Director of Public Prosecutions v Te- Paerata Smith

[2021] VCC 1231

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02193

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN TE- PAERATA SMITH

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2021
DATE OF SENTENCE:	24 May 2021
CASE MAY BE CITED AS:	DPP v Te- Paerata Smith
MEDIUM NEUTRAL CITATION:	[2021] VCC 1231

REASONS FOR SENTENCE

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Subject:         CRIMINAL LAW

Catchwords:  Recklessly cause injury – excessive self-defence – force disproportionate to threat faced - rugby tackle to ground - unlawful assault – plea of guilty following sentence indication – extra-curial punishment – loss of employment and accommodation – fair prospects of rehabilitation – pre sentence detention -

Legislation Cited: s.18 Crimes Act 1958

Cases Cited:

Sentence: 45 days imprisonment and Community Corrections Order for 12 months with condition and $600 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr B. Newton	Chester Metcalf & Co

1HIS HONOUR: Kevin Te Paerata Smith, you have pleaded guilty to a single on Indictment J10168855.1 that at Newport on 19 January 2019 you recklessly caused injury to Matthew Ramadan. The offence of recklessly causing injury carries a maximum penalty of five years' imprisonment. In addition, you consented to my hearing Summary Charge 1, being the offence of unlawful assault transferred from the Magistrates' Court pursuant to s145 of the Criminal Procedure Act (2009).  You pleaded guilty to that charge, the particulars of which are that at Newport on 19 January 2019 you unlawfully assaulted Darko Jajcevic.  This offence carries a maximum penalty of three months' imprisonment or 15 penalty units. 

2The circumstances of your offending are set out in the prosecution opening on plea, marked Exhibit P1. 

3After finishing work on Saturday 19 January 2019, you attended the Seagulls Hotel in Newport, arriving sometime in the afternoon.  At about 3 pm the two victims, Matthew Ramadan and Darko Jajcevic, were sitting on the concrete pavement outside the hotel.  You did not know either of the men.  At approximately 3.05 pm, Ramadan entered the hotel.  Staff inside the hotel asked him to leave and he did so.  A patron of the hotel observed that Ramadan was heavily intoxicated. 

4At approximately 3.08 pm you came out of the hotel and had a conversation with Jajcevic.  The conversation was not hostile.  While standing in the doorway of the hotel waiting for a friend of yours to arrive, you gestured towards someone or something outside of the hotel.  Your counsel Mr Newton said that you may have said to Mr Ramadan, who was peering into the glass window of the hotel, something along the lines of 'You can't see through that.' 

5Seconds later Ramadan approached you with his left arm extended.  You immediately pushed his left arm out of the way and forcefully pushed him backwards and down to the pavement.  Ramadan's skull hit the pavement and he was rendered unconscious.  Ramadan's fall was unprotected, that is, he made no effort to protect himself as he fell.  You then took a few steps towards Ramadan, stood over him and said something to him whilst also gesturing at him.  These are the facts that relate to the charge on the indictment. 

6Jajcevic approached Ramadan as he lay motionless on the pavement.  You rushed from the hotel entrance towards Jajcevic, pushed his right hand down and then attempted to punch him with your left hand.  You missed, overbalanced and fell to the pavement.  You immediately got back up and attempted to punch Jajcevic again. You then walk back into the hotel.  Those are the facts that relate to the summary charge.  Mr Jajcevic did not suffer any injury.  At approximately 3.09 pm Jajcevic placed the unconscious Ramadan in a sitting position.  Ramadan remained in that position for several minutes. An unknown bystander called an ambulance. 

7Jajcevic then handed Ramadan over to the bystander and went into the hotel with another male.  Ramadan slipped out of the bystander's grip and struck the back of his head on the concrete pavement for a second time.  Inside the hotel you had a further altercation with Jajcevic during which you tackled him to the ground.  You then had an altercation with another male. You left the hotel at approximately 3.18 pm. 

8Paramedics arrived at 3.22 pm and noted that Ramadan was conscious.  You were arrested by police as you were walking home.  You participated in a recorded interview at 9.05 pm, which concluded with you being charged with a number of offences relevant to the above incidents.  Mr Ramadan was conveyed by ambulance to the emergency department at the Royal Melbourne Hospital. He was admitted as an inpatient for management of several suspected injuries and aspiration pneumonia.  On admission his blood alcohol concentration was 0.23 per cent. 

