Director of Public Prosecutions v Tatira

[2021] VCC 1229

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01813

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHNMAKI TATIRA

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2021
DATE OF SENTENCE:	2 September 2021
CASE MAY BE CITED AS:	DPP v Tatira
MEDIUM NEUTRAL CITATION:	[2021] VCC 1229

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              Plea of guilty during the currency of the Covid-19 pandemic - Negligently causing serious injury (1 count) with a bicycle causing catastrophic injuries to the victim – Failing to stop and render assistance (1 count) to the unconscious victim – Unlawful assault (1 count) – mentally ill offender – youthful offender – reduced moral culpability - substance abuse – catastrophic injuries to the victim

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of imprisonment of 21 months and 7 days; 660 days to be deducted administratively from the sentence

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C McConaghy	Office of Public Prosecutions
For the Accused	Mr R Bhattacharya	Victoria Legal Aid

HER HONOUR:

1Johnmaki Tatira, you have pleaded guilty to two charges concerning your conduct on 12 November 2019, that is, one charge of negligently causing serious injury to Mr Kelvin Rees, which carries a maximum penalty of 10 years’ imprisonment, and one charge of failing to stop to render assistance to Mr Kelvin Rees, which carries a maximum penalty of 5 years’ imprisonment or 600 penalty units. You have also pleaded guilty to an unrelated unlawful assault against Mr Robert Atkins, which occurred on 11 November 2019, for which the maximum penalty is 15 penalty units or 3 months’ imprisonment.

2The circumstances of your offending were outlined in the Summary of Prosecution Opening and I sentence you on the basis of the facts set out in that document. The facts may be briefly stated as follows.

Summary charge

3The unlawful assault was committed on 11 November 2019 against Mr Atkins, who was exiting from a store in Pakenham when he saw you walking quickly towards him. He stopped at the entrance before moving to the footpath, which had only one pedestrian on it. As you walked past, you pushed him to the chest so hard that he fell to the ground, causing him to suffer pain to the wrist and shoulder. As you pushed him, you said “that will teach you to get in my way bro”, before walking off.

4Mr Atkins suffered wrist and shoulder soreness as a result of the assault.

5Your behaviour on that day was inexcusable, but I consider that it is not a particularly serious example of this kind of offence. For the same reasons which apply to the indictable offences, and which are set out in detail below, I consider that your moral culpability for this earlier offending is reduced because of the impact of your impaired cognitive function resulting from chronic schizophrenia. I accept the evidence of clinical neuropsychologist Ms Laura Scott that your cognitive deficits result in impulsive behaviours consistent with your pushing Mr Atkins without provocation.[1]

[1]        Report of Ms Laura Scott dated 30 July 2021, 12.

6I will sentence you on this matter after I have dealt with the indictable offences.

Indictable offences

7Charges 1 and 2 concern your conduct on 12 November 2019 (“the offending”), when you were 24 years old, homeless, unemployed, and squatting in a shed in Pakenham. At around 8.15 am, you rode your bicycle diagonally through a shopping centre carpark which had only 7 cars parked in it and no pedestrians on the road. You could see Mr Rees, and there was plenty of room for you to take evasive action, but you failed to avoid him, riding straight into him. The impact caused Mr Rees to fall face down on the ground and to slide some 30 cm along the gravel, unconscious. You lost a shoe and had partially come off your bike. CCTV shows, and a witness driving by at the time confirmed, that you put your shoe back on and rode away, making no effort to check on Mr Rees’ welfare. You then rode your bike some distance, changed your shoes, covered your head, and returned to the shed where you were squatting. The witness ran to the supermarket close to the carpark and asked an employee to call emergency services. That employee gave CPR to Mr Rees on the instructions of ambulance services until the ambulance arrived. He was found to be unconscious and without a pulse. He suffered a cardiac arrest and had to be resuscitated and intubated at the scene. He was also placed into an induced coma and was then taken by Air Ambulance to the Royal Melbourne Hospital, where he was treated for his injuries.

