Director of Public Prosecutions v Taupau

[2015] VCC 239

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00459

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN TAUPAU

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JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2015
DATE OF SENTENCE:	4 March 2015
CASE MAY BE CITED AS:	DPP v Taupau
MEDIUM NEUTRAL CITATION:	[2015] VCC 239

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. E. Holmes	OPP
For Accused Taupau	Mr B. O'Sullivan	Ann Valos Criminal Law

HIS HONOUR: 

1You, Benjamin Taupau, have pleaded guilty before me to one charge of indecent assault, one charge of stalking, one charge of criminal damage, and failing to comply with reporting conditions.  And they are all the matters set out on the indictment C-1409527.1.

2Further, you have pleaded guilty, pursuant to the relevant provisions of the County Court Criminal Procedure Practice Note and the relevant Act, to one charge of wilfully and obscenely exposing the genital parts of your body in a public place, namely the Altona railway station, and another charge on the same date and in the same place, of behaving in an indecent manner in a public place.  Although the particulars with respect to those two offences are of course different - one as being the exposure of the genital area, and the second being what is colloquially referred to as, "chroming".

3Now, the facts in respect of those matters - that is, those four matters set out on the indictment, and those two related summary offences, are all comprehensively described in the prosecution opening, which is Exhibit A.  As I say, it is a lengthy document, and I will only briefly summarise the relevant matters.

4With respect to Charge 1, on Thursday the 22 November 2012, when you were present at an overcrowded platform at the Laverton railway station waiting for a train.  At that time, you were aged 31, and it is accepted that you regularly used public transport on a daily basis, and that you inhaled paint fumes as you were walking or on public transport.  On this day at approximately half past eight in the morning, you stood behind a female who was amongst a crowd of commuters near the train doors.  As the train arrived, you placed your hand on the back of her thigh and slid your hand across her buttocks and her lower back, and lightly pushed her into the train, and these matters give rise to Charge 1 on the indictment.

5On the 23 November 2012, you were arrested by police and made some innocent explanation to them about your actions, and you were released from custody pending a summons. 

6Incident 2 occurred on Tuesday 12 February 2013, when at approximately half past five in the early evening, you attended the Altona railway station by yourself.  You were inhaling paint fumes.  You walked toward the middle of the platform, towards a female who had just sat down on a bench.  You stood in front of her, pulled your pants down, lifted your belly with your right hand, and took hold of your penis with your left hand, and exposed yourself to her, and that gives rise to the related summary offence.

7You then walked off, refilled your plastic bag with paint, and began to inhale its contents, and that gives rise to the other related summary offence.

8You were behaving erratically, talking loudly to yourself, and that caused your victim considerable anxiety and apprehension.  She was finally able to enlist the support of a bus driver, who contacted the police.  After five minutes of erratic behaviour, you then turned towards the victim and began approaching her, and that gives rise to Charge 2.  The victim, in fear, jumped the fence and ran away.  Although, as she did, she dropped her phone and hurt her back. 

9On Friday 1 March 2013, you were arrested and interviewed again, made exculpatory statements to the police concerning the matters, and again you were released pending the summons.

10On 9 May 2013, at approximately four in the evening, you were at the corner of Sydney Road and Albion Street in Brunswick, at a public park.  Whilst there you were inhaling paint fumes.  You then sprayed onto the brick wall of the substation, and those matters give rise to Charge 3.  Again you made exculpatory statements denying your involvement.

11With respect to your failure to comply with reporting obligations, that is, the matters constituting Charge 4 on the indictment, paragraphs 19 to 31 particularise the ways in which you failed to comply with those reporting obligations, and they include that you failed to disclose a new mobile phone number, your new home phone number, your new tattoo, and that you were living with children.  You made various explanations regarding these matters when you were interviewed by the police when you were interviewed by the police on 1 February 2013.

12Subsequently, various appointments were made for you to attend at the Altona North Police Station, but you failed to comply with reporting obligations and you failed to attend for your annual review, and that gives rise to Particular E of Charge 4.  In due course, you made full admissions to police in relation to both charges of failing to comply with Sex Offender Registry obligations. 

13Whilst there are no victim impact statements tendered in the matter, the opening contains material from your victims, which is of relevance, and which of course I have read.  It is clear that your behaviour had a significantly adverse impact upon them, in the way that each of them has described. 

14Of course, as was pointed out by your counsel, there are some mitigating factors to be taken into account.  Of course, you have pleaded guilty, and you are entitled to have that fact taken into account in your favour, and I will do so.

15Clearly the community has, by your pleas, been spared the time and cost of a trial or trials, and witnesses have been spared the ordeal of giving evidence upon your trial or trials, and I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

16Further, I take into account in your favour that you intimated relatively early your intention to plead guilty to these charges, bearing in mind of course the circumstances in which, initially, you were found unfit to be tried but as soon as you were found to be fit to be tried, you indicated your pleas.

17You were apprehended in the circumstances which I have described, and made admissions as I have described, and as is reflected in summary of the prosecution opening.  In the circumstances I accept that in your case your plea does indicate true remorse for your actions. 

