summary matters are finished and you will now be taken - well I do not know about now but at some stage today, you will be taken to the Magistrates' Court and as I understand from counsel, the persistent breach charge will be withdrawn and that should make an end of it in a couple of days.

33OFFENDER:  Thank you, Your Honour.

34HIS HONOUR:  All right.  Nothing else we need to do, gents?

35MR BATES:  No, Your Honour.

36MR BROWN:  No, Your Honour.

37HIS HONOUR:  All right.

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