Director of Public Prosecutions v Tawaka
[2014] VCC 953
•19 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-0007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEHIRA TEWAKA |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2014 | |
DATE OF SENTENCE: | 19 June 2014 | |
CASE MAY BE CITED AS: | DPP v Tawaka | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 953 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: Causing injury recklessly – theft – aggravated burglary with firearm – make threat to kill – prohibited person possessing a registered firearm – possessing cartridge ammunition without a licence – unlawful assault – pre-sentence detention
Legislation Cited: Sentencing Act 1991 (Vic) – Crimes Act 1958 (Vic)
Sentence: Total effective sentence of 5 years imprisonment with a non-parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Mahady | OPP |
| For the Accused | Mr B Newton | Peter James Randle |
HER HONOUR:
1 Tehira Tawaka, you have pleaded guilty to the following indictable offences: 1 charge of causing injury recklessly (for which the maximum penalty is 5 years’ imprisonment), three charges of theft (for which the maximum penalty is 10 years’ imprisonment); one charge of aggravated burglary involving the use of a firearm (for which the maximum penalty is 25 years’ imprisonment); one charge of make threat to kill (for which the maximum penalty is 10 years’ imprisonment); and one charge of possessing a registered firearm whilst a prohibited person (for which the maximum penalty is 10 years’ imprisonment or 1200 Penalty Units). You consented to the uplifting of two summary charges and consequently pleaded guilty to one charge of possessing cartridge ammunition, for which the maximum penalty is 40 penalty units and one charge of unlawful assault for which the maximum penalty is 3 months’ imprisonment or 15 penalty units.
2 A revised Summary of the Prosecution Opening dated 9 April 2014 was tendered on the plea as Exhibit 1 and I sentence you on the basis of the facts set out in that summary. I note the concession by the prosecution that as negotiations between the parties began prior to the committal, you are to be taken as having pleaded guilty at the earliest opportunity. I understand the indication given by counsel that the summary reflects the agreed position of the parties and to this extent not all of the material within the Victim Impact Statement of Lauren Serong dated 7 January 2014, (which was tendered as Exhibit 2) on the plea is relevant. I indicate that I have ignored those parts of her statement which fall outside matters referred to in the agreed summary. I sought some assistance from the prosecution in relation to comparable cases involving aggravated burglary and threat to kill and Ms Mahady provided me (and counsel for the accused) with a number of recent Court of Appeal decisions, which I have considered. I have footnoted these.[1] Ms Mahady also provided Sentencing Snapshots for the offences of aggravated burglary, making a threat to kill, theft and causing injury recklessly.
[1]Hogarth v R [2012] VSCA 302; R v Gibson [2006] VSCA 258; Saltalamacchia v R [2010] VSCA 83; Johnston v R [2013] VSCA 362; Secombe v R [2014] VSCA 28
3 I heard submissions from the parties on 9 April. The matter was adjourned pending the outcome of further proceedings in the Magistrates’ Court, which were completed on 27 May 2014, and to which I refer below. Prior to the resumption of the plea hearing today, I received further documents which were tendered in court today: a certified extract of the outcome of the Magistrates’ Court matters; a table summarising your work history which was prepared by your counsel; a letter from the Senior Psychologist at Port Phillip Prison dated 30 December 2014 indicating that you have been unable to be enrolled in the Making Choices Program because you are awaiting sentence; and a psychological report by Forensic Psychologist Pamela Matthews dated 25 May 2014. I heard further submissions from counsel today in the light of this additional material.
4 Charges 1 and 2 relate to events which occurred on 9 August 2013 in relation to different victims. In relation to charge 1, causing injury recklessly, you attended twice at the victim’s property and requested to speak with his son. On the first occasion, the victim told you he was not present. On the second occasion, some three hours later, the victim again told you that his son was not present, and asked you to leave. As you were leaving, the victim told his wife to call the police. You turned around and pushed the victim, causing him to fall onto a trailer and to suffer pain in his right leg. He then asked you: “what are you, a rebel are you”. You then punched him once to the face. The force of the punch caused a cut to the victim’s lip and loosened his two front teeth.
