Director of Public Prosecutions v Tanaka

[2016] VCC 822

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01288

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY TANAKA

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 June 2016
CASE MAY BE CITED AS:	DPP v Tanaka
MEDIUM NEUTRAL CITATION:	[2016] VCC 822

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Parnham	Office of Public Prosecutions
For the Accused	Mr S. Moglia	Dribbin & Brown

HIS HONOUR: 

1Cody Tanaka, you have pleaded guilty to one charge of having contravened a Family Violence Intervention Order and intending to cause harm or fear of safety; one charge of causing injury intentionally; one charge of damaging property; and another of assault.

2Upon the plea the prosecution tendered a summary of the factual circumstances and that document was exhibited and will be retained on the court file.  For purposes of this sentence, it will suffice to recite the salient circumstances.

3You and the victim, to whom I shall refer to as "K" were in a relationship for four years.  The two of you have had two children.  "K" also has three of her own children. 

4In January 2014, an intervention order was made which prohibited you from committing violence upon her and attending at her address.  On 21 January 2015, at 8 am, you entered the home where she slept, went to the bedroom and pulled her out of bed by her legs onto the floor.  You were yelling, "I want answers.  Everything is my fault."

5When "K" went to the toilet, you entered that room and punched her to the right eye, cutting her eyebrow and causing bruising.  "K's" clothes stopped the blood flow while getting dressed.  She realised the wound required medical attention so she got into her car.  You apologised and said she had fallen onto your knee but that was not the case.  She required eight stitches to her eyebrow and was bruised to her eye and legs and had scratches to her right upper arm and left elbow.

6Photographs of the injury were exhibited and illustrate the severity of the injury, particularly the injury to the eye.

7She was placed in emergency accommodation with her children. 

8Later that month, on 29 January 2015, at half past midnight, you went to the motel where "K" was staying and knocked repeatedly on her bedroom window and front door.  You said, "Open the fucking door."  You were endeavouring to force the door which was damaged.  "K" was frightened and her 11 year old son asked her to open the door as you were threatening to "make a scene."  She opened the door and you told her the car had broken down.  She ran out of the front door and was running down the stairs when you grabbed her arm and pulled at her yelling, "Just get inside."  "K" was yelling for help and you released her. 

9You ran off and you were arrested nearby shortly afterwards.  When questioned you said "K" had fallen over and injured her eye in the fall in the bathroom, hitting her head.  You said she had invited you to the motel.  You have been remanded in custody since that day.

10During that period of pre-sentence detention, you served a sentence of
102 days. 

11In July 2015, a contested committal was held and you were remanded for trial.  In December 2015 a final directions hearing was held and in February this year you were finally arraigned and pleaded guilty.

12A victim impact statement was tendered and in that statement "K" outlines that her right eye is scarred and deformed in consequence of the injury.  She experiences panic attacks, she is fearful and hyper vigilant.  The sense of betrayal has been devastating to her wellbeing.  Even more importantly, her custody of her children has been jeopardised and the situation is precarious in terms of her health, her future, her accommodation and her relationship with her children.

13I consider that these instances of violence are serious and the court must endeavour to denounce your behaviour in the strongest terms in order to deter you specifically, and others who are like-minded, by just punishment for such wanton violence in a domestic setting.

14Such violence is just as damaging and abhorrent as random violence and is often, as in this case, accompanied by profound trauma well beyond the physical injuries inflicted, caused by the subjugation of others, usually vulnerable and susceptible victims at the mercy of a stronger and violent person who professes to care and love them, while traumatising them (as well as their children) with anger and brute force.

15Causing injury intentionally carries a maximum of ten years and by this the law indicates its relative gravity.

16I take your plea into account.  Although it was not offered at the earliest opportunity, I will consider that the plea should attract an appropriate discount in recognition that, by its entry, you have taken responsibility for the offending.  It also has a utilitarian value of having avoided if not the committal, at least the criminal trial to follow, saving the complainant the ordeal of giving evidence and saving the cost of a trial.

17I take your personal circumstances into account. 

18You have a prior criminal history which I consider when assessing your prospects of rehabilitation. 

19Your priors begin in 1994-1997 with dishonesty offences and in 2000 with possession and use of heroin.

20In 2001, you were convicted for assault and breach of an intervention order and placed on a community-based order.  That order included an anger management program condition.  On the same occasion you were dealt with for a number of driving offences, dishonesty offences and weapons offences, which added suspended sentences to the community-based disposition.  Within a month you had breached the suspended sentence and the community-based order.

21By March 2002, you were placed on an intensive corrections order for a bomb hoax and a further breach of intervention order.  In September of that year you breached that intensive corrections order.

22In 2006, a suspended sentence was imposed for handling stolen goods.

23In 2009, driving and dishonesty offences were dealt with partially suspended sentences.

24In February 2010, you were sentenced to 15 months imprisonment, with a one month non-parole period for intentionally causing injury, contravention of Family Violence Intervention Order, making threats to kill and criminal damage.

25In August 2012, you were placed on another community corrections order with conditions of judicial monitoring for 12 months for impersonating a public official, impersonating a returned soldier wearing a defence uniform to bring contempt and improper use of service decorations.

26More relevantly, in January 2014, you were again imprisoned for contravention of Family Violence notices and assault. 

27It is clear from this record that the sanctions of the court in the past have had little deterrent effect on your conduct, particularly in the context of domestic violence.

28You are aged 40 years.  Your parents separated when you were six, but not before you were molested sexually by your own father.  You were removed from the family home for a while, but then lived with your mother and grandparents.  Your mother re-partnered with a man who was abusive to all family members and later she again separated from him.