18I have been told a significant amount about your personal history and your circumstances.  Of course you appeared before me in the Shepparton circuit on 3 February by means of a video connection, and I was told that, having found you unfit to plead to these charges, as I have just said, you had subsequently become fit to plead, and a plea date was set for Friday 13 February.  On that day a new indictment was filed and you pleaded guilty to the four charges on the indictment, and in addition there were two related charges, and I have described all of them, and reflected what the salient facts were as set out in the opening. 

19In addition there were further seven matters described as unrelated matters, in respect of which there were various summaries handed to the court.  On that day, two matters were withdrawn, and that left five unrelated summary charges, and you pleaded guilty to each of them.

20And as to those unrelated summary offences, the five of them, Nos.5 and 7, as I say, were both struck out, and that left you therefore pleading guilty to unrelated summary offence Charge 1 at Laverton, failing to comply with a bail condition on 16 February 2014; Unrelated Summary Charge No.2 at Laverton, on 22 February 2014, failing to comply with a bail condition - you pleaded guilty to that matter.  You then also pleaded guilty to Unrelated Summary Charge No.3 on 23 February 2014, failing to comply with a bail condition.  And then the next unrelated summary charge, Charge 4, occurred at Brunswick on 22 July 2014, a charge of exposing your genitals, and you pleaded guilty to that matter.  And finally, Unrelated Summary Charge 6, which again occurred in Brunswick on 22 July 2014, when again you were charged with indecent manner, and you pleaded guilty to that charge as well.

21There have been many reports which have been filed in the court, and which of course are relevant to the matter, and that includes the Forensicare report, Exhibit B, dated 29 August 2014; the next Forensicare report of 3 July 2014; and the two reports of Dr Walton, dated 29 April 2014, and 15 January 2015, each one of which is of course very relevant and which I have taken into account.

22I think it appropriate to refer to the report of Dr Lester Walton, dated 15 January 2015 - that is Exhibit E - in which Dr Walton notes that he provided a report on 29 April 2014, when you were found unfit to be tried.  You were then reassessed in relation to your fitness, and a possible mental state defence, on 14 January 2015, in Thomas Embling Hospital, and as a consequence, Dr Walton provided the further report.

23After reciting the history, personal history, and mental status evaluation, Dr Walton set out his opinion that he confirmed the diagnosis of chronic paranoid schizophrenia, although the illness was then, and is now, in substantial remission.  It was his opinion you are fit to be tried.  He had considered the question of whether or not you may have a defence of mental impairment, and was of the opinion that you do not.  He did add, however, and I quote:

"It is well recognised that persons suffering from chronic schizophrenia commonly exhibit poor social judgment, and I do see that as relevant to the offending.  It would appear that Mr Taupau's current treatment regimen is thoroughly affective, and I have no additional suggestions to make in that regard.  From a clinical perspective, he could now be managed in the community, in a community setting, quite adequately.   Specifically in relation to the ultimate disposition, again I refer to my original report, and I am of the view that Verdins considerations do apply."

24As to your personal history, I think it appropriate to refer to his report, where he outlines that you are 31 years of age, you were born in Western Samoa, and after migrating to New Zealand for a few years, moved to Australia with your family when you were around nine or ten.  You were educated to year ten and undertook a variety of factory labouring, assembly, fibreglass and spray-painting work, as well as security work.  You say when you were young you were usually employed, but apart from some casual tree-lopping with your uncle, you had not worked in recent years. 

25You have been involved in several relationships and you have three sons by three different mothers, ranging in age from 13 to seven, but you have no contact with them.  You were married in 2000 but that relationship seems to have been quite intermittent, and finally failed around four years ago.

26You are the third of six siblings in a family of origin, which include an older half-sister by your father, three sisters and a brother, and your parents are aged in their mid-50s.  There is a family history of mental disturbance in that your brother has been diagnosed with schizophrenia and epilepsy; your younger sister has also attracted some form of psychiatric diagnosis, but you were unaware of the details.  You enjoy sound physical health.

27In the last five years you had been troubled by quite intense anxiety, paranoia, and voices.  You are now established on the long-acting, injectable antipsychotic medication Risperdal Consta.  You drank alcohol as a teenager and as a young adult there were frequent periods of intoxication, but in recent years your alcohol use has been minimal, and you deny any history of drug abuse.

28With respect to your prior convictions, there is a relevant forensic history set out in one of the reports; the Forensicare reports of 29 August 2014.  He said you had been imprisoned five times and that your Victorian Police criminal record documents charges dating back to 1998 at the Broadmeadows Children's Court when you were 17.  You have been registered as a sex offender in 2008/9 for eight years, and in 2012 after review your reporting requirement was extended to life.

29You have been in no further trouble since this matter.  And I am on balance satisfied that your chance of rehabilitation depends upon your continued use of the drug, which is hopefully going to continue to have the effect that it currently has, and the prognosis seems very positive according to Dr Walton.

30Of course as well as those matters personal to you, to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, and clearly general deterrence is always of great significance in cases such as this, involving as it does young women in public places being subject to behaviour such as these.  Clearly, specific deterrence is also of importance, given the prior convictions. 