5 In relation to charge 2, theft, you attended at the home of someone you have known since 2007. You asked to borrow his car, a black Ford Falcon sedan registration YJW 612, for about half an hour, and he agreed. When you had not returned the car by midnight, the victim phoned you and asked when you would return it. You told him you had hurt your hand and were in hospital. The victim sent you text messages later that night and during the next week but you did not reply. The victim reported the car stolen. On 31 August 2013, the car was located on the street outside 9 Officer Street, Meadow Heights.
6 Charge 4, theft, relates to your conduct on 20 August 2013 when you drove the stolen Ford to the Coles Express in Mickleham, put unleaded petrol to the value of $103.54 into the vehicle and drove away without making any attempt to pay for the petrol.
7 Charge 3, theft, relates to your conduct on 21 August 2013 when you stole a black Holden Ute registration ZFW 972 from a victim at a service station while he went into the shop and left the keys in the ignition. You arrived at the service station by car with an unknown male, got out of the car, got into the driver’s seat of the victim’s car, and drove it away. On 31 August 2013 the car was located in the rear yard of the property at 9 Officer Street, Meadow Heights.
8 Charges 5 (aggravated burglary with firearm), 6 (make threat to kill) and 7 (prohibited person possessing registered firearm) concern the victim, Lauren Serong, with whom you were previously in a de facto relationship and with whom you have a son, born in June 2011.
9 On 29 August 2013, you attended at Ms Serong’s address at 9 Officer Street Meadow Heights at about 5.00am. Ms Serong was present in the house with her two children, aged two and eight. The younger of those children is also your child. You were in possession of a firearm. You forced open the front door causing damage to it and to the frame. You entered the bedroom where the victim was in bed. You were angry, yelling and waving your arms, and you were holding the firearm. You walked through the house. You then returned to the bedroom, continued to abuse the victim, calling her a slut. You stated that if she ever contacted the police you would kill her, get her shot, pop her.
10 Before leaving her address, you hit her to the face with an open hand. This conduct is the subject of the summary charge, charge 9, of unlawful assault.
11 On 31 August 2013, in the company of a co-accused, you drove the stolen Ford to Ms Serong’s house and parked it opposite her address at 9 Officer Street Meadow Heights. You entered the house through the front door at a time when the victim and her two children were in the rear yard with a friend. They hid there and then jumped a rear fence to escape you. Your co-accused then also entered the house. Police found you inside the house lying on the couch and arrested you. Police found your co-accused at the front of the house and arrested him. Police searched a black Nike bag belonging to you and located a firearm, ammunition and large hunting knife. The summary charge, charge 8, of possess cartridge ammunition, relates to the ammunition found on this date.
12 Charge 7, prohibited person possessing a registered firearm, covers the period between 29 and 31 August 2013.
13 In her Victim Impact Statement, Ms Serong stated, relevantly, that as a result of the conduct described in charges 5, 6 and 7 she was emotionally affected, had trouble sleeping or eating, suffered panic attacks and had trouble shopping due to concerns about safety. Her children have been emotionally traumatised. Her son Dante suffers from separation anxiety, difficulty sleeping, fears for his safety and has been acting out. Her son Chase wakes at night scared and fears loud noises. She stated that she worries for the safety of herself and her children.
14 Counsel for the prosecution, Ms Mahady, submitted that an immediate custodial sentence was appropriate. She indicated that although the serious offender provisions apply due to the threat to kill charge, the prosecution did not call for a disproportionate sentence. She submitted that there should be orders for cumulation on the base charges 5, 6 and 7 but gave no details. Up until, but not including the date of the plea, you had served 222 days of pre-sentence detention. You have now served 271 days of presentence detention, not including today.