8You were arrested later that day. You told police you had been squatting in the shed for the past 4 weeks and that you had seen Mr Rees cleaning the gutters in the same location previously. You said that Mr Rees had come straight out of a shop and run into you, that you were travelling “real quick” on your bike, that he was in your way, cleaning the gutters, and you had run into him accidentally because you did not want to fall off your bike and could not turn your bike in time. You looked at Mr Rees, who was motionless on the ground, and left the scene after seeing a white van driving in the carpark.

9You have been in custody in relation to this offending since 12 November 2019 and there is pre-sentence detention, not including today, of 660 days.

10Shortly after arriving at the Melbourne Assessment Prison, you assaulted two people in the context of auditory hallucinations. Between March 2020 and January 2021, you were housed at St Paul’s Psychosocial Rehabilitation Unit (“SPPRU”) and then discharged to Ravenhall Correctional Centre because your mental state had improved. However, in March 2021, you assaulted a cellmate after experiencing further auditory hallucinations, and were then transferred to Port Phillip Prison. There, while experiencing further auditory hallucinations, you assaulted a cellmate in his sleep. In April 2021, you assaulted a prison officer in the context of conflict over your inability to get transferred to SPPRU. You were then placed in 23-hour lockdown. It is unclear whether this regime continued from that time until the time of sentence. You continue to receive your antipsychotic medication.

11The prosecution submitted that the aggravating features of the offending included a degree of premeditation (in terms of making the decision to ride there that way)  and the way in which you were riding. The prosecution accepted that the principles of Verdins are enlivened due to your schizophrenia, and that there is reduced moral culpability for your offending, and that general and specific deterrence are to be moderated.  It conceded that one mitigating factor was your early plea of guilty but submitted that your prospects of rehabilitation are guarded and that protection of the community remains a significant factor. The prosecution submitted that the appropriate disposition is the imposition of an immediate term of imprisonment comprising a head sentence and a non-parole period.  

12Your personal circumstances were outlined in the neuropsychological report of Ms Scott dated 30 July 2021 and the forensic psychiatric reports of Dr McInerney, dated 30 April 2021 and 4 August 2021.

13You are a citizen of New Zealand but no longer have any family ties there, except for an aunt whose location is unknown to you. You were born in the Cook Islands and were taken by your parents to New Zealand and then to Australia, when you were 2 years old. You spent some time living with an aunt and uncle. Your mother died when you were 7 years old, and your father remarried and had a number of children with whom you have no contact. You struggled at school. When you were 15 years old, you were thrown out of home by your father and step-mother after accruing a $5,000 phone bill. You left school at that time, with only very basic literacy skills and trouble managing your finances. You started drinking heavily and abusing drugs such as cannabis, methamphetamine and cocaine. You lived with your girlfriend’s family for a year, but since then had been homeless, sometimes couch surfing, living in boarding houses, or squatting. You have only ever worked briefly, once, as a fencer, but otherwise have been on a disability support pension. For the past three years, you have had a financial administrator.

14After being thrown out of home, you began offending by committing burglaries and stealing.

15You first developed schizophrenia at the age of 19 years and had an initial hospital stay of three months followed by five shorter admissions between 2014 and 2017. Your schizophrenic symptoms included aggressive behaviour and auditory hallucinations. You were involved in a number of violent incidents including assaulting a patient with a fry pan, assaulting a stranger in a supermarket, threatening strangers when asking for money, and being aggressive towards other prisoners. After you left prison in July 2019, you intended to follow up with your doctor but he moved to another practice, and so you did not take any antipsychotic medication or receive any medical treatment between July and November 2019. During that period, you were using high daily doses of synthetic cannabis and occasionally using methamphetamine. You drank heavily when you got paid. You told Dr McInerney that for the past six years you experienced auditory hallucinations in the form of male voices, which at times insulted you or told you to hit someone, which you would do. You said that you struggled to manage outside residential mental health settings.

16You reported to Dr McInerney that on the day of this offending you became angry when a girl you were with refused to share her cannabis with you. You went riding on your bike to relieve your stress. You were sober. Although you did not know Mr Rees, you saw him but the road was slippery and you did not think it would be safe to swerve to avoid him.