31Protection of members of the community from you is also a relevant matter, and I must bear in mind the likelihood of your reoffending, which I find to be hopefully significantly moderated in view of the treatment of your illness with the drug referred to by Dr Walton.  Clearly there has been some delay in the matters coming before me, and that is a matter which I take into account in your favour, as directed by the relevant authorities.  And of course at the time you spent a total of - how long in custody was Mr Taupau?

32MR DOYLE:  311 days at that point, Your Honour .

33HIS HONOUR:  Thank you, yes.  As counsel have established, from the chronology of your custody, that you spent a total of 311 days in custody in respect of these matters and no others.  That of course is a matter of great significance.  There was a request for a s.464ZF order and I am satisfied that it is in the interests of justice, having regard to the prior convictions and the seriousness of your offending, that in all circumstances, I do order an intimate forensic sample, namely saliva, be taken from you, and that sample may be taken by a doctor or a nurse or other authorised person.  That saliva sample is taken by wiping a swab inside your mouth, and although you have consented, if you change your mind, I must inform you, the police may use reasonable force to enable that procedure to take place.

34As I have noted there is no point in the circumstances of making any further orders under the Sex Offenders Registration Act because you are registered for life with respect to that matter.

35Now, without doubt serious offences in the normal circumstances, there is no alternative to prison sentences, so there will be convictions in respect of each charge and each summary offence, and each unrelated summary offence, and the following sentence.

36What I propose to do is sentence - there are four charges on the indictment, so they will be referred to as Charges 1, 2, 3 and 4, respectively.  There are then two related summary offences, and they will be referred to as Related Summary Offence 1 and Related Summary Offence 2.  And then there are five unrelated summary offences, and they will be referred to Unrelated Summary Offence 1, Unrelated Summary Offence 2, Unrelated Summary Offence 3, Unrelated Summary Offence 4, and Unrelated Summary Offence 6, because that will take the numbering of the summary offences from the actual charges.  Now, the actual sentences therefore, are as follows:

37On Charge 1 and on Unrelated Summary Offence No.4, and Unrelated Summary Offence No.6 - so on those three matters - there will be a sentence of three months.

38On Charge 2 and Related Summary Offence No.2, which is the chroming, the riotous behaviour, there will be a sentence of two months.

39On Charge 3, which is the damage charge, there will be a sentence of one week.

40And on Charge 4, that is the stalking, there will be a sentence of one month.

41On Related Summary Offence Charge 1, there will be a sentence of one month.

42And on Unrelated Summary Offence No.1, No.2, and No.3, there will be a sentence of two weeks.

43Now, I direct that the first sentence is the base sentence, so that is the three months imposed on Charge 1, and Unrelated Summary Offence No.4 and No.6 and all of the other sentences will be served cumulatively upon that.  So that means a total effective sentence of seven months and three weeks.

44I need to amend something.  The sentence on Charge 2, and the Related Summary Offence of No.2, should in fact be a sentence of three months.

45All right, so the total effective sentence is of eight months and three weeks.  And that therefore leaves some balance of time between that which was served and that which was not.  As I say, it is noted that for the pre-sentence detention was 311 days, was it?

46MR DOYLE:  Yes Your Honour .

47HIS HONOUR:  All right.  Now finally it was agreed between Counsel that limbs 1, 5 and 6, as expressed in the case of Verdins, have significant applicability to your circumstances.  There is reduced moral culpability as a consequence of your paranoid schizophrenia, which is now being diagnosed in the respect of which you are currently, adequately medicated.

48Had you not pleaded guilty to these matters, the total effective sentence would have been one of 18 months' imprisonment.

49Anything else that needs to be done?

50MR DOYLE:  No, Your Honour .

51HIS HONOUR:  Did you get all those sentences?

52MS HOLMES:  Yes, Your Honour .  Has Your Honour got copies of the s.464?

53HIS HONOUR:  I am not sure, I do not think so, but I will sign will them now.

54Is that the one relevant to somebody who is not going to be in gaol?  There is usually a schedule attached with police stations to which you attend, and that kind of thing.

55MS HOLMES:  There is.  It may not be, Your Honour .  It may be the other version needs to be sent through to Your Honour's associate.

56HIS HONOUR:  I will leave that, you can sort that out with my associate.  I will sign the appropriate one, but we will get onto that before Mr Taupau leaves the court. 

57All right, thank you Mr Taupau, I think that concludes everything.  You will be free to go and that will be explained to you about what the orders are, but we will need to explain the forensic sample needs to be taken.  He will need to attend a police station at some stage for that. 

58MR DOYLE:  Yes, Your Honour. 

59HIS HONOUR:  All right, so the medication is working all right, Mr Taupau?

60OFFENDER:  Yes, it's working good.

61HIS HONOUR:  Excellent.  That's good news.  I hope things go well from now on for you.

62OFFENDER:  Thank you very much, Your Honour .

63HIS HONOUR:  Thank you.  That concludes that matter, and I will stand down while the next matter is prepared.

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