15 I turn to your personal circumstances. You are now 31 years old and were 30 at the time of the offending. You were born in Melbourne and were the third child of a father of Maori descent and a mother who was from New Zealand but of Irish descent. Your parents separated when you were 15 months old due to domestic violence. You did not see your father for some years. From the age of 4 to 14, you, your siblings and your mother lived with Warren Thompson, whom you call Leroy Thompson, an interstate truck driver, who was good to you all and who was in court at the first plea hearing with your mother to support you, even though the relationship between him and your mother ended some years ago. You were a happy child. Your mother had a stroke when you were 12, and this affected her speech and memory. Your mother ran a milk bar and you lived next door to it. You were close to your older brother, Marina, and did a lot with him until he suffered from drug-induced psychosis. Your sister Melissa has a longstanding problem with heroin.
16 In August 1995, when you were 12, your brother, who was 21 years old and suffering from psychosis, was shot dead by police after a siege at your home. You were hiding in the shop next door at the time, having been sent there by Mr Thompson and saw police come into the shop covered in blood. One of them said something about wanting to get the deceased’s blood off him and suggested that the deceased may have had hepatitis B. One policeman, Mr Ball, sat with you all night to comfort you. You were traumatised by your brother’s death and developed anger towards police. At the age of 13 or so, you started drinking and smoking marijuana and getting into trouble with police. Whenever they intervened in your offending, you would fight them. Mr Ball tried to talk to your mother and to you when you were 15 about your behaviour, but you were uncontrollable. Mr Thompson also tried, without success. Around this time, your mother asked your father to return to the house to stay in the spare room.
17 You were a very good footballer at school, and played VFL for two years from the age of 16. You completed Year 11, but were asked to leave school because of your difficult behaviour. You never used heroin, as both your siblings were addicted to it. You tried ice when you were 20 and found that it was addictive, and that when you use it you only think about yourself. You have blamed others for the bad things that have happened to you. After leaving school you worked manufacturing caravans. I note the letter from your employer dated 10 November 2011, which is Exhibit A, to the effect that you were an excellent employee, hard working and always helpful to other employees, particularly with training. It is clear from the table summarising your work history provided by your counsel that you have been successful in maintaining employment throughout the majority of your adult life.
18 For a few years until you were 28 you ran your own company installing aluminium cladding for caravans. You employed 2 or 3 workers. However, in 2011, when you spent 3 months in jail, you lost a number of contracts. You were using ice, and could not maintain your employees. The business failed. In 2012 and early 2013 you worked casually in manufacturing caravans, but the work dried up about 6 weeks before you offended again.
19 Your personal relationships have been complex. You have two children with your childhood sweetheart, Emily Hare, with whom you have lived on and off for many years. During one period of separation in 2010, you formed a relationship with her best friend, Lauren Serong, and you have a son together, Chase, who was born in June 2011. You separated from Ms Serong and returned to Ms Hare, but your relationship with Ms Serong has caused friction in your relationship with Ms Hare and some of your recent criminal history includes incidents involving Ms Hare and Ms Serong.
20 For example, the last time you were dealt with in the Magistrates’ Court, in November 2011, was in relation to offences committed against Ms Serong in October 2010, when you were charged, among other things, with threat to kill, intentionally cause injury and false imprisonment, after you argued with her, took her forcibly out of a hotel, put her in a car, then took her to another premise where your argument with her continued. You were sentenced to imprisonment for 18 months, with a term of 3 months to be served and the balance of 15 months was suspended for 2 years.
21 Your current offending, against the same victim, occurred while you were serving a suspended sentence imposed by the Magistrates court. Of course, I am not dealing today with any penalty concerning the breach of that suspended sentence, but your counsel acknowledged that the fact that the current offences were committed during the period of suspension is an aggravating feature. On 27 May 2014, your contravention of the suspended sentence was found proven and the sentence of 15 months was wholly restored. A non-parole period of 6 months was fixed. You have been in custody since that time serving that sentence. l must take this all into account when applying the principle of totality to the total effective sentence imposed, and must also impose a new non-parole period.