17You were able to name your illness and describe some symptoms, but indicated that you took your medication when in the supported environment of prison, but did not take it when living in the community where active decision-making was required. You had little insight into your substance abuse and told Dr McInerney that you did not know how you could be expected to cope without taking drugs.

18Dr McInerney diagnosed you with schizophrenia since 2014. She noted that, while your delusional beliefs have responded well to antipsychotic treatment, your long history of “second person commentary, derogatory auditory hallucinations” has not responded fully to treatment.[2] She considered that you have longstanding antisocial personality traits which include low frustration tolerance, impulsivity, decreased empathy for others, difficulty taking responsibility for your actions, changes in executive functioning, and difficulty planning for the future.

[2]        Report of Dr Clare McInerney dated 30 April 2021 [10.6].

19In relation to this offending, Dr McInerney noted that you were not taking your antipsychotic medication, were not highly intoxicated, but that you were upset, had used cannabis in the preceding 24 hours, and may have been withdrawing from methamphetamine. She noted:

The offences appear to have come about in the context of poor ability to manage stress and tolerate even minor frustration, impulsivity, a tendency to use aggression when annoyed, and very poor judgment. While he knew his actions were wrong, his ability to make calm, rational choices appeared impaired. This is likely the combined effect of his antisocial personality disorder, cognitive impairment, and to a lesser extent the effect of a chronic psychotic disorder.[3]

[3]        Ibid [10.7].

20After reading Ms Scott’s neuropsychological report, Dr McInerney agreed that your cognitive impairments were most likely the result of chronic schizophrenia, were present at the time of the offending, and were exacerbated by the absence of antipsychotic medication at the time. She agreed that these cognitive deficits “have likely significantly contributed” to your behaviour at the time of offending.[4]

[4]        Report of Dr Clare McInerney dated 4 August 2021 [3.6].

21Dr McInerney considered that you cope poorly with stress and are likely to find incarceration stressful, either requiring enhanced mental health supports at SPPRU or finding yourself in a punitive regime as was the case at the time of her report. She indicated that any isolation regime may worsen your mental health and result in increased anxiety or agitation.

22She noted that when you are living in the community, you do not take your antipsychotic medication and quickly resume drug taking and your chaotic lifestyle. She recommended that you be put on a community treatment order and receive mental health case management. She also recommended that you receive intensive support to address your substance misuse. 

23Ms Scott assessed you as having a borderline IQ score of 79 with extremely low scores in working memory and immediate auditory attention span. In particular, she found that you presented with severe impairments in planning, organisation and self-monitoring, and in aspects of memory function. You presented with moderate impairments in attention span and other attentional abilities; and with mild impairment in certain other aspects of executive function. She concluded that your psychological profile is consistent with people suffering from schizophrenia, who present with impairments in attentional and executive function as well as weakness in verbal memory, and with the negative symptom of passivity and a tendency to give up on challenging tasks.

24Ms Scott stated that these impairments would have been present at the time of offending and would likely have been exacerbated because you had not been taking your antipsychotic medications for several months.[5] She noted that, since your first episode of psychosis, you have been heavily reliant on formal services to meet your income, housing and health care needs, and that you struggle with basic personal care and hygiene activities, as well as cooking, cleaning, using public transport or managing your money. She stated that your cognitive impairments would not prevent you from understanding the wrongfulness of your actions, but that they reduce your “capacity to stop and think in the moment and to understand the future consequences” of your actions.[6] You are easily overwhelmed and would have a reduced ability to think clearly and make sound decisions “in a fast-paced situation” where you do not have time to stop and process information carefully.[7] Your poor planning and organisational skills reduce your ability to consider the future consequences of your actions, while your mental inflexibility reduces your capacity to understand the perspectives of others.

[5]        Report of Ms Laura Scott dated 30 July 2021, 10.

[6]        Ibid 11.

[7]        Ibid.

25Ms Scott noted:

… Mr Tatira has severely disorganised thinking and very little capacity to plan ahead. His choice to go riding around town while distressed is a good example of disorganised behaviour. His failure to slow down when approaching a curve in the road or to anticipate that there may be obstacles ahead is consistent with his severely impaired ability to sequence the steps in his actions and consider possible future consequences …[8]

[8]        Ibid 12.

