Director of Public Prosecutions v Te Kanawa

[2018] VCC 1490

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01680

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN TE KANAWA
JAMIE BENNETT

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2018
CASE MAY BE CITED AS:	DPP v Te Kanawa
MEDIUM NEUTRAL CITATION:	[2018] VCC 1490

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Conwell
For Accused Te Kanawa	Ms M. Greener
For Accused Bennett	Ms M. Walker

HIS HONOUR:

1Jamie Bennett, you have pleaded guilty to seven charges on indictment number H111459.  Charge 1 alleges an offence of aggravated burglary, which carries a maximum penalty of 25 years' imprisonment.  Charges 2, 4 and 6 allege separate offences of theft, each of which carries a maximum penalty of ten years' imprisonment.  Charge 3 alleges an offence of theft of a motor vehicle, which carries a penalty of ten years' imprisonment as a maximum.  Charges 5 and 10 allege separate offences of handling stolen goods, each of which carries a maximum penalty of 15 years' imprisonment.

2At the time that you committed these offences, you were 27 years of age.  You are now aged 28.

3Shaun Te Kanawa, you have pleaded guilty to four charges on indictment H111459.  Charge 7 alleges an offence of theft of a motor vehicle, which carries a maximum penalty of ten years' imprisonment.  Charge 8 and 10 allege separate offences of handling stolen goods, each of which carries a maximum penalty of 15 years' imprisonment.  And Charge 9 alleges an offence of theft, which carries a maximum penalty of ten years' imprisonment.  You have also pleaded guilty to a related summary offence of failing to stop a vehicle upon police request, which carries a maximum penalty for a first offence of ten penalty units, or for a subsequent offence, of 20 penalty units or four months' imprisonment.

4At the time that you committed these offences, you were 26 years of age.  You are now aged 27.

5The circumstances in which you both came to commit these offences are set out in the detailed prosecution opening, dated 10 August 2018, a copy of which was tendered as Exhibit A on the plea hearing.  I will not recite the full circumstances of your offending, and it is sufficient for present purposes to provide the following outline.

6The victim in this matter is John Oriander.  At the time of the offending he was 71 years of age and lived alone at an address in Box Hill.  At approximately 2:00am in the early morning of 17 March 2017, Mr Oriander was asleep in bed before awaking suddenly to a sound coming from inside his house.

7He got out of bed to investigate and was confronted by an unknown offender in the hallway.  This offender retreated to the kitchen and returned with an eight-inch kitchen knife.  He then pointed the knife at Mr Oriander and forced him back into the bedroom, where he was directed to sit in the corner.  Demands were made for money and property, though he replied that he did not have any.

8While this was happening, you, Bennett, were moving throughout the house, ransacking every room for items of value – this constitutes Charge 1, aggravated burglary, person present, Bennett only.

9Whilst in the bedroom, the unknown offender also placed a number of items in a bag, including a camera, a phone, a wristwatch, and a Galaxy Samsung tablet.  This constitutes Charge 2, Theft, Bennett only.

10The unknown offender then demanded Mr Oriander's car keys.  He responded that they were on a hook in the passageway.  The offender then left the room to retrieve the keys before returning to the bedroom, where he tied Mr Oriander's hands and feet together.  You, Bennett, and the unknown offender, then fled in Mr Oriander's vehicle. This constitutes Charge 3, theft of motor vehicle, Bennet only.

11Mr Oriander eventually untied himself and went to his neighbour's house to inform her that he had been robbed.  She immediately called the police, who arrived a short time later.  He noticed later that other items were missing, including a wallet, a card clip, an American Express card, another digital camera, and five or six watches. This constitutes Charge 2, continuation of theft, Bennett only.

12Later on in the evening at about 6.30pm, an off duty police officer was walking his dog along Prior Road, Malvern East.  He noticed both of you acting suspiciously in that vicinity and then saw you leave in the stolen vehicle.  He reported this to police and provided the number plate. This constitutes Charge 7, theft of motor vehicle, Te Kanawa only.

13The plates on that vehicle had been reported stolen earlier that day from an address which is located a short distance from the home of your mother, Bennett. That constitutes Charge 10, handle stolen goods.