22 The psychological report of Ms Pamela Matthews dated 25 May 2014 referred to some of the personal circumstances outlined above and notes that you expressed remorse to her in relation to harm caused to all the victims of your offending. She noted that while your cognition has previously been tested and was found to be in normal range there were deficits in immediate memory suggestive of a neuro-developmental central processing disorder and patchy insight which affects judgment.
23 Ms Matthews noted:
Mr Tewaka reports a dysfunctional family history with: multiple losses of male attachment figures being his brother and stepfather; exposure to his older sibling’s substance misuse; and exposure to the traumatic death of his older brother who was shot by police during a psychotic episode. He also appears to have experienced a specific neurodevelopmental learning disorder and subsequent to his brother’s death was insensitively bullied at school, and from his perception pursued by the police officer who shot his brother.
24 Ms Matthews concluded that you suffered from undiagnosed PTSD after your brother was shot and continue to suffer from that condition. She concluded:
….Mr Tewaka’s current offence spree was triggered by another episode of relationship loss in regards to his long term partner Emily and his children, relationship loss being a trigger per se that exacerbates Post trauma symptomatology and in particular for Mr Tewaka reckless self-destructive behaviour, antisocial ideation, and anger as part of this chronic mental state disorder. In the writer’s view, Mr Tewaka’s mental state at the time of his offending was intimately connected to his current offence behaviour, which was exacerbated by his compensatory substance misuse, that at the time was significant and reminiscent of his older brother’s substance misuse.
25 Ms Mathews noted that you have gone without meaningful or appropriate treatment to date and will require clinical psychological or psychiatric treatment for your chronic symptoms over the next two to five years. She noted that you are struggling behaviourally and symptomatically in prison and that you are finding jail more burdensome than a person of normal health. She felt that some medication by way of a mood stabilizer is required.
26 In relation to the circumstances of your offending, Mr Newton noted the following. Firstly, in relation to the assault on Mr Cassar, you acknowledge that there was no justification for your conduct. You lost your temper with him because you wanted to contact his son, against whom you had a grievance for having a sexual relationship with Ms Hare while you were in custody. In relation to the theft of the car from Mr Mostyn, you say you borrowed the car initially intending to return it but that it was taken from you as collateral in relation to the drug debts you had accumulated, and it took you some time to get the car back. Once you got it back, you did not promptly return it to Mr Mostyn. You gave a similar explanation for the theft of the utility, which is the subject of Charge 4 – you needed work in order to repay drug debts, but did not have the work or the money. Fortunately, both vehicles were recovered. You acknowledge the theft of petrol and have agreed to repay the $104.00 claimed in the compensation order.
27 In relation to charges 5, 6 and 7, your counsel provided the following information on your instructions. In late August 2013 you lived with Ms Serong for a few weeks and you argued about resuming your relationship. You say that at the time of the offences you had been invited to stay with her and had been staying with her. In relation to charge 6, you say through your counsel that you were unhappy about what you believed Ms Serong was telling others about you, and went to her place aiming to retrieve your things. You ended up breaking the door to get in, confronting her about what she had been saying, the dispute escalated and you slapped her across the face. You did not recall what you said in relation to the threat to kill. In relation to charge 7, you say that you had a firearm with you because you carried one around to protect yourself because you were worried about your drug debts.
28 Mr Newton relied heavily on your early plea of guilty, which is to be taken to have been made at the earliest opportunity. Mr Newton submitted that in your letter from which he read portions out in court, but which was not tendered, you acknowledge you have been wrong in lashing out at police and that you regret a lot of things you have done and apologise to all the victims of your offending.