9Two days after the altercation, due to a deteriorating neurological condition, Mr Ramadan was treated surgically with a left anterior frontal craniotomy and evacuation of a subdural hematoma and intracranial hematoma.  He was ultimately discharged home on 5 February 2019.  Dr Rachel Marr, senior forensic medical officer at the Victorian Institute of Forensic Medicine, opined in a report dated 11 April 2019 that:  'The injuries Mr Ramadan sustained would have left him with further cognitive impairment on top of a previous traumatic brain injury.'  Dr Marr's assessment was based on an examination of medical records.  There are no victim impact statements in this matter. 

10I turn now to your personal circumstances.  You were born in October 1970 in Rotorua, New Zealand.  You are now 50 years of age.  At the time of the offending you were 48 years old.  Your parents were born in New Zealand, your father worked for the majority of his life as a mechanic engineer foreman and also as a sheet-metal worker.  Your mother is of Maori descent and undertook home duties as well as part-time work in a laundromat.  You and your twin sister are the eldest of 14 children born to your parents. 

11In your early years, your father worked seven days a week and was often away in Auckland.  You spent most of your early years helping your mother raise your younger siblings.  Your parents separated when you were aged about 13 or 14 years. You and your siblings remained living with your father upon the separation of your parents.  You attended school until the age of 15. You left school to assist financially your family.  You obtained work as a general labourer with a pet food company that also employed your father.  Each week you gave you wage to your father. 

12When you were 16 years, your parents reconciled.  You left your labouring job at about that age and commenced work as an apprentice window installer.  You completed your apprenticeship over four years and became a qualified carpenter.  In your fifth year with the company, you left so that you could travel and visit your aunt and uncle who lived in Dandenong.  You came to Melbourne in 1992 when you were 21 years of age.  You obtained collection work for a recycling company. Your role was that of a truck jockey, which involved retrieving kerbside bins. 

13In September 1994, in the course of your employment, you were struck by a car as you were working.  You suffered several injuries including multiple fractures to your jaw and torn ligaments and cartilage in your left knee, which required surgery to repair. You lost all but six of your teeth.  You were unable to work for six months while you recovered.  You received a workers' compensation payment of $20,000 as a result of the injuries you sustained. 

14In 1995 you returned to work as a truck jockey with a recycling company.  You continued in that role for approximately 10 years.  Between then and 2018 you worked in a variety of jobs involving labouring and forklift-driving roles.  In 2002 you married and with your wife in 2004 you purchased a home in Truganina.  When the marriage ended in 2009, the matrimonial home was sold and you went to live in a caravan park in Laverton.  Between 2010 and 2017, you lived at a number of different locations variously in rental premises, a rooming house and a caravan. 

15At the time of your arrest for the matters before me you were living alone in government housing in Braybrook.  You were then in fulltime employment as a forklift driver with Kellett Transport.  When you were remanded in custody for the matters before me, your lease was cancelled and you lost your house. You also lost your job.  You currently live alone at your former employer's premises.  You are in receipt of Centrelink benefits and act as a live-in caretaker.  You are, I should add, a New Zealand citizen and a permanent resident of Australia. 

16A reference from your former employer, Troy Kellett, was tendered on your behalf.  You are described by Mr Kellett as well-mannered and polite. 

17You have admitted your criminal record.  You incurred your first criminal conviction in 2002 when you were 31 years of age, for the offence of exceeding the prescription concentration of alcohol within a three-hour breath test.  You received a 12-month community-based order with conditions including 100 hours of unpaid community work.  Your licence was cancelled for 18 months.  Approximately three months later you were convicted for the offence of driving whilst disqualified for which you received a one-month sentence of imprisonment that was wholly suspended for a period of 12 months.  You were disqualified from driving for one month. 

18Between the years 2008 and 2015 you appeared in the courts on a further three occasions, mostly in relation to driving offences.  Your offending in November 2015 was the last time prior to the subject offending that you came before the courts, on charges of threat to kill, unlawful assault, fail to answer bail and possess cannabis. You were convicted and sentenced to an aggregate fine of $2,000.  For the offence of driving whilst disqualified you were sentenced to one-month imprisonment wholly suspended for 12 months.  You were also found to have breached a community-based order that was imposed in 2009. 

19Mr Newton on your behalf submitted that you were fearful of Mr Ramadan as he approached you as you were standing in the hotel doorway.  It was your belief that both of Mr Ramadan's hands were clenched as he approached you.  Mr Newton submitted that your impression of Mr Ramadan was that he was much taller than you, heavier and of a younger age.  The incident, Mr Newton submitted, happened quickly, in a matter of seconds, and you only had a limited time in which to respond to what you perceived as Mr Ramadan's aggressive advance towards you. 