14CCTV footage of Prior Road, Malvern was later obtained which depicts you both in a stolen vehicle, bearing stolen number plates.

15Later that evening, a gentleman returned home and noticed rubbish on the side of the road where he had earlier seen you both standing.  He collected the rubbish and provided it to the police.  It was material belonging to Mr Oriander, including one of his business cards.

16At approximately 6.49 pm that same day, you, Bennett, attended the BP service station on Warragul Road, East Malvern in the stolen vehicle bearing the same stolen number plates.  You were captured on CCTV footage filling the car with petrol and leaving without paying for both the petrol and four cans of energy drink. That constitutes theft, Bennett only.

17The next day, on 18 March 2017, another man who resides in Eumemmering, noticed property belonging to the victim on his nature strip.  He collected the items and handed them into police.

18A few days later, on 21 March 2017, police observed you, Te Kanawa, driving the stolen vehicle in Eumemmering.  By this time, the vehicle bore yet another set of stolen number plates. That is Charge 8, handle stolen goods, Te Kanawa only.

19Police signalled for you to stop the vehicle, which you ignored.  You evaded police attempts to intercept you.  Summary charge, fail to stop, Te Kanawa.

20About an hour later, the stolen vehicle was spotted at the BP service station on Hall Road, Skye, bearing the same plates.  You filled the car up with petrol and left without paying - Charge 9, theft, Te Kanawa only.

21On 23 March, you, Bennett, were captured on CCTV footage filling up the stolen vehicle with $72 worth of petrol at the Coles Express in Cheltenham Road, Dandenong, also leaving without paying - Charge 6, theft, Bennett only.

22The vehicle was bearing stolen number plates from 21 March - Charge 5, handling stolen goods, Bennett only.

23On 28 March 2017, Mr Oriander's vehicle was found dumped in an undercover car park in Dandenong.  As part of the investigation, police attended at Mr Oriander's home located and processed the rear door flyscreen and a glass bottle of Bundaberg located on the back deck for forensic testing.

24Police identified a fingerprint, yours, Bennett, on the inside of the fly screen of the house.  DNA was also found on the bottle of lemonade, and analysis of the DNA revealed it contained your DNA.  The stolen vehicle was also analysed for fingerprints.  They were found on the vehicle's front grill, bonnet, window and pillar, and identified as belonging to you, Bennett.

25You, Bennett, were arrested on 21 April 2017 and participated in a formal record of interview that same day.  You gave mostly a "no comment" interview concerning the aggravated burglary and other charges.  Regarding Te Kanawa, you said "I don't know him" when questioned about your relationship with him, and, in relation to when shown a photo of the two of you together obtained from your Facebook page:

"He must've been walking past and took a selfie."

26You, Te Kanawa, were arrested on 26 April wearing Mr Oriander's stolen watch, and you also participated in a formal interview during which you stated you and Bennett were friends, you had not been involved in any incident of stealing petrol, and the watch had been given to you by someone whose identity you would rather not say.

27The matters were to proceed to trial to commence on 16 April 2018.  However, they resolved over the course of the day.  Pleas were entered on 17 April 2018.

28A victim impact statement was prepared and tendered to the court by Mr Oriander.  He operates a home business.  Personal items and items of value to the business were taken, including his late wife's jewellery.  Parts were stolen from his car, which took him time to replace.  Damages to his property were costly.  Computer and phone cabling were cut and caused inconvenience and disruption.

29He describes the trauma of discovering people in his home in the middle of the night, and being confronted by the knife, as being an unforgettable experience.  He has difficulty sleeping.  He is anxious and has an indescribable fear which still lingers.  He is 72 and feels unsafe in his own home.  He says his life has been changed immeasurably.

30I take this statement and the impact it describes into account.  Home invasion is a particularly serious form of criminal conduct.  The entry of offenders is a terrifying experience, irrespective of what takes place after entry.  Here, the intent upon entry was to steal, and at the time of entering, you, Bennett, knew that a person was present or you were reckless as to whether or not a person was then present.

31The Parliament, as well as the community, views this offending as very serious and the court must impose appropriate and just sentences of punishment and general deterrence to enable community protection.  This offence undermines the sacrosanct sense of security that people are entitled to feel in their homes.  Such crimes are intolerable.  An important indicator of the objective seriousness of the offence is the 25 year maximum penalty fixed by Parliament.  The gravity of the offending is then to be determined by what actually occurred.