29 He noted that the two stolen vehicles had been recovered by police, and that you had agreed to a compensation order in relation to the petrol stolen from Coles Express in the amount of $104. He noted that you had turned 31 in jail last year after being remanded in relation to these charges on 31 August 2013. He informed me that you have been savagely beaten in custody, and had therefore been held in the management unit of the prison until the Friday before the plea hearing, that is, 4 April of this year, where you have been unable to have access to the usual activities available to the general prison population. He also noted that you have been unable to be assessed for certain programs because you are awaiting sentence, as I have noted above in paragraph 3.
30 Mr Newton noted that overall your criminal history is not a serious one in that this is only the second time you have gone to jail, and that many court appearances in the Magistrates court relate to the failure to pay fines etc. You told him that the intentional cause injury charge in 2003 or 2004, related to a disagreement with a neighbour over dog noise when you lost your temper. Similarly, the assault committed in September 2010 related to a dispute with your neighbours. He submitted that while your use of drugs has caused you trouble in your life, this is a contextual matter which is not a factor in mitigation.
31 Mr Newton relied heavily on the report of Ms Matthews for the submission that Verdins’ principles are enlivened and that your moral culpability for your offending is reduced because at the time of your offending you were affected by PTSD and this disorder not only impaired your ability to exercise appropriate judgment, and your ability to make calm and rational choices, but was in her words “intimately connected”, that is, causally connected to your offending. He also submitted that Verdins’ principles 5 and 6 were enlivened. The prosecution did not dispute that these Verdins’ principles were enlivened, nor that your overall sentence and non—parole period should be sensibly moderated as a result.
32 Mr Newton submitted that you should be given an appropriate discount for your plea of guilty and the remorse expressed in your letter, and noted that you have reasonable prospects of rehabilitation given your age, and your strong relationship with your father who could not be present in court on the previous occasion because of illness, but was present today, as well as your desire to maintain contact with your young children. He conceded that an immediate term of imprisonment was appropriate, and taking into account the principle of totality, suggested that a total effective sentence of 5 years with a non-parole period reflective of your age, the fact that this will be your first serious jail term, and the fact that thus far you have served time in more difficult circumstances than other offenders, would be appropriate. He submitted that there should be a reasonable degree of concurrency between the charges. He submitted that this term of imprisonment should be served concurrently with the State sentence currently being served.
33 I turn first to charges 5 and 6 as these are the most serious charges. In relation to aggravated burglary, I consider that your conduct is a serious example of a particularly serious offence whose gravity is demonstrated by the maximum penalty. Angry and aggrieved, armed with a firearm, you broke into your ex-girlfriend’s home at 5 o’clock in the morning, at a time when she and the children, one of whom is your own child, were in bed. The aggravated burglary was completed when you entered the house. But your offending did not end there. You then acted further: you entered the victim’s bedroom and were angry and yelling, waving your arms while holding a gun. You walked through the house carrying the firearm and abusing her, calling her a slut. You returned to her bedroom and threatened to kill her if she ever contacted the police. You hit her to the face with an open hand before leaving. Your threat to kill, charge 6, and the summary offence of unlawful assault, charge 9, were separate offences committed on top of the aggravated burglary. The circumstances in which the threat to kill occurred make it a serious example of a serious offence. The result of this episode relating to charges 5, 6 and 7 was that you frightened Ms Serong greatly and traumatised the children. The aggravating factors are that you committed this offending while serving a suspended sentence for conduct of a lesser but somewhat similar nature involving violence against the same woman. The element of the aggravated burglary which involves possession of the firearm on that day overlaps completely with the possession of the firearm which is the subject of charge 7 and to that extent I am mindful of the need to avoid double punishment. However, I note that charge 7 also covers your possession of the firearm two days later when you again attended at the victim’s home and entered the house while she was hiding in the backyard with her two children. I will return to this later episode when considering the question of cumulation.
34 General deterrence is a significant factor in cases involving family violence and is a dominant sentencing consideration in your case. Of equal importance in your case is the principle of specific deterrence, given that your current offending represents a significant escalation in your criminal behaviour.
