Director of Public Prosecutions v Tape

[2024] VCC 1192

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23 00126

CR-23 00125

DIRECTOR OF PUBLIC PROSECUTIONS

v

REZA TAPE

ALI RAFFATI

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 August 2024
CASE MAY BE CITED AS:	DPP v Tape & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1192

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW- Sentence

Catchwords:  Kidnapping; Blackmail; Threat to Kill; Possession of a Drug of Dependence.

Legislation Cited:

Cases Cited:Karam v The King [2024] VSCA 164; Worboyes [2021] VSCA 169.

Sentence:Reza Tape sentenced to 2 years and 6 months imprisonment, non-parole period of 1 year; fined and convicted $300.00. Ali Raffati sentenced to 319 days of Imprisonment; Community Corrections Order for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Vasiliou	Office of Public Prosecutions
For Offender Tape	Mr T. Magazis	Theo Magazis & Associates
For Offender Raffati	Mr S. Beale	James Dowsley & Associates

HIS HONOUR: 

1Reza Tape and Ali Raffati, you have pleaded guilty to one charge of kidnapping, one charge of blackmail and one charge of making a threat to kill.  You, Mr Tape, also pleaded guilty to two charges of possession of a drug of dependence.

2Your pleas of guilty came after a sentence indication hearing as far back as 9 November 2023.  There has been a significant delay since that sentence indication hearing.

3On 23 July 2024, I announced sentencing orders which were more lenient than the indication.  At the time of announcing the sentences I stated that my reasons for sentence would follow.  These are those reasons.

4As to the facts and circumstances of these serious crimes, it was on 1 June 2022 that the victim was kidnapped from outside his friend's house in Mernda by you men.  He was bundled into a van hired for the purpose.  A third man, Mehdi Hefzabad, drove the van.  I sentenced him on 14 May 2024 to the lesser charge of false imprisonment.

5You, Reza Tape, were at one point a business partner of the victim but that business arrangement was over two years prior to June 2022.  However, it seems you still bore some grudge about what you claimed the victim had said or was saying about you to others in your community.  You planned to kidnap him and challenge him regarding what you say he was saying about you.  You arranged for your friend, Mr Raffati, to assist you, providing the muscle or enforcement of demands and Mr Hefzabad was to be the driver of the van.

6Once you men had grabbed the victim outside his friend's house you violently forced him into the van.  You, Mr Raffati, held a knife, and you, Mr Tape, had a large stick.  Thereafter the victim was driven in the van through various places before he was transferred into his own car which travelled along with you.  Thereafter he was taken to his own house and within the house he was blackmailed in the sum of $50,000, said to be a debt that he owed to you, Mr Tape.  There was violence and a chilling threat to kill him at this time.  After further driving you went to a nearby jewellers who was a friend of the victim and you men let the victim go after he had paid $15,000.  This was part of the blackmail.

7Ultimately, the victim reported these crimes to the police who arrested you, Mr Tape, on 7 June.  A search of your premises found drugs of dependence.

8The driver was arrested on 7 July and you, Mr Raffati, on 14 July.

9On any measure these were serious, frightening crimes.  The motivation seems trivial.  Mr Tape, your resort to violence and the recruitment of others, as well as the planning, makes your role the central one.  Your counsel did not take issue with this overall assessment.  Consequentially, there is only one sentence that is appropriate for you, that being imprisonment with a head sentence and a non-parole period.

10You, Mr Raffati, were brought into this to provide the muscle, as I have described.  You were aggressive, overwhelming the victim, dragging him to the van.  Thereafter you were a threatening force.  Your counsel, likewise, conceded that the offending was serious, requiring a term – or at that point a term of imprisonment.  However, what was urged was that the imprisonment be no more than the 319 days you have already served on remand.

11The prosecution submitted that the time you had served was not sufficient to meet all sentencing purposes.

12As mentioned, there was the significant gap in time from the sentence indication to the ultimate plea and sentencing orders, within that time material secured and the recent circumstances of each of you cast a mitigatory light such that I was persuaded to impose less severe sentences than indicated.

13I will commence discussions of personal circumstances with you, Mr Tape.

14You will soon be or have just turned 40.  You were born in Iran.  You were educated to the end of secondary school and before gaining a qualification in carpentry and working also in a cement factory.

15You converted to Christianity and thus feared persecution in your home country of Iran.  You then escaped and came to Australia as a refugee in 2012. 

16In 2013, in Australia you met your now wife.  You have three children.  When you were permitted to work you gained employment as a painter.  To your credit, you are hard-working and dedicated to your family. 

17You have had problems with substance abuse from 2015.  That was addressed when you were on CISP bail and significant progress was made.  Again, this is to your credit.

18You have also had significant issues with your mental health which has seen admissions following acute episodes of mental health deterioration.  There are worrying signs of you developing psychosis and there being disturbing levels of paranoia.

19Around the time these mental health issues were becoming most troubling, to late 2022 into January 2023, you were arrested on unrelated matters and remanded.  Unfortunately, your bail was not revoked and this time cannot be directly counted as pre-sentence detention for these crimes.