32You, Bennett, were acting in concert with the other offender.  The agreed facts suggests that the knife was seized inside to use to threaten the resident once it became clear to the two that entered, Bennett and the other, that he was inside.  That knife was used to make repeated demands and to intimidate the occupant.  Later, the gentleman who was there was tied up.

33While it was conceded that you did not seize and use the knife yourself, and in that sense, the use of a knife is not an aggravating feature for the offence to which you have pleaded guilty, it was also agreed that I am entitled and bound to consider and take into account the surrounding circumstances relevant to the offence, and in particular, the production of the knife.  Here, the aggravation was the presence of a person on the premises, and I will sentence on that basis.

34The circumstances of what took place inside are the surrounding circumstances relevant to the offence.  In my view, this offending of aggravated burglary is serious.  I accept that the objective seriousness is not of the highest order.  That was submitted.

35However, when one looks at the circumstances, I consider this is a serious example of aggravated burglary, intended to steal at point of entry.  You were in company.  The entry took place in the middle of the night, and you knew there would be someone inside, or you were reckless to that fact.

36I will deal with each of you separately as the offences and their gravity is different as between the two of you.

37Jamie Bennett, you were arrested on 21 April 2017 and you were remanded.  You were committed in December 2017.  Mentions and directions hearings proceeded towards a trial date of April 2018.  Your plea was not an early plea.  Indeed, it was a very late plea.  However, it was to a significantly different indictment, given the trial indictment alleged armed robbery and false imprisonment inter alia.

38I accept that the plea has a utilitarian value relative to the avoidance of a trial and the avoidance of evidence by the victim.  The plea will moderate the sentence by the application of an appropriate discount by law.

39As to remorse, this is a feeling which is difficult to assess.  The last report in time received by the court was by Dr Fiona Best, a forensic psychiatrist.  There is no report of expressed remorse or victim empathy on your part.  The earlier report of June 2017 is similarly devoid of any expression of remorse, probably consistent with your assertion that you have little recollection of committing the offences.  However, I accept that your plea is some evidence of remorse.

40I take your personal circumstances into account.  You have prior convictions which start at age 20, with some driving offences which attracted a suspended sentence.  In 2011, you had breached the order of suspension, and the sentence was restored to be served - some four months.

41The breaching offences were more driving offences, but also drug-related and dishonesty as well as reckless conduct endangering life, robbery, possession of a gun, and burglary and possession of drugs.  Eighteen months with a non-parole period of seven months were imposed.

42In 2013, you received three years and three months with a non-parole period of 16 months for armed robbery and a make a threat to kill.  Soon after that sentence, another sentence of a year was imposed to be concurrent for drug trafficking, handling stolen goods, driving offences, burglary and theft. 

43In late 2013, another eight were added concurrent for attempted burglary, theft and two further burglaries.  In the middle of 2014, you were given a three-month concurrent sentence for recklessly cause injury.  Another month was added in 2015 for dealing with the proceeds of crime.  You were released from custody in October 2016 and remanded in custody in April 2017 for these offences.

44In February 2018, His Honour Judge Ryan of this court sentenced you to five years with a non-parole period of three years for handling stolen goods, theft, assault, reckless cause endangering conduct endangering life, and aggravated burglary.

45His Honour noted you had 76 convictions from seven court appearances between 2010 and 2015, 23 of which were for crimes of dishonesty, including theft, burglary, robbery and armed robbery.  On that occasion, His Honour sentenced you for offences committed on 17 April 2017, about a month after these offences were committed.

46One of the offences involved your entry into a private home where you ransacked the bedroom and stole items.  The person present confronted you.  You punched him.  You then went to the kitchen, got a knife and confronted the victim.  You cut his thumb with it.  He ran away and rang the police.  You were then involved in a dangerous high-speed chase with the police attempting to arrest you.  Your driving was very dangerous whilst evading police.  You stole petrol and a number of police vehicles were damaged or collided with your car.  You were eventually arrested.