35 General and specific deterrence are also important sentencing considerations in relation to the offence of reckless cause injury, the subject of charge 1. Your conduct in attacking an elderly man is to be deplored and denounced.
36 Theft is also a serious offence. In relation to charges 2 and 3, the thefts of the vehicles, I acknowledge that the vehicles were recovered. In relation to charge 4, theft of the petrol, I acknowledge your agreement to pay $104 for the petrol taken. The offending the subject of charges 1 and 2 occurred on the same day, 9 August 2013, but were unrelated and affected different victims. The theft of the vehicle the subject of charge 4 occurred some days later, on 21 August 2013 and involved a further victim. The theft of petrol the subject of charge 3 occurred on 20 August 2013.
37 Being a prohibited person possessing a registered firearm is also a serious offence. In this case, Charge 7 involves conduct between 29 and 31 August 2013. The circumstances of your possession of the firearm on 31 August 2013 are just as serious as those which existed on 29 August 2013 in that you again entered the victim’s house with a firearm, and searched the house for her.
38 There was no explanation given for the escalation in your criminal offending, apart from the matters raised in Ms Matthews’ report to which I will return, and it is difficult in these circumstances to accurately assess the likelihood of your reoffending.
39 I turn to the mitigatory factors. I note that you are only 31 years old, the father of young children with whom you have contact, and that you have a work history which suggests the potential, provided you are not sidetracked by your drug problems, for you to make a living in the community. I note your early plea of guilty, which has avoided the cost of a trial and spared witnesses the inconvenience and ordeal of giving evidence at trial. I note that your plea of guilty indicates remorse but that there is additional evidence of remorse contained in the letter read to the court where you acknowledge your offending and apologise to all the victims of it. In relation to the other charges, and also expressed to Ms Matthews as recorded in her report. I also note your willingness to pay compensation for the theft of petrol and also note that the vehicles stolen were recovered.
40 I accept the conclusions of Ms Matthews, that you suffered an undiagnosed PTSD after your brother was shot, that you continue to suffer from this condition, which has been untreated, and that your PTSD was “intimately connected” to your offending, which was triggered by another relationship loss in relation to Emily and your children. I find that your PTSD reduces your moral culpability for your offending conduct because it affected your ability to exercise appropriate judgment, make calm and rational choices and because it was realistically connected with your offending. I note Ms Matthews’ observation that you appear to be struggling behaviourally and symptomatically in the prison environment and might benefit from a mood stabilizer. I am therefore also satisfied that your suffering PTSD means that a given sentence will weigh more heavily on you than on a person of normal health, and to the extent that there is prospect of a significant adverse effect on your mental health, this factor also mitigates punishment.
41 I note that a review of current sentencing practices for these offences reveals that the average total effective sentence was, for 2010-2011, 3 years and ten months for aggravated burglary; two years for making a threat to kill; one year and one month for causing injury recklessly; and, for 2011-2012, two years and 11 months for theft.
42 I take into account all the matters put to me, including the application of Verdins’ principles and the requirement to moderate both the head sentence and the non-parole period appropriately, as well as the principle of totality, to impose an appropriate sentence which satisfies the punitive and mitigatory objectives of sentencing. I will partly cumulate some individual sentences upon the base sentence, reach the head sentence, and set a non-parole period. I take into account the prosecution’s submission that no disproportionate sentence is sought on charge 6, threat to kill, even though this offence is a serious violent offence.
43 Would you please stand.
44 On Charge 5, aggravated burglary, you are convicted and sentenced to a term of imprisonment of 4 and a half years [54 months]. This is the base sentence.
45 On charge 6, threat to kill, you are convicted and sentenced to a term of imprisonment of 2 years’ imprisonment.
46 On charge 1, causing injury recklessly, you are convicted and sentenced to a term of imprisonment of 3 months.
47 On charge 9, the summary charge of unlawful assault, you are convicted and sentenced to one months’ imprisonment.
48 On charge 7, a prohibited person possessing a registered firearm, you are convicted and sentenced to 8 months’ imprisonment.
