Director of Public Prosecutions v Tapatas
[2023] VCC 1038
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00416
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE TAPATAS |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 June 2023 | |
DATE OF SENTENCE: | 16 June 2023 | |
CASE MAY BE CITED AS: | DPP v Tapatas | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1038 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Intentionally cause injury – theft - resist emergency worker on duty - use prohibited weapon
Legislation Cited:
Cases Cited:
Sentence:15 months' imprisonment plus 24-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms U. Ramachandran | Office of Public Prosecutions |
| For the Accused | Mr D. Thomas | Victoria Legal Aid |
HIS HONOUR:
1George Tapatas, you have pleaded guilty to: one charge of intentionally causing injury, for which the maximum penalty is imprisonment for 10 years; one charge of theft, for which the maximum penalty is imprisonment for 10 years; and to one charge of resisting an emergency worker on duty, for which the maximum penalty is imprisonment for five years. You have also asked me to take into account and have pleaded guilty to a related summary offence of using a prohibited weapon, for which the maximum penalty is imprisonment for two years.
2You have admitted a prior criminal record, although I don't regard it as having any significance so far as the sentencing in this case is concerned.
3The prosecution has relied on the salient parts of Exhibit A. They have been read out to the court a few minutes ago, and I'm not going to repeat them. Suffice to say that the incident which gave rise to these charges occurred on 18 May 2022, when you attended a 7-Eleven store in Elizabeth Street in Melbourne and engaged in the theft of some items from the shop. When you were challenged by the shop attendant you reacted by drawing a knife and stabbing him repeatedly in the back of the neck and the head, causing him injury. You then left the store. You were arrested the following day. When challenged by police, you responded by resisting the police but were overpowered and eventually arrested.
4You have been in custody since then. The prosecution sought to rely upon a victim impact statement from the victim of Charge 1. However, because the policy of the Director of Public Prosecutions is not to seek such a statement until after a sentence indication has been given rather than in preparation for a sentence indication hearing, it became impossible to obtain the victim impact statement in a timely manner to enable the case to proceed to sentence immediately. To obtain such a statement would have necessitated the matter being adjourned for almost two months.
5Your counsel objected to that occurring and I have taken the view that it was clear that the victim would have suffered a good deal of fear, would have been terrified, probably in fear for his life at the time of the incident and, although he was fortunate not to have suffered any serious permanent injury, he suffered sufficient injury to be taken to hospital and treated. Inevitably he would have suffered some longterm psychological consequence as a result of the attack and I take that into account in determining an appropriate sentence.
6Your counsel has provided me with defence submissions which are Exhibit 1 and a psychiatric report dated 25 April 2023 which is Exhibit 2 on the plea. He has summarised the submissions that he made in support of the application for a sentence indication hearing and they are all relevant to the plea hearing which has followed today.
7You are now 26 years of age; you were 25 at the time of the offending. You grew up in New South Wales, substantially under the care of your mother, your parents having separated at an early age. You have a sister who suffers from schizophrenia and resides in a mental health facility in New South Wales.
8You came to Victoria in 2002, a week prior to the offending. You were living in a rooming house in Elizabeth Street in Melbourne without means to support yourself. Hence you went to the 7-Eleven to obtain some food. That visit led to the offending conduct.
9Significantly, the psychiatric report of Dr McInerney sets out a history of your mental illness which first became evident in 2021. She describes the first episode as occurring in October 2021 when you were admitted to hospital in Sydney. Your illness was characterised by multiple persecutory delusional beliefs including that you had been poisoned with amphetamines or sedatives, that your parents, the government and someone with military connections had taken out a contract to have you tortured and killed and that childhood friends had been drugged into assisting in the plot to kill you.
10You were prescribed medication. But you ceased using that medication shortly after discharge from hospital in Sydney. You were deemed not to meet the threshold for involuntary treatment, and therefore no further mental health care was provided.
11After your arrest and upon your arrival at prison you were found to be psychotic, and you were admitted to the Thomas Embling Hospital from June to August 2022. You were treated there but you had to return to the Thomas Embling Hospital in October after a further episode. For the most part since your return to your present prison, you have been transferred to the St Paul's Psychological Rehabilitation Unit from November last year. You have been housed predominantly in that facility in order to monitor your illness.
12Significantly, Dr McInerney says this, at paragraph 8.2 of her report,
‘I am satisfied that at the material time, these psychotic symptoms (namely those delusions and hallucinations) have substantially contributed to his actions by impairing his judgment, causing gross disinhibition, and reducing his ability to appreciate the wrongfulness of his actions. I am furthermore satisfied that but for the active symptoms of mental illness, the offence would almost certainly not have occurred.’
13I will not go into more detail about the report, suffice to say that it provides strong support for the submission on your behalf that Verdins principles 1, 3, 4, 5 and 6 apply in this case to reduce your moral culpability substantially and in reduction of sentence in that you will do your time much harder because of the mental illness. It renders you vulnerable in prison and there is a substantial risk that your condition will deteriorate during your further period of incarceration.
14It is clear from the report that you may well have had a mental health defence. You have chosen not to argue that before the court, and I have to treat you as though you were conscious of your actions and that your actions were attended by the necessary intent. Your counsel has accepted that the offending is serious and ordinarily of course would require a substantial term of imprisonment.