47The reports to which His Honour referred were again referred to during your plea before me, including the earliest one of 2011 by Dr Cunningham.  The report of 2013 by Ms Swan outlined your tendency to act impulsively without consequential thinking, that you had difficulty with authority and social conventions.  Your regular use of drugs, she said, impairs your psychosocial functioning

48You appeared, she opined, to meet the formal criteria for anti-social personality disorder.  You have told her you wish to get drug treatment to help you abstain from drugs and start work.  You appeared to her to be motivated to be a good role model for your daughter.  This was a report prepared after the armed robbery and make threat to kill.

49Dr Cunningham, in his 2011 report, assessed you as low to moderate risk of reoffending.  This has not proved to be so.  You appeared remorseful and motivated to engage in a pro-social life with your family.  In the June 2017 report of Dr Best, she opined no evidence of psychiatric illness, that you had a major depressive disorder.  She attributed symptoms of post-traumatic stress disorder to long periods of solitary confinement of some 36 months immediately prior to consultation.

50In her 2018 report, Dr Best wrote of a lack of evidence of depression as you had managed to take a positive outlook on your predicament in custody.  You maintained that the period in solitary reclusion had a profound effect on your mental state, so that you were suffering from post-traumatic stress disorder.  But that, as of January 2018, these symptoms were:

"Likely to wax and wane in response to circumstances and stresses."

51It was said during the plea that because of this, that submissions contained in the outline of submissions on the plea of counsel at paragraph 4, subsection (d), paragraphs 7 and 8, were specifically disavowed.  It was now said that any psychological condition diagnosed provided an understanding of your behaviour only, but was not sufficient basis to moderate the sentence and did not call into play the principles in Verdins.

52This was a proper concession, given in particular the evidence recited in His Honour's sentence, particularly paragraph 30, where it was made clear that between 2011 and 2016, some five-and-a-half years, you were imprisoned and at that period two-and-a-half years was spent in "management" with conditions applied to you which varied, some more onerous and restrictive than others, put in place because of your own misconduct or because subject to reprisal and danger due to your behaviour.

53As His Honour points out, you engaged and enjoyed six months of freedom.  Irrespective of the reasons, I do take into account the harsh and punishing nature of solitary confinement during that period.  Whether in response to bad conduct or some other purported reason, isolation, lockdowns, and only a brief period of air in the yard - this type of reclusion often leads to anxiety and mental health concerns, and I will take that into account.

54You were born in Melbourne, at and age three, your parents separated.  You had little contact with your father thereafter.  Between the ages of three and 12, you lived with your mother and stepfather, who was violent and abusive towards you.  He was a drug user with mental health issues who would beat your mother and yourself.  Your mother also used drugs and suffered with depression.  You were exposed to drugs and violence and that started early on.

55Your education ended at Year 9 or 10, at which point, aged 16, you commenced a mechanic's apprenticeship.  The employment which followed was sporadic and transitory.  At age 18, you worked at New Wave Glassworks, which lasted for a couple of years.  You have not worked since an accident with a glass window when you were helping your mother move home.

56You began use of alcohol, cannabis and ice at age 14 or 15.  You have used other drugs like heroin and LSD sporadically, as well as benzodiazepines, upon which you became dependent.  It was evident in court that you are still taking anti-depression or sedative drugs as prescribed to you.

57When you were aged about 19, your partner fell pregnant.  After this, your life went out of control and deteriorated to the extent that your relationship ended and you were put in gaol.  The breakup caused you depression and distress.  You recommenced drug use when you were released, and have had no contact with your daughter since.

58Your past periods of imprisonment are relevant in the proper evaluation of the principle of totality in this case, and I do not mention any of those matters because you are to be punished for them again.  After such long periods, that is the countervailing factors of institutionalisation, but I must concur with His Honour's view that your prospects for rehabilitation are very poor until you decide to rid yourself of drug use.

59During your incarceration, you were diagnosed with Type 1 diabetes, and are insulin-dependent.  This too may render an incarceration regime somewhat more challenging than normal.  I take that into account.  However, as reported by Dr Best, you have access to good diabetic education in order to manage the illness which you appear to have managed proficiently.

60You were also in a single cell, which in the past has given fears arising from your confinement, and shows that your imprisonment can be managed by you relatively well.