29You went to Xavier College where you successfully completed Year 11, before commencing work.  You have not been effectively out of work from that time which is to your credit.

30You and your first partner moved to Traralgon where you completed a carpentry apprenticeship.  You worked in the building industry for about ten years.  You remained in this relationship for about four years.  At age 28 you switched careers and obtained qualifications in computer programming and consequently worked as a programmer and designer.

31Your second relationship also lasted four years.  That lady committed suicide after the loss of your son.  You also had two older children with whom you have regular contact. 

32You re-partnered with "K", the victim in these matters, and she has care of the children you had together. They are aged three and
14 years.  You are said to be keen to resume full time care of at least some of your children when released from custody. 

33The relationship with "K" was turbulent and you now accept it is over.  There was drug use and many arguments with alcohol abuse, also.  Your own history of drug abuse has been long and difficult.  You were a heroin addict from age 14 to age 28, at its worst using some $400 per day.  You used cocaine and speed.  You drank alcohol daily to excess.

34Carla Lechner, a consultant psychologist, provided the court with a report of your assessment, dated 2 May 2016.  She reports you have suffered a mood disorder for much of your adult life.  You reported to her that you had been diagnosed with a bipolar mood disorder, but she could not confirm such a diagnosis.  She wrote you were attacked with a bat in 2001 and she posited the possibility of an acquired brain injury and a range of post-traumatic symptoms exacerbated by being shot at in 2005 in a case of mistaken identity.  She noted you are currently on mood stabilising medication.

35She conducted some tests and found you to be moderately depressed and, more importantly, a moderate risk of violent behaviour.  You have been, on your reporting, abstinent from drugs and stimulants for some seven years, but probably still have an issue with alcohol.  At the time of these offences you had not taken your medication and had drunk alcohol.  It is clear that you are easily overwhelmed by social and emotional factors which cloud your judgment.  Your management of negative feelings are expressed and develop into anger.  You expressed some regret and shame to her for your offending. 

36A report of Dr Collier, dated January 2015, was tendered and this confirmed that at that time, in the doctor's view, you were experiencing symptoms of anxiety, depression and passive-aggressive disorder.  He referred you to the Pine Lodge Clinic to see a psychiatrist, and prescribed Xanax.

37Two further documents concern this aspect.  One was a discharge summary of 20 February 2015, post remand from St Vincent's Hospital to Port Phillip Prison from the neurology unit where you had been treated for a migraine and paraesthesia.  This suggested migraine rather than stroke, giving you a history of seizures.  The second was a review by the psychiatric nurse of 14 December 2015 where epilepsy was noted, together with Olanzapine medication which was producing a stable mental state.

38It was acknowledged during your plea that you have a long term mood and anger management issue, that your relationship with "K" was dysfunctional and is now at an end with no contact for more than a year.  It was acknowledged that your plea, remorse and insight, together with stability of mood through medication represented a sound basis for rehabilitation.  Your history suggests that the road ahead will be arduous and your prospects for rehabilitation are guarded.

39I accept that your good relationship with your mother has a positive protective factor and that the medical issues may well make your time in custody somewhat more onerous, although currently you are stable and making use of the time in reclusion to keep fit.  I will take into account the evidence regarding your mental state. 

40I do not accept that this is a classic Verdins case, but some features of this background, to my mind, call for sensible moderation of general and specific deterrence, if only to enable you to access a structured post-release program which may address some of the issues raised.

41Recently, you have also lost your young son. It would appear this happened by his own hand.  This is an added trauma.  The family support at this time is a significant setting for your reintegration.

42However, although acknowledging that time away from this positive structure may be detrimental, it is also clear that imprisonment must form part of any approach in this sentence.

43Of late, I have been told that your family situation at home has been made worse by the recent diagnosis of cancer of your uncle, who lives with them at home. This will add further to your burden.

44I have received the report from Community Corrections and intend to impose a community corrections order upon you after your release from imprisonment.  That order will stay in place for 12 months with conditions that you perform
250 hours of unpaid community work, that you receive assessment and treatment for alcohol and mental health issues and to undertake programs to reduce re-offending.  You will be subject to supervision.

45I also take into consideration for purposes of totality, the sentence served during your period of remand.  I note that you have served a period in custody by way of pre-sentence detention excluding today which I make 373 days.  Is that correct?

46MS PARNHAM:  No, Your Honour, 402 days.

47HIS HONOUR:  So 402?

48MR MOGLIA:  I agree with that.

49HIS HONOUR:  I will note in the records of the court that you have spent 402 days by way of pre-sentence detention.

50On the charge of the contravention, you are convicted and sentenced to nine months imprisonment.

51On the charge of intentionally cause injury, you are sentenced to 15 months imprisonment.

52On Charge 3 of damaging property, you are convicted and sentenced to three months imprisonment.

53On Charge 4, the assault, you are convicted and sentenced to nine months imprisonment.

54I order two months on Charge 1, three months on Charge 4 to be cumulative on Charge 2, making a total of 20 months.

55But for your plea I would have sentenced you to two and a half years with a non-parole period of 18 months.

56I have signed orders in relation to the obtaining of a biological sample from you for placing on the database under s.464ZF.

57The corrections order will be in place for 12 months with the conditions that I highlighted before.

58MR MOGLIA:  As Your Honour pleases.

59MS PARNHAM:  As Your Honour pleases.

60HIS HONOUR:  Take a seat, you will have to sign some papers.

61(Section 464ZF order signed and acknowledged.)

62(Community corrections order signed and acknowledged.)

63I will stand down.

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