20Further, there were charges laid in February 2023 which were ultimately withdrawn, that time involving 225 days, or seven months, will be factored into the overall sentencing synthesis.

21Following the sentence indication, or leading up to it, your lawyers engaged the psychologist, Mr Mackinnon.  His report of 27 April 2024 raised serious concerns as to whether you were fit to stand trial or to maintain your plea of guilty.  These concerns were based on your paranoid and delusional ideas, as well as your deep and debilitating depression. 

22As a consequence of these concerning matters, your lawyers engaged the forensic psychiatrist, Dr Owen.  His report of 14 July 2024 was of great assistance.  In his opinion, expressed from paragraphs 98 to 107 of his report, he considered that:

'On balance, it is more likely that Mr Tape is in fact suffering from an independent psychotic illness, probably schizophrenia, most likely in combination with depression.'

23Dr Owen noted your experience of significant trauma in Iran and as a refugee.  He also noted your growing paranoia in a context of drug use and incarceration.  He very helpfully made contact directly with the prison psychiatric staff who confirmed the levels of paranoia and depression that he had noted. 

24Dr Owen was of the view that the prison mental health services were, and would into the future, be able to provide ongoing treatment appropriate to your psychiatric needs.  He noted your addiction to opioids and the absence of appropriate opiate substitution treatment in prison at the outset likely caused your significant distresses.  However, that is now appropriately addressed in prison by the prison health services.

25Plainly, you have significant problems with your mental health that can cause instability and deep distress.  The diagnosis remains uncertain, but you are in prison being treated in a focused way which had been absent in the community.  That said, gaol is and will be, hard for you as you will be most anxious as to whether you will be deported and potentially separated from your wife and children.  Your initial remand was hard as it was your first time in custody and it was during a time of greater restrictions in prison due to the pandemic.

26As was discussed at your plea and in the announcement of your sentence, a key factor in lowering your sentence slightly from what was indicated was to maintain appropriate parity with you and your co-accused, Mr Raffati, whose ultimate sentence upon the orders that I announced, was also less serious and did not involve any further time in custody. 

27However, it is the case that you are a man with fragile mental health and a likely diagnosis of schizophrenia and debilitating depression.  These are no small matters and I have taken them into account notwithstanding that the reports that outlined these matters came to me after the sentence indication.

28I pause to note that in a recent application for leave to appeal to the Court of Appeal, in a judgment of Forrest J, the case being Karam v The King,[1] His Honour made clear that there are important policy reasons why a sentence indication hearing is not to be seen as an opening bid in some sort of ongoing negotiation.  Here, the deterioration in your mental health and the quality of the reports that I received, makes it clear that this new material is genuinely an effort by your lawyers to ensure that the court is fully informed of what is your state of mental health at the time of sentencing. 

[1]Karam v The King [2024] VSCA 164

29The overall approach taken in Karam is warranted here, that is, a slight reduction from the sentence indicated because of the evidenced-based new and genuine material tendered on a plea to assist in the sentencing process. 

30I make the same points with respect to you, Mr Raffati, where new and important material has had the effect of reducing the sentence indicated to one of a non-custodial community corrections order alone.  In a sense there will be a gaol term that will attach to the Category 2 offence of kidnapping but only for the period of time that you have already served on remand.

31I will commence by reference to your personal circumstances.

32You were born in Iran 35 years ago.  You are the youngest of seven children.  Your father and older brother drank alcohol to excess.  It is illegal to do so in Iran.  The family life was chaotic and eventually you took to alcohol yourself.  It has been a life-long problem for you.

33You escaped Iran when you were still young and came to Australia by boat in 2012.  You spent years in various immigration detention centres before gaining permanent residency.  You gained thereafter various labouring jobs before a workplace accident in 2020 meant that your working life came to an end.

34At the time of your sentence indication and before the decision in Karam, I emphasised that a sentence indication, if accepted, sets the upper limit upon the sentence.  In almost all cases where sentence indications are given, it becomes the sentence that is ultimately imposed, but not always. 

35I went on to say specifically in the sentence indication, if, for example, your partner's pregnancy and birth was problematic that may be relevant to what is submitted on a full plea.

36Leading up to the plea, which was spread over two days, your lawyers gathered significant evidence regarding your workplace injury claim, the health of your children and the health of your wife and her mother.  I heard oral evidence as well from your wife and mother-in-law.  During this period, in addition to the complicated birth of your third child, you also remained engaged and benefitting from CISP bail support.  You remain on a wait list for Cochlear implant surgery to deal with your loss of hearing.

37Your second son has been diagnosed with autism spectrum disorder.  He is over 18 months and has not spoken.  He awaits NDIS assessment for support.  Parenting is complex of this child, but so too is it for your elder son who is troubled by separation anxiety when you are not available.  It would be especially difficult for him, and thus for your wife, if you were gaoled and separated from him.

38Your wife has significant spinal injuries and is very limited in her capacity, while at the same time her parental responsibilities, although it is very significant, with three very young children.  She has chronic depression and anxiety and finds leaving the house difficult.  Her parents are ageing. 