15You have really no relevant criminal history. You have pleaded guilty during the COVID pandemic and are entitled to a substantial reduction in sentence, not just for your pleas of guilty but because they have assisted the course of justice in that they have saved the court time and the cost to the community of a trial and you have not sought to add to the backlog of cases that built up during the COVID pandemic.
16I am satisfied in those circumstances that I can impose a sentence which I indicated during the sentence indication hearing and, subject to your consent to the Community Correction Order which I have no doubt has been explained to you, I can proceed to sentence in accordance with those indications. This type of offending requires the court to denounce the conduct appropriately, to pay proper regard to the principles of general deterrence, of just punishment and of protection of the community. It seems to me that protection of the community can best be achieved by ensuring, as far as possible, that you are provided with the best rehabilitative circumstances that can be offered to you under a Community Correction Order.
17Pursuant to that I obtained a Community Correction assessment outcome report which has found you suitable for a Community Correction Order, the recommendation being for you to be the subject of treatment and rehabilitation for your mental health, subject to supervision and subject to judicial monitoring.
18I also received a report from Forensicare which supports an order in those terms, including the opinion of the registered nurse who prepared the Forensicare report that your current mental state would not impede your ability to engage in a Community Correction Order, or in any recommended associated conditions. It was indicated that you do not currently require emergency mental health follow-up, although it is clear that you will continue to need treatment and proper medication for your condition.
19In those circumstances, George Tapatas, on Charge 1 you are convicted and sentenced to imprisonment for 14 months.
20On Charge 2 you are convicted and sentenced to imprisonment for one month.
21On Charge 3 you are convicted and sentenced to imprisonment of 10 months.
22On the related summary charge of using a prohibited weapon, you are convicted and sentenced to imprisonment for 5 months.
23I order that one month of the sentence on Charge 3 be served cumulatively upon the sentence of 14 months on Charge 1, making a total effective sentence of imprisonment for 15 months.
24I declare 393 days’ pre-sentence detention as time to be reckoned as served on the sentence that I have imposed.
25In addition, I order that, subject to your consent, you be the subject of a Community Correction Order for a period of two years.
26That will require you to report to the Melbourne Justice Service Centre, 50 Franklin Street, Melbourne, within two clear working days after your sentence of imprisonment is completed. You will be required to obey a number of core conditions, the principal one of which is that you do not commit any offence punishable by imprisonment during the period during which the order is in force.
27ASSOCIATE: Do you want me to print it now?
28HIS HONOUR: Yes, if you wouldn't mind. Just pause a moment whilst the draft order is printed out. Mr Thomas, I take it you've discussed all this with your client?
29MR THOMAS: Yes.
30HIS HONOUR: Yes.
31I now explain to you that the mandatory terms of the order are that you must not commit an offence for which you could be imprisoned during the time that the order is in force. If you do commit an offence punishable by imprisonment during that period of time, you will be brought back to court, probably before me, and you risk being sentenced to a further term of imprisonment as to the original offending. And you are also subject to the risk of being imprisoned for up to three months just for breaching the order.
32You must comply with any obligation or requirements prescribed by the sentencing regulations, such as not turning up drug-affected or drunk to an appointment with Community Corrections. You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate. You must report to the Community Corrections Centre that I have indicated to you within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days if you are changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate. And you must obey all lawful instructions from and directions of the Secretary or his or her delegate.
33I understand that you wish to return to New South Wales and that is something that you are going to have to follow up and work through with Community Corrections. I have no doubt that you have received already and will get further advice on how that might be achieved. But it is not something that I have any control over at this moment.
34In addition, the following conditions will apply:
- that you be the subject of treatment and rehabilitation for mental health during the period of the order, which will require you being prepared to submit to investigation, treatment (which could include inpatient treatment) in accordance with the directions of those who are administering that aspect of the order;
- that you be subject to supervision by the Department of Corrections during the period of the order; and
- I impose a condition of judicial monitoring - the proposed date for the judicial monitoring is 5 December 2023 at 9.30 am, and that can be achieved by video link.
35MR THOMAS: Yes.
36HIS HONOUR: I would certainly permit that to occur but obviously you'll have to explain to your client that that's something he will have to make a note of and comply with subject to any variation that might be sought of the order to change the date or the manner in which the monitoring takes place.
37But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years with a non-parole period of two years.
38Are there any other orders that I need make?
39MS RAMACHANDRAN: A forfeiture order Your Honour.
40HIS HONOUR: Yes, I have signed that already
41I need to obtain your client's consent to the Community Correction Order. Mr Tapatas, have you understood the terms of the Community Correction Order that I have explained to you?
42OFFENDER: Yes, Your Honour.
43HIS HONOUR: And have you discussed those with your counsel and understood the explanations that he's given to you?
44OFFENDER: Yes, Your Honour. Thank you very much, I really appreciate it.
45HIS HONOUR: Are you willing to comply with the terms of the order?
46OFFENDER: Yes, Your Honour.
47HIS HONOUR: That is sufficient consent and therefore I make the order as outlined.
48MS RAMACHANDRAN: As the court please.
49HIS HONOUR I think I explained the consequences of breach satisfactorily, yes?
50MR THOMAS: Yes, thank you, Your Honour.
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