20Mr Newton submitted that you should be sentenced on the basis that you were acting in self defence but that your actions were excessive.  Your offending, he said, did not involve weapons and was not committed in company.  As for the offending against Mr Jajcevic, Mr Newton said it occurred in the aftermath of the incident with Mr Ramadan and involved you pushing Mr Jajcevic's hand down and trying to punch him but failing to connect. 

21On arrest you were cooperative with police and you participated fully in the interview.  You made a number of admissions.  Mr Newton relied on your pleas of guilty as being of high utilitarian value, especially in light of the COVID-19 pandemic.  He submitted that the pleas of guilty should be regarded as having been entered at an early time.  With regard to the loss of your home and full-time employment as a result of the six weeks you spent in custody, Mr Newton submitted this amounted to extra-curial punishment. 

22Mr Newton submitted that your prospects of rehabilitation are solid, given your excellent employment history, stable accommodation, limited criminal history, mature age and the absence of breaches of bail conditions and subsequent offending.  Furthermore, he submitted that you are well motivated to stay out of trouble in order to avoid the risk of deportation to New Zealand.  Mr Newton also relied on a psychological report of Pamela Matthews dated 2 May 2021, tendered on your behalf. 

23Ms Matthews stated that you presented with a cognitive profile suggestive of acquired brain injury, signalling the need for further neuro-cognitive testing and scans.  She considered that your deficits in verbal reasoning would have undermined your capacity to reason rapidly on the spot if faced with an unexpected situation.  On the Violence Risk Appraisal Guide 2013 you were assessed to be at an average risk of similar offending.  However, Ms Matthews considered that because age was not factored into the assessment, I should view your risk as average but reducing with every year that passes. 

24Nevertheless, it is a matter of concern to me that you are assessed to be currently at an average risk for similar offending.  Furthermore, it is not clear by how much that risk would reduce with each passing year.  In relation to disposition, Mr Newton argued that I should sentence you to pre-sentence detention of 45 days.  He said that your time in custody was salutary.  In the alternative, Mr Newton submitted I should sentence you to pre-sentence detention along with an adjourned undertaking to be of good behaviour. 

25Mr Albert, who appeared on behalf of the Director of Public Prosecutions, submitted that a combination sentence of gaol and a Community Correction Order was within the range of sentences open to me.  It was accepted by Mr Albert that although Mr Ramadan was seriously injured when he fell onto the pavement following your tackle upon him, you did not intend to cause him serious injury or injury. 

26You have pleaded guilty to the offences of recklessly causing injury and unlawful assault.  There are two victims of your conduct.  I accept that with respect to Mr Ramadan, your conduct may be viewed as excessive self-defence.  Nevertheless, in responding in the manner you did you contravened the law.  The force you used was disproportionate to the threat you faced.  You should understand the inherent danger in rugby tackling someone to the ground, particularly on a hard concrete surface. 

27You pleaded guilty following a sentence indication hearing and the withdrawal by the prosecution of more serious charges with respect to your offending on Mr Ramadan.  Those charges, I was informed, included recklessly causing serious injury and intentionally causing injury.  I note that in 2019 you ran a contested committal hearing during which a witness Dr Marr, and the informant were cross-examined.  Notwithstanding that a contested committal took place, I will sentence you on the basis that your pleas were entered at a relatively early stage.  Until the sentence indication hearing you were facing more serious charges. 

28Your pleas of guilty have avoided the necessity of a trial and saved the court and community the cost of a trial.  Your pleas of guilty have also facilitated the course of justice. You are entitled to the utilitarian benefits that flow from entering pleas of guilty, particularly at a time when the court’s resources are under strain as a result of the COVID-19 pandemic. 

29I accept that as a result of your arrest following the commission of these offences, you lost your employment and accommodation and that this represents extra-curial punishment.  I also accept that you are genuinely remorseful for your conduct, this is indicated not only through your pleas of guilty, but also through the answers you gave to police when you were interviewed.  With regard to your prospects for rehabilitation I consider that they are fair at this time. You are in need of further psychological counselling and treatment as recommended by Ms Matthews. 

30In sentencing you I am also to have regard to the other sentencing principles set out in the Sentencing Act including general deterrence, specific deterrence, denunciation and just punishment.  Your conduct, as with all crimes of violence, must be denounced.  I consider there is also a need for the sentence to be imposed on you to reflect the need to deter others from engaging in similar conduct and to deter you from committing similar offences. 