61It was submitted primarily that the sentence should take into account the principle of totality and not be a crushing sentence.  Family support, a new partner, will be some protective factors for your rehabilitative prospects, but it is yet too soon to tell whether these bleak current prospects can transform into any amount of reclamation for the future.

62Shaun Te Kanawa, you have pleaded guilty to four charges, and it should be noted aggravated burglary was not one of them.  Your offences are essentially dishonesty offences of theft, handling stolen goods, theft of a motor vehicle.  You also pleaded to failing to stop a vehicle upon police request.  Although similar to some extent to the offences to which Bennett pleaded guilty, the distinction is significant to differentiate between the two of you as far as parity arguments are concerned - except, perhaps, as to the counts that are common as between the two of you.

63Your offences were committed between 17 and 21 March 2017.  You were arrested on 26 April and remanded.  You were committed in August 2017.  A trial date was fixed.

64You pleaded, just prior to the commencement of the trial, to a plea indictment.  The same comments can be made in your case as I have made in Bennett's case as to your plea.  It has a utilitarian value, and it will attract a discount upon your sentence by operation of law.  You pleaded to a much-reduced indictment, especially in terms of gravity of offence, and I strictly deal with you on the basis of the charges which are before me and to which you pleaded guilty.

65Dishonesty offences such as theft of number plates, petrol and a car, need no complex commentary.  They carry ten-year maximums, and are not only legally and morally unacceptable but they cause loss, inconvenience, disrupt the community's security and quality of life, and offend against fundamental rights of those affected.

66Handling stolen goods adds another layer of moral culpability in that these crimes foster lawlessness, dishonesty and loss of property rights which should be safely enjoyed by the community.  This offence carries 15 years' maximum, as opposed to the ten which theft carries.

67By these maximums, the legislators have indicated the seriousness of these offences and that is an adequate starting point for my considerations.

68I have mentioned the victim impact statement, but there are other victims of your various acts of dishonesty.  Apart from this, the summary offence to which you have pleaded guilty, that of failing to stop on police request, not only shows contempt and disregard for the law in seeking to evade interception by police, potentially causing danger to the police and to the public.

69I take into account your personal history.  You were born in Hamilton in New Zealand and came to Australia when aged four with your parents.  You have a sister who lives in Queensland, and a brother who lives in Melbourne.  Your parents separated when you were sixteen.  Your mother now lives in Queensland, and your father lives in New Zealand.

70After your parents' separation, you started using drugs on a regular basis and left school during Year 11.  You have been addicted to ice and Xanax since age 17.  Since leaving school, you have sporadically had some work interspersed with periods of incarceration.

71You have a significant and relevant prior history which spans over 23 pages.  It starts in late 2012, when you were 22, with driving offences and thefts of motor vehicles, handling stolen goods, burglary, assault and traffickings in drugs of dependence.

72You were sentenced to 12 months' period with a six-month non-parole period and fines. In May 2014, you received 20 months' imprisonment to be served by way of a drug treatment order under s.18Z of the Sentencing Act with medical, vocational, educational, psychiatric and psychological treatments attached from the Drug Court at Dandenong.

73From August 2014 to January 2016, that court revived and added days of imprisonment to the drug treatment order in order to give you continuing opportunities for rehabilitation in the expectation that you were to return for judicial monitoring and live with your brother and work with him.  All of those periods and orders appear to have failed.

74I was properly informed that you were then sentenced, not strictly being a prior, to 18 months' imprisonment on 1 November 2017 with 187 days of pre-sentence detention declared at that time with a current release day of 19 September 2018 - some five days from today.

75You have therefore been in custody since 26 April 2017 for these offences and have no pre-sentence detention to declare in relation to my sentence in this case. 

76The principle of totality is applicable in your case, and the prosecution properly accepted the proposition that this principle should be of significance in the current sentencing disposition by way of properly extending the head sentence and setting a new non-parole period.

77The other relevant and significant issue in your case is that of deportation - or at least, the prospect of deportation.  While serving the period in imprisonment, to be followed by 22 months under a community corrections order in 2016, you were told by Immigration officials that you would be deported.  In fact, when you were released, you did not commence a community corrections order but you were taken into a detention facility for some two weeks and then to Christmas Island for some further eight months.