26In relation to charge 2, Ms Scott noted that your failure to stop and assist Mr Rees after seeing that you injured him is consistent with your poor mental flexibility and limited capacity to understand how your victims must be feeling at the time.

27Ms Scott noted that you reported very high psychological distress to her and she considered that, if your mental state were to worsen, your cognitive function is also likely to worsen. She recommended that you be regularly monitored in prison and receive treatment for your symptoms. She noted that your impairments could increase the risk of unintentional breaches. She considered that your ongoing use of synthetic cannabis, your unstable housing, and your lack of daily activities appear to be the biggest challenges for you, and that your cognitive and behavioural symptoms of schizophrenia put you at increased risk of future offending. If you are sentenced to a community-based disposition, she recommended that you be ordered to engage with community mental health services, although she noted that you disengaged from such services when you were last released from prison.

Defence Submissions

28The submissions made by your counsel were to the following effect. Ms Scott found that although you were not actively psychotic at the time of offending, you had developed significant cognitive deficiencies as a result of your schizophrenic illness, in particular: a borderline IQ and severe impairments in aspects of executive function including planning, organisation and self-monitoring. Your cognitive impairments led to your disorganised behaviour and impulsive tendencies. These behaviours led directly to your offending in two ways. Firstly, your failure to slow down when approaching a curve or to anticipate obstacles is consistent with your severely impaired ability to sequence the steps in your actions and consider possible future consequences. Secondly, your failure to stop and offer assistance is consistent with  your poor mental flexibility and limited capacity to understand how a person, such as the victim, may be feeling at the time.

29The factors in R v Verdins[9] are enlivened and warrant the following conclusions: you have reduced moral culpability for the offending; due to your impaired mental functioning, general deterrence is to be moderated; given the chronicity of your mental health issues, it is unlikely that special deterrence will have much effect; and your time in custody has been more difficult as a result of your mental illness and related cognitive issues. Although your prospects of rehabilitation are guarded, protection of the public should not be given primacy in the sentencing exercise, particularly given that your offending on this occasion was brought on by poor judgment rather than an intentional act of violence.

[9] [2007] VSCA 62 [20].

30Your early plea warrants a discount both because of its utilitarian benefit, and because of the remorse which inheres in it. In addition you have expressed remorse in a number of ways:  by making full admissions when interviewed to Ms Scott and Dr McInerney; in your instructions to your lawyers; and directly to Mr Rees’ family members during the last hearing in the Magistrates’ Court. You are also entitled to an additional amelioration of sentence due to the timing of your guilty plea during the currency of  the Covid-19 pandemic. Finally, you are entitled to consideration of the particular hardship in prison associated with your cognitive and mental impairments, and because you face the risk of deportation to New Zealand, where you have no family ties, having come to Australia at the age of two. 

31In the light of your cognitive deficits and disorganised life prior to your offending, as well as your disengagement from mental health services after you were released from prison in July 2019, you would be unable to comply with a Community Correction Order.

32Your offending should attract an immediate term of imprisonment, and the unrelated summary offence, if it attracts a term of imprisonment, should be dealt with by way of concurrency.

Sentencing considerations

33I turn first to assessment of the gravity of the offending. I am required to consider your conduct and its impact on the victim.

34It is clear on the evidence that the impact of your conduct on Mr Rees has been catastrophic.

35His injuries at the time included: a small right subdural haemorrhage (bleed on the brain); comminuted, displaced right frontal bone fracture; undisplaced fractures of the cheekbone and the undermost part of the back of the skull; comminuted fractures of the cervical vertebrae at C1 and C2; and a number of displaced rib fractures.

36Mr Rees was admitted into intensive care but suffered a number of complications there, including: sepsis, which required complex antibiotic therapy; anaemia, secondary to bleeding from the lung, which required blood transfusion and surgery; and progression of the spinal cord injury which left him with poor left lower limb power. He was transferred to the ward on 25 November and then discharged to rehabilitation on 19 December.