49 On charge 2, theft, you are convicted and sentenced to one months’ imprisonment.
50 On charge 3, theft, you are sentenced to one months’ imprisonment.
51 On charge 4, theft, you are sentenced to one months’ imprisonment.
52 On charge 8, the summary charge of possessing cartridge ammunition, you are convicted and fined 3 penalty units, this coming to a total of $433.08.
53 I turn to the question of cumulation. I order that four months of the sentence on charge 6 be served cumulatively upon the base sentence. I order that one month of the sentence on charge 1, be served cumulatively on the base sentence. I order that one month of the sentence on charge 7 be served cumulatively upon the base sentence. I order that the sentences on charges 2, 3 and 4 and summary charge 9 be served concurrently with the base sentence.
54 The total effective sentence is five years. Pursuant to s. 6E of the Sentencing Act I direct that this sentence is to be served concurrently with the State sentence you are currently serving. Pursuant to s 14 of the Sentencing Act I fix a new non-parole period of three years to commence today. I note that you have served 271 days of pre-sentence detention and I direct that this time be reckoned as a period of imprisonment already served, pursuant to s 18 of the Sentencing Act not only in relation to the head sentence, but also in relation to the non-parole period.
55 I indicate pursuant to s 6AAA of the Sentencing Act that but for your plea of guilty I would have imposed a term of imprisonment of 8 years with a non- parole period of 5 years.
56 The prosecution also sought ancillary orders – a retention order, a forfeiture order and a compensation order which are all consented to.
57 I make a retention order pursuant to s.464ZFB(1) of the Crimes Act 1958, because I am satisfied that the making of the order is justified for the following reasons:
· The seriousness of the circumstances of the offending warrant the order;
· The prior convictions of the respondent are such as to warrant the making of the order;
· The order is not opposed;
· And the granting of the order is in the public interest.
58 I order pursuant to s. 464ZFB(1) Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by the respondent on 2 September 2013 be retained for placement on the database.
59 I make the forfeiture order in relation to the items referred to in the schedule.
60 Finally I make the compensation order in relation to the theft of petrol at Coles Express in the sum of $104.00
61 Are there any other matters?
62 MS MAHADY: No, thank you.
63 HER HONOUR: Yes, now in light of Ms Matthews' recommendation that Mr Tawaka receive treatment, but in particular, that he may benefit from receiving some medication whilst in prison, I was proposing to add some custody management notation to that effect with your permission, all right. Yes, so it will be the standard of medical assessment and attention as required, perhaps it may well be that - I think we will just put that in the light of the diagnosed mental illness that he suffers, namely post‑traumatic stress disorder and it may well be that it would be appropriate for a copy of the Matthews report to be provided - - -
64 MR NEWTON: Yes, Your Honour.
65 HER HONOUR: - - -to the prison so that some effort can be made to arrange for counselling and treatment. Do you want a copy of the last few pages so you can look at the maths?
66 MR NEWTON: Yes, thanks.
67 HER HONOUR: Yes, all right. Just bear with us for a moment. So we will just print off a draft order that has the calculation in it so you can have a look at it and then if there is nothing wrong with it - - -
68 MR NEWTON: Your Honour, may I just approach my client.
69 HER HONOUR: Absolutely. So perhaps the notation might simply be, "Has post‑traumatic stress disorder requiring medical attention and treatment." That is flagging the issue.
70 MR NEWTON: As Your Honour pleases.
71 HER HONOUR: Have you had a look at the calculation, Ms Mahady?
72 MS MAHADY: I did it while you were - - -
73 HER HONOUR: Right.
74 MS MAHADY: Yes, it is fine, Your Honour.
75 MR NEWTON: Your Honour, there is no issue with the figures. I just wondered whether or not the order should reflect in respect of the non‑parole period that it be - I am just going to Your Honour's sentencing remarks - that the PSD be calculated in the non‑parole period.