78Whilst the Immigration tribunal released you to undertake the community corrections order, which would have been an opportunity for a beginning of some rehabilitation, you did not.  You went back to drug use and further offending.  You were back in remand for these offences the subject of this plea.

79The November 2017 sentence was also for burglary, dangerous driving, and failing to stop a vehicle when requested, possession of drugs, and a weapon.  Immigration officials again approached you and informed you that you would be deported.  You are apparently resigned to not being able at this time to challenge this future deportation, and you have accepted this outcome.

80I accept that I should take this prospect into consideration according to authority.  However, whatever value is given to this consideration for this outcome and the effect upon you should be tempered and qualified by the fact that as I was told, your father is awaiting your return and a job is available to you upon your return to New Zealand, if you wish to take it up.

81I accept deportation would mean leaving part of your family behind, and that is always significant.  The loss of the opportunity to live out your time in Australia is also of some weight.  All of this, of course, is predicated on the likelihood that your deportation will proceed, without seeking to second-guess or speculate on the course which the matter will take with the Immigration authorities.  I will take this matter into account.

82The Crown properly conceded also that the current sentence in view of totality should be significantly concurrent.  I accept this was a proper concession.

83I am just wondering if, Madam Prosecutor, if you know whether the November 2017 sentence had a non-parole period attached to it?

84MS CONWELL:  Your Honour, I will check that for you.

85HIS HONOUR:  Yes, thank you.  While that is being done, if you could stand, Mr Te Kanawa, please?

86On Charge 7, you are convicted and sentenced to nine months' imprisonment, the base sentence.

87On Charge 8 and on Charge 10, you are convicted and sentenced to six months' imprisonment on each.

88On Charge 9, you are convicted and sentenced to three months' imprisonment.

89On the related summary charge, being a subsequent offence, you are convicted and sentenced to one month imprisonment.

90I order one month of Charge 8, 10, and the summary offence, to be served cumulative on Charge 7, making a total effective sentence of 12 months' imprisonment.

91I order that four months of this sentence will be cumulative with the head sentence currently being undertaken, making the head sentence 22 months.

92I fix a new non-parole period of fifteen months from 1 November 2017 with the 187 days already having been declared as pre-sentence detention.

93That means that for these dishonesty offences, before any matter pertaining to deportation, you are to be further detained, in my calculation, for approximately an extra three months.

94But for your plea, I would have sentenced you to 18 months' imprisonment.  Take a seat.

95Jamie Bennett, would you please stand, please?

96On Charge 1 of aggravated burglary, you are convicted and sentenced to four years' imprisonment.  That is the base sentence.

97On Charge 2, you are convicted and sentenced to nine months' imprisonment.

98On Charges 4 and 6, you are convicted to three months' imprisonment on each.  Both of those are to be concurrent to each other and upon the other sentences.

99On Charge 3, you are convicted and sentenced to nine months' imprisonment.

100On Charges 5 and 10, you are convicted and sentenced to six months' imprisonment on each.

101I order that two months on each of Charge 2 and 3, and one month on each of Charge 5 and 10, be cumulative on the base sentence for Charge 1, making a total effective sentence of four years and four months.

102I order than two years of this sentence be cumulative of the head sentence already being undertaken currently, making a new total effective sentence of seven years and five months.

103I fix a new non-parole period of four years and four months.

104But for your plea, I would have sentenced you to a total effective sentence of five years and five months.

105Madam Prosecutor, it really is not of any importance.  In any event, I think that I have made my sentence in terms of a new total effective sentence, a head sentence, and non-parole period clear enough.  Were there ancillary orders that you know of that needed to be made?

106MS CONWELL:  Your Honour, there is a disposal order.  I understand it has been e-lodged.  However, I have copies if you need.

107HIS HONOUR:  Yes.  I have signed those orders.  Thank you.  Yes, they can be removed.  Ms Walker and Ms Greener, are the dispositions in relation to the sentences clear?

108MS WALKER:  Yes, Your Honour. 

109MS GREENER:  Yes, Your Honour.  Thank you. 

110HIS HONOUR:  All right. I will stand down until then.

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