37According to the forensic medical report of Dr Maaike Moller, dated 13 January 2020, given the seriousness of his injuries and the complications he suffered, he could have died at any stage of his care without intensive and multidisciplinary intervention. Even so, the trauma caused a bleed on the brain and he was deprived of oxygen during the period of his cardiac arrest lasting over 30 minutes, all of which can result in long-term cognitive impairment. His primary injuries to the spinal cord, as well as the effect of the other injuries, together with his suffering sepsis, resulted in physical deconditioning and functional decline, such that he is now dependent in all his activities of daily living, and is likely to remain so. He now lives in care.

38There were Victim Impact Statements from Mr Rees’ wife, Mrs Karen Rees, and from their daughter, Ms Kelly Harrop, made on 18 August 2021. They remain traumatised by what has happened to Mr Rees, by his injuries, the fear of losing him, and by the fact that he can no longer live in his own home, with his wife, daughter and grandson, as he did before. Ms Harrop suffers from depression and anxiety resulting from this trauma and has had to give up work.

39Turning to your conduct, it is clear from the agreed facts that you were riding too fast diagonally across the carpark, saw Mr Rees, who had his back to you, but were unable to control your speed or to stop and, because of the way you were riding, were left with no choice but to collide with him, as you did. This was very negligent conduct on your part. However, I accept the neuropsychological opinion of Ms Scott outlined above and consider that your conduct was causally related to the cognitive deficits you have suffered as a result of your chronic schizophrenic illness. As noted earlier, your conduct in failing to stop and render assistance to Mr Rees is also consistent with the cognitive deficits associated with your chronic schizophrenia.

40Your schizophrenia and its related effect on your cognitive functions enliven all the limbs in R v Verdins. As a result, I find that you have reduced moral culpability for the offending; that general deterrence should be moderated as a sentencing principle; that you are an inappropriate vehicle for specific deterrence; and that your time in custody has been more onerous to some degree because of your mental illness and related cognitive issues.

41I accept the matters put in mitigation on your behalf. In particular, you made your plea at a relatively early stage, which is of benefit in saving the expense, distress and inconvenience of a trial. You have expressed remorse in a number of ways and to a number of people, including Mr Rees’ family. You are entitled to a further discount because you made your plea during the currency of the Covid-19 pandemic.[10] Your time in custody, 660 days, has been onerous for you partly because of your cognitive and behavioural difficulties.

[10]        Worboyes v The Queen [2021] VSCA 169 [39].

42I accept that protection of the community remains a relevant sentencing consideration and that your prospects of rehabilitation remain guarded unless you engage with mental health services and other disability services to secure stable, preferably supported, residential housing and ongoing treatment for your schizophrenia, as well as treatment to assist you in overcoming your addiction to synthetic cannabis. However, you are a relatively young man with serious mental health impairments, and as such, considerable weight must be given to the importance of your rehabilitation, as challenging as that process may prove in practice.   

43I note that the parties were unable to locate any comparable cases for the purpose of outlining recent sentencing practice. Doing the best I can on the specific facts of this case, I propose to sentence you as follows:

44Would you please stand.

45On the summary charge of unlawful assault, you are convicted and sentenced to imprisonment for 7 days. This sentence is to be served cumulatively upon the base sentence.

46On charge 1, negligently cause serious injury, you are convicted and sentenced to 20 months’ imprisonment. This is the base sentence.

47On charge 2, failing to stop and render assistance, you are convicted and sentenced to imprisonment for 1 month. This sentence is to be served cumulatively upon the base sentence and the summary charge of unlawful assault.

48The total effective sentence is one of 21 months and 7 days imprisonment, that is a total of 645 days. I declare that there are 660 days of pre-sentence detention, not including today, to be deducted administratively from this sentence.

49I indicate pursuant to s 6AAA of the Sentencing Act, that, but for your plea of guilty to all three charges, I would have imposed a total effective sentence of 3 years’ imprisonment with a non-parole period of 2 years.

50The Prosecution has applied for a forfeiture order of the bicycle used in relation to charge 1. Your Counsel did not oppose this application, and I make that order.