31In my opinion, the sentencing objectives cannot be achieved through the imposition of the sentences urged by your counsel.  In this regard I have also taken into consideration the maximum penalties for the offences to which you have pleaded guilty, as well as current sentencing practices.  In my opinion it is appropriate that you be sentenced to a combination penalty of gaol as well as a Community Correction Order in respect of the indictable offence.  I have had provided to me a pre-sentence report which has found you suitable for a Community Correction Order. 

32Subject to your consent, I intend to sentence you to a term of imprisonment of 45 days, which is the pre-sentence detention in this matter, as well as a Community Correction Order for the charge of recklessly causing injury for a period of 12 months commencing today.  That order has mandatory conditions which apply to all Community Correction Order.  Those mandatory conditions are that you must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011, that in effect means you must not attend at the Community Correction Office under the influence of alcohol or drugs.

33You must report to and receive visits from the Secretary or his or her delegate.  You must report to the Community Correction Centre at Werribee within two clear working days of the order starting.  You must let a community corrections officer know within two clear working days of you changing your address or employment.  You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.  You must obey all lawful instructions from and directions of the Secretary or his or her delegate. 

34In addition to those mandatory conditions I also impose the following:  you must be under the supervision of a community corrections officer for a period of 12 months.  You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. 

35Mr Te Paerata Smith, do you understand each of those conditions that will apply to the order?

36OFFENDER:  Yes, I do, Your Honour.

37HIS HONOUR:  Do you wish to seek advice from your counsel in relation to any of them?

38OFFENDER:  No.  It'll be fine, Your Honour.  I understand everything. 

39HIS HONOUR:  Do you consent to being placed on an order?

40OFFENDER:  Yes. 

41HIS HONOUR:  With those conditions attached.

42OFFENDER:  Yes, I do, Your Honour. 

43HIS HONOUR:  Very well. 

44On Charge 1 you are convicted and sentenced to 45 days' imprisonment and a 12-month Community Correction Order on the conditions that I have just outlined to you. On the summary charge, you are convicted and you are fined the sum of $600. Pursuant to s18 of the Sentencing Act, I declare that the time to be reckoned as already served under the order is 45 days. Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty to the charge of recklessly causing injury, the penalty I would have imposed would have been one of 45 days' imprisonment, and a 24-month Community Correction Order on the same conditions as I have just outlined. 

45Mr Newton, Mr Albert, are there any matters that arise or any queries in relation to the sentence I have just imposed?

46MR NEWTON: No, Your Honour, only that with the combination sentence I don't believe it's mandatory for Your Honour to have to declare a s6AAA.

47MR ALBERT:  It's open to Your Honour and Your Honour has, which we're thankful for.

48HIS HONOUR: Yes. All right. Well, if I am required to impose or declare what I would have sentenced under s6AAA that would have been the penalty. All right.

49MR NEWTON:  As Your Honour pleases. 

50HIS HONOUR:  Now, Mr Te Paerata Smith will be required to sign the order.  Mr Newton, I would ask that you check it then you may take it to your client.  Or Mr Te Paerata Smith can step out of the dock and come and sit behind you.  You can then review the order with him, and once you're satisfied of it he can sign it and then I'll sign it.  Mr Albert, do you have a copy of the order?  

51MR ALBERT:  No.

52HIS HONOUR:  I'll ask my associate to print one for you. 

53MR ALBERT:  Maybe just email it (indistinct).

54HIS HONOUR:  All right.  We'll do that. 

55MR ALBERT:  Thank you. 

56HIS HONOUR:  Just before I accept that document, Mr Newton.  Stand up please, Mr Te Paerata Smith.  I should have informed you that if you breach the Community Correction Order you are liable to be brought back before me and re-sentenced on the offences for which I have just sentenced you.  I should say offence, because the order only applies in relation to the offence of recklessly causing injury.  Do you understand that?

57OFFENDER:  Yes, I do, Your Honour.

58HIS HONOUR:  All right.  Thank you.  Is the order in accordance with your client's understanding?

59MR NEWTON:  It is, Your Honour, and I have explained to him that which Your Honour just also informed him of. 

60HIS HONOUR:  All right.  Thank you.  Mr Te Paerata Smith, you can take a seat.  Once you have received a copy of the order you will be free to leave.  I hope not to have to see you again, and make sure you comply with the conditions of the order including reporting to the Werribee Community Correctional Services within two clear working days of today.  All right.  Thank you.

61OFFENDER:  Thank you. 

62HIS HONOUR:  Thank you.  You are all excused and I will call on the next matter, please.

63MR NEWTON:  As Your Honour pleases. 

64HIS HONOUR:  Thank you.  Thank you for your assistance, gentlemen. 

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