76 HER HONOUR: I think, Mr Newton, I do not think I can change what follows by operation of law. At the end of the day, his non‑parole period will fall to commence at the time he began his sentence in the Magistrates' Court.
77 MS MAHADY: That's right, Your Honour.
78 HER HONOUR: So nothing I can do will change that because that is the effect of him having commenced his sentence there and he is doing it concurrently with the one I have imposed. Yes, and the pre‑sentence detention is just deducted from the overall figure, so as far as I understand that by operation of law, effectively, he is serving his sentence. I do not need to say anything because he has already begun serving a sentence. It runs concurrently with this one and I have already added those words, not only in relation to the head sentence, but also in relation to the non‑parole period, but I cannot change what is a matter of fact.
79 MR NEWTON: No, I was just seeking to confirm that your intention was that he served three years from 31 August before becoming eligible for parole.
80 MS MAHADY: It cannot be from 31 August.
81 HER HONOUR: Look, I cannot change what happens by operation of law. I am not sure that any form of words is going to change what would normally happen. I think it's probably better that I do not.
82 MR NEWTON: Yes.
83 HER HONOUR: Because if it turns out that that is wrong then I will have made an error that will just vitiate the whole sentence of discretion. So if there is an argument about what it means, well then you can take it up with the prosecution, but I doubt whether there will be one down the track. I know that you flag that there have been other problems, but I cannot really - - -
84
MR NEWTON: No, that is all right, Your Honour, I was
just - - -
85 HER HONOUR: Hopefully there will not be and hopefully it will not arise, but I am not sure that that form of words takes care of anything. That is my difficulty and if I am not certain of a form of words I should use then it is better not to use them so you may have different views about when you think that three years will expire, but certainly, the authorities will have a view about it and you will probably be able to come to some joint view.
86 MR NEWTON: Well, Your Honour, I just take it that your intention in respect of the global outcome was that he serve three years from the time that he has been remanded before he becomes eligible for parole.
87 HER HONOUR: No because I can only sentence as of today's date. What follows from that is what follows from that, I think. I am not sure that I can - I cannot backdate my sentence if that is what you are asking me to do.
88 MS MAHADY: It would be doubling your PSD.
89 HER HONOUR: It has got nothing to do with pre‑sentence detention, that is the point. Ultimately that period gets deducted anyway.
90 MS MAHADY: That is right. I think, these are always tricky matters, Your Honour, but logically, I think that if Your Honour backdated it to 31 August then it is almost a doubling of PSD. Does Your Honour follow? Because Your Honour has made an order, 271 days of PSD, that means that those days from the 31st come off automatically.
91 HER HONOUR: That is exactly right.
92 MS MAHADY: If you were then to backdate it again, it would be doubling up.
93 HER HONOUR: Yes. I do not see how I can do it unless - - -
94 MS MAHADY: I have never seen it done.
95 HER HONOUR: - - -you can give me a clear path to doing it and some authority as to how I could it and why I should do it then I think I will best leave things as they are. If there is a problem, you can always come back to me in relation to it.
96 MR NEWTON: As Your Honour pleases.
97 HER HONOUR: All right. Yes, thank you. I mean the sentencing remarks record the intention. If there is some reason that you need to get back to me to make it clear that the pre‑sentence detention gets deducted and takes you back to that date, well then you can, but I think that is clear.
98 MS MAHADY: I agree with Your Honour.
99 HER HONOUR: Yes.
100 MR NEWTON: I am sorry, Your Honour - - -
101 HER HONOUR: No, that is all right, Mr Newton.
102
MR NEWTON: - - -I am just saying it is just an abundance of caution because I am aware of problems in the past
and - - -
103 HER HONOUR: It is all right. If we need to make any correction, I will be happy to amend the orders. I can always do that in chambers. All right.
104 MR NEWTON: As Your Honour pleases.
105 HER HONOUR: Thank you.
106 - - -
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