Director of Public Prosecutions v Tapim
[2012] VCC 1110
•8 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT SHEPPARTON SITTING IN MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00701
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANUEL TAPIM |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2012 | |
DATE OF SENTENCE: | 8 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Tapim | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1110 | |
REASONS FOR SENTENCE
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Catchwords: Plea- aggravated burglary; threat to kill; resist police.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms W James | DPP |
| For the Accused | Ms A Centrone | Shepparton VLA |
HIS HONOUR:
1 Manuel Christopher Tapim, you have pleaded guilty to one charge of aggravated burglary and one charge of threat to kill. The maximum penalties for these offences are 25 years and ten years respectively.
2 You have also pleaded guilty to the summary offence of resist police, which has a maximum penalty of six months or 25 penalty units.
3 The details of your offending are set out in the prosecution opening, which is Exhibit A and was read to the court. I will therefore only give a short summary, although I have relied on the prosecution opening as it was an agreed summary itself.
4 On 11 September of last year, at about 2 am, you attended a neighbour's house in Cunningham Street, Benalla. You had been living in the Benalla area for some months and knew the people in this house. Apparently you were not welcome on this night, but you entered the house. Police were notified and attended and you were asked to leave. You were verbally aggressive and moved towards a police officer, who told you to back off. When you repeated the movement, the police sprayed you with capsicum spray. Police tried to then assist you in dealing with the spray, which obviously had gone into your eyes, but you told them to "Fuck off" and you ran away. Police allowed you to go at that point. This is the summary of offence of resist police.
5 At around 2.45 am, after the police had left the scene, you returned to the neighbour's house and calling on one of the occupants to "Come out and fight". When the occupant refused, you broke through the back door. Now this is Charge 1, the aggravated burglary.
6 You then pursued the occupant who was Drew Davidson, through the house and threatening to kill him, and to slice up his father if he didn't return. Davidson was clearly scared and ran out the front door. This is Charge 2, threat to kill.
7 You then ran over to your own house and closed the door. Police attended shortly after and you were arrested. Later that morning you were interviewed by the police and you said that you wanted to fight Davidson because he had insulted you, but you could not recall much of the details after that, as you frankly confessed, you were intoxicated and had been taking or smoking ice and marijuana. These are serious offences as are reflected by the maximum penalties that are attached to them, as I stated 25 years and ten years respectively.
8 I do accept that you had been upset, as a result of an incident that occurred earlier in the night, that related to your then partner, and as a consequence of that, you commenced drinking alcohol and taking other drugs and became extremely affected by them.
9 You then engaged with your neighbours and believed that at some stage you had been insulted. On the plea, it was put to me that something offensive was said about your partner, which caused you to become very angry and agitated. Whatever the motivation, your conduct was quite outrageous and unacceptable. Fortunately there was no physical harm done to any person, but your behaviour and threats caused considerable fear to the victim and to others who were in the house or nearby. It has also caused some ongoing emotional problems, which are evidenced in the victim impact statements, which were tendered as Exhibit B and which were read to the court.
10 There are a number of mitigating factors which your counsel has put forward. You have pleaded guilty and I take that into account in your favour. By doing that you have saved the community the time and cost of a trial, and importantly, you have saved witnesses the trauma and ordeal of having to come to court to give evidence.
11 I also take into account that you largely admitted your bad conduct to the police, as best you could recall it at that time, and you have indicated, at an early time, that you would plead guilty to these charges. I accept that this does reflect some remorse for your actions on that night.
12 Your personal history and circumstances are set out in the report of Ms Carla Lechner, psychologist, which is dated 27 July 2012 and was Exhibit 1, and I have taken all the contents of that report into account, particularly the sad details of your upbringing. You are now 22 years of age. Your were born, as I understand it, on the Torres Strait Islands, although you grew up mainly in the Darwin area. Your mother was of Torres Strait Island descent and your father was a man of New Guinea descent, however you have grown up without knowing or never having met your father and it appears to me that your mother has largely abandoned you over the years. Although she has not had much to do with your upbringing.
13 You were raised, according to the material before me, largely by your grandparents and an uncle. Consequently you do not share a close and emotional connection with your mother as most young people enjoy. Your upbringing has been described as being in the setting of a dysfunctional family, where you were exposed to considerable violence and I have no doubt, alcohol abuse in those situations.
14 This, as I follow the material, has compromised your social and emotional development and you have also developed serious alcohol and drug abuse problems, no doubt to deal with the emotional and social impairments that you have suffered.
15 Testing revealed, according to Ms Lechner, that you were in the average to high average range, which indicated that you had a very good capacity for pattern recognition and abstract reasoning. Joined with your vocabulary testing, which obviously was more limited, again which she explained in the report, you were then judged as at least average intelligence.
16 Unhappily you exited school at an early age and have had only intermittent employment of a un-skilled or semi-skilled nature. It is to your credit, as I understood what your counsel said, that you have developed some skill in plastering, which does make you employable within the community.
17 You have admitted to me your prior convictions and there are some 45 on my counting. Such convictions arising from seven court appearances between 2006 and 2011. You were also found guilty of some 15 other offences, but placed on a bond and no conviction was recorded, and I note that a number of those matters were when you were a juvenile and attending in juvenile courts.
18 You have spent time in custody for robbery in 2006 and have a conviction for aggravated burglary in 2011, which obviously is significant for my purposes. And you received for the aggravated burglary and other offences an aggregate sentence of five months, which indicates to me that it was not a particularly serious example of aggravated burglary on that occasion.