39You are the one in the house and in the extended family that all rely on for transport, to do any physical tasks beyond the very light ones.  Your family's financial circumstances are dire, especially since you are unable to work and have had your Workcover payments terminated. 

40Your personal injuries lawyers provided written evidence that you need to be available for upcoming medical reviews and proceedings, otherwise your claims for reinstatement of your payments, and more particularly assessments for permanent disability leading on to a common law claim, will be at an end.  In other words, what would be a solid claim for substantial compensation for the loss of your hearing and capacity to work will itself be lost if you are gaoled, as was indicated. 

41These matters were raised in mitigation in the sentence indication hearing.  They were not as clear as they now are, based on solid evidence from your compensation lawyers.

42This adds to the further new developments, that is, your child's ill-health in the form of autism or likely autism spectrum disorder, and your wife's great level of incapacity.

43The fine details of whether this reaches a level of exceptional circumstances is better understood by reference to the level of anxiety that you would feel for your family if you were in prison.  This is a very weighty matter.  This would have to be seen, along with the deep anxiety that a prison term would likely bring to you, because you would be fearful that you would be deported, leaving your family here in dire circumstances, maybe permanently.

44There are circumstances where a sense of compassion and mercy reaches a level that a sentence that would ordinarily be for years of imprisonment can be justifiably modified so that multiple lives are not permanently impacted. 

45There is much to indicate you will resume a lawful life.  Your lack of relevant prior history is very much in your favour.  The material tendered and the oral evidence establishes you are dedicated to your family and very unlikely to re‑offend.  The need for deterrence to you is not significant.  Your dealing with drug use has been exemplary, as set out in the CISP reports.

46Your plea of guilty is of value, and given its timing, deserving of what was known as the Worboyes[2] augmented benefit.  You did 319 days on remand in difficult circumstances.  You have further days that cannot be declared as pre-sentence detention, but I have added them into the calculus. 

[2]Worboyes [2021] VSCA 169

47As I announced in fixing your sentence for the Category 2 offence of kidnapping, I will impose, as I must, a sentence of imprisonment alone.  The term will be the 319 days served already on remand.  The community corrections order that you have been found suitable for will be imposed for the other offences.

48The issue of parity is, and remains, given what I propose to do with you, Mr Raffati, and remains important for Mr Tape.  Mr Tape was the principal offender.  He has a criminal history.  His personal circumstances are also weighty in mitigation but not to the same levels as the matters raised by Mr Raffati.  However, in lowering Mr Raffati's sentence so that there is no more gaol, I consider a small adjustment is required in my overview and re-consideration of the principles of parity.

49The sentences that were announced were as follows – and Ms Vasiliou please help if I get this wrong:

50Mr Raffati, for Charge 1, kidnapping, you are sentenced to a term of imprisonment of 319 days.

51For Charge 2, blackmail, Charge 3, threat to kill, you are sentenced to a single community corrections order for two years. 

52The program conditions for the CCO is to do 130 hours of unpaid community work.  He is to be assessed and treated for his mental health, for drug issues and be under supervision.  All the hours spent in programs can be counted for the purposes of the unpaid work.

53Mr Raffati has spent 319 days in custody and on remand that can be declared, and thus, this figure having been reckoned, I now declare that the 319 days is part of the sentence that I have just imposed, that is, the 319 days of imprisonment that he served is part of the sentence of imprisonment that I have just imposed, in fact it is every single day of that sentence.

54I will ensure that this declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have served each and every day of the 319 days that I have imposed.

55The terms and conditions of the community corrections order were outlined to Mr Raffati and he signed a document saying he consented to them.

56Pursuant to 6AAA, had he pleaded not guilty I would have imposed three years, eight months, with a non-parole period of two years and four months.

57With respect to you, Mr Tape, for Charge 1, kidnapping, you are sentenced to two years' imprisonment.  For Charge 2, blackmail, 12 months' imprisonment and for Charge 3, threat to kill, four months' imprisonment.

58I order that five months of Charge 2 and one month of Charge 3 be cumulative upon each other and upon the base sentence, Charge 1.

59That gives a total effective sentence of two years and six months and I fix a non-parole period of one year.

60For Charges 4 and 5, the drug of dependence, you were convicted and fined $300

61You have served some time in custody. You have spent 121 days on remand that can be attributable to these offences.  That figure having been reckoned; I now declare that you have served 121 days in custody - that is part of the sentence I have just imposed.

62Had you pleaded not guilty to the offences I would have imposed four years and two months with a non-parole period of three years.

63MS VASILIOU:  Your Honour also would have made an order for disposal - - -

64HIS HONOUR:  I did. I'll sign the orders regarding disposal.  Is there anything further?

65MS VASILIOU:  No, Your Honour. 

66MR MAGAZIS:  No, Your Honour. 

67HIS HONOUR:  Thank you very much for your significant assistance over a protracted period and to Ms Siri as well, of course, Mr Pearson and Ms Farrell.  Thank you very much.

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