19 I am informed, however, that those offence for which you were convicted in February 2011, in fact occurred in March 2008. It is not clear to me why it took so long for those matters to come to court.
20 Ms Lechner in her report at p.5, expressed the following opinion about you. "Taking into account all these factors, Manuel is best described as a moderate risk of violence. He loads heavily on the historical factors in light of his family history, exposure to violence, and his substance abuse problem. His level of insight is still emerging and he has poor impulse inhibition, but his attitude to intervention is not negative. Protective factors are wanting, as Manuel has no real support network, although he has demonstrated a capacity to find employment. Manuel's risk level would be lowered if he was able to curb his substance use significantly and he was able to engage with treatment services upon his release back into the community."
21 In her treatment considerations, the psychologist stated, "Manuel presents with symptoms of polysubstance abuse/dependency problem. In addition he has difficulties with anger management and impulse control. These problems potentiated by alcohol and ice in particular. Manuel requires a multi-discipline approach or disciplinary approach to treatment, that includes drug and alcohol rehabilitation, counselling together with personal supportive counselling that assists him in developing more adaptive coping skill and strategies."
22 Consistent with Ms Lechner's observations that your attitude to intervention is not negative, you have engaged and completed a number of courses whilst in custody, which are shown in Exhibit 2 of which I have taken into account. In particular you have undertaken courses in alcohol and drug abuse, albeit too short in my view, and also a number of anger management courses, which I hope will be to your benefit. This is an important step, and consequently I propose to try to encourage your progress towards rehabilitation.
23 Counsel has indicated that you wish to remain in Melbourne and try to get work and that contact has been made, on your behalf, with a body called Ngwala. This organisation, as I understand it, attempts to assist young aboriginal men in your situation.
24 However, as well as the matters personal to you, to which I have just referred, I am bound under our Sentencing Act to take into account both general and specific deterrence, in a case such as this. I must consider the protection of other members of our community from you and bear in mind the likelihood of you re-offending. The Sentencing Act requires me, on behalf of the community, to denounce the conduct or such conduct as yours on this occasion and then generally impose a just punishment.
25 The seriousness of your offending, particularly in light of your prior history, calls for a term of immediate imprisonment. Your counsel, however, submitted that I should consider setting a minimum term, that would make you eligible for parole immediately, having taken into account your pre-sentence detention. The Crown, very fairly and humanely in my view, did not oppose this submission and I propose to adopt this course.
26 Would you stand up please.
27
The sentence of the court is that you are convicted on all charges. On
Charge 1, the aggravated burglary, you are sentenced to 16 months imprisonment. On Charge 2, the threat to kill, you are sentenced to six months imprisonment. On Count 7, resist police, you are convicted but discharged.
28 I order that you serve a minimum term of 11 months before being eligible for parole. I declare that you have served 332 days pre-sentence detention and I direct that this be entered in the records of the court.
29 Pursuant to s.6AAA of our Act, that is the Sentencing Act, I state that but for your pleas of guilty, I would have sentenced you to a period of 22 months imprisonment, with a minimum of 15 months.
30 I have made an order in relation to you providing a forensic sample, which process is of police or authorities taking a swab from inside your mouth. It is the least invasive of the procedures. But I am bound to inform you, that should you not co-operate with this process, a properly authorised police officer may use force, but I do not expect that to be a problem in this case.
31 You may sit down for the moment.
32 I am sorry, I have overlooked one thing. I order that two months of the sentence on Count 2, be served cumulatively on Count 1, which makes a total effective sentence of 18 months. And as I said before, I order a minimum of 11 months before parole.
33 MS JAMES: As Your Honour pleases.
34 HIS HONOUR: Is that clear? Have I overlooked anything, apart from that?
35 MS CENTRONE: Not that I am aware of.
36 HIS HONOUR: I had altered it, I just have not written it in here, I got distracted. Insofar as is necessary to explain my sentence on Charge 7, I have taken the view that in light of the circumstances, where the activity was aggressive movement towards the police officer, with the result that capsicum spray was deployed and sprayed in his face, that and there was no further incident, he ran away and police let him go, that in light of the other matters, it did not justify a penalty. That is why I have taken that course. Mr Tapim, could you stand up please?
37 Do you understand what I have done?
38 PRISONER: Yes, sir.
39 HIS HONOUR: You have ended up with 18 months, and I have given you a minimum of 11. On my calculation, you having done 332 days in custody already, you are now eligible for consideration for parole. It is a matter for the parole board as to whether they see fit to release you. Hopefully they will. Insofar as this sentence goes to the parole board, I would indicate on it, that in my view it would be helpful if some contact could be made with the body that I mentioned, which was Ngwala, to lend support to the prisoner upon his release and help him with his re-introduction to the community.
40 You heard your counsel say she will write a letter to the parole board, informing them of what has happened and that I hope, including my sentiments about some liaison occurring between Correction or the parole board, and Ngwala, who may be able to lend support to you when you are released. Any other matters counsel with to raise with me.
41 MS JAMES: No, Your Honour.
42 MS CENTRONE: No, sir.
HIS HONOUR: Would you remove the prisoner please. Thank you. Ms Centrone, do you want the report of Ms Lechner forwarded to the parole board?
MS CENTRONE: That would be of assistance, thank you, sir.
MS JAMES: It is up to you, Your Honour.
HIS HONOUR: Thank you. 9.30 tomorrow morning.
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