Director of Public Prosecutions v Tekeu
[2016] VCC 1086
•28 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-00623
Indictment No E14181431
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA TEKEU |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 July 2016 | |
CASE MAY BE CITED AS: | DPP v Tekeu | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1086 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Burnett | |
| For the Accused | Ms D. Lamovie |
HER HONOUR:
1 Joshua Tekeu, you have pleaded guilty to one charge of armed robbery. The maximum penalty for that offence is 25 years’ imprisonment.
2 The prosecution sought an order for the forfeiture and disposal of certain items; the making of that order was consented to.
3
The circumstances of your offending are set out in the Summary of Prosecution Plea Opening which was tendered as Exhibit A. In brief, the circumstances are as follows. The offending occurred on 5 November 2014. You were then
21 years old. At about 11.45 pm the victim got off a train at Springvale railway station and started to walk home along Springvale Road. The victim was talking on his mobile phone as he walked. He saw you walking ahead of him and turn down an unknown side street.
4 As the victim walked past the next intersection you came up to him from behind and grabbed him around the neck whilst holding a 30 cm knife. You demanded the victim’s mobile phone and wallet while holding the knife to his neck. You caused a 5 cm laceration to the left-hand side of the victim’s neck, resulting in residual scarring. The victim said he was going to the police station. He removed his mobile phone from his pocket and gave it to you. You demanded his wallet, and the victim gave you that also. You then pushed the victim down to the ground and ran down the side street. The victim went across the road to the Springvale police station to report the incident.
5 On 1 December 2014, a Crime Stoppers poster was distributed to metropolitan railway stations on the Pakenham and Cranbourne lines. The poster contained stills taken from CCTV footage depicting you. On 17 December 2014 you and your father went to the Springvale police station. You were interviewed; you made a number of significant admissions. You said you had been drinking with your father from about ten or 11 that morning and had consumed more than a slab of beer. You said you could not remember the armed robbery. You said you were in the area of Springvale Road that night. You also identified yourself in the CCTV footage and stills shown to you by the police.
6 You told police you were not in possession of a Sony Xperia mobile phone and that no one else used your SIM card. Optus phone records show that the Sony Xperia mobile phone owned by the victim was used by your mobile number between 29 November 2014 and 8 December 2014.
7
You spent 48 days in custody on remand from 17 December 2014 to
2 February 2015. You pleaded guilty at a final directions hearing on
3 March 2016.
8 In sentencing you, I have taken into account your personal circumstances which were described by your counsel and in the report of Mr Jeffrey Cummins, psychologist, dated 23 March 2016 (Exhibit 2). Reports from the CREDIT Bail Support Program were tendered as Exhibit 3.
9 You were born in New Zealand and came to Australia with your family when you were about ten years old. Your father is an alcoholic and your parents separated when you were 14 or 15. You lived with your mother but maintained contact with your father. You left school during Year 11. You told Mr Cummins you left school because you had met a girl and went to live with her in Sydney. You lived in Sydney and worked for a time before moving back to Melbourne. You lived again with your mother and worked doing container unloading work. You were unemployed and living with your father for some months prior to this armed robbery. Your father sent you to Sydney to stay with your aunt to look for some work. It was then that your father saw the posters about the armed robbery and told you to come back to Melbourne and to go to the police.
10 You were employed from about April 2015 to February 2016 as a machine operator. You stopped that work as the hours were too long and have been unemployed and looking for work since. Since December 2015, you have been in a relationship with a young woman. She has been living with you.
11 You told Mr Cummins that around the time of committing the armed robbery, it was not unusual for you to drink in excess of two slabs of beer or bourbon and coke cans per week. You said that you have not consumed any alcohol since the armed robbery and that you do not want to be like your father. You said that your girlfriend does not want you to drink. You told Mr Cummins that you must have been very drunk to have done what you did and that you would never do anything like that if you had not been drinking. You said you knew what you did was very wrong.
12 Mr Cummins is of the opinion that you should receive mental health treatment in respect of a probable trauma-related adjustment disorder as a result of having witnessed violence perpetrated by your father against your mother in New Zealand. Mr Cummins is of the view that you are at risk of becoming an alcoholic. It is his opinion that the risk of you committing further offences would be very much linked to whether or not you maintain “sobriety with respect to alcohol”. Mr Cummins suggests that because of your “current relative psychological stability I would expect his mental health would deteriorate if he were again incarcerated. He still presents as an immature and psychologically vulnerable person.”
Your counsel made sentencing submissions orally and in writing (Exhibit 1). In sentencing submissions, your counsel accepted that your offending was serious and that the cut to the victim’s throat was an aggravating feature. She submitted that the offending was not prolonged and was opportunistic. In mitigation, your counsel particularly relied on a number of factors, including (a), your plea of guilty; (b), your remorse, (c), your youth; (d), your lack of prior criminal history; (e), your cooperation with police; (f), the significant steps taken towards your rehabilitation; (g), your prospects of employment; (h), the prospect of deportation if you received a custodial sentence of more than 12 months; (i), the offending being out of character and; (j), the support available from your family and community.
13 Your counsel submitted that the appropriate sentence would be a community correction order which would give you the opportunity to take part in a structured program of treatment and rehabilitation in the community. This would enable you to maintain your family connections. She submitted that a community correction order would include conditions tailored to specifically address supervision and treatment programs including participation in an anger-management program which Mr Cummins thought was appropriate. She submitted that a community correction order would fulfil all the aims of sentencing, including the punitive and rehabilitative ones.
14 The prosecutor in sentencing submissions addressed the seriousness of your offending and submitted that general deterrence, denunciation, just punishment and community protection would remain significant sentencing considerations despite your youth and prospects for rehabilitation. The prosecutor submitted that a community correction order alone could not adequately meet the appropriate sentencing purposes.
15 Further written plea submissions on your behalf were filed on 2 June 2016 which was the day prior to the date set for sentence, which was 3 June 2016. On that day, the matter was adjourned for consideration of the further submissions. In these further submissions, your counsel reiterated and developed earlier submissions. She particularly emphasised that you had attended the police station voluntarily with your father. She says, "It is not clear that the police had identified the accused as the perpetrator of the offence as opposed to a person of interest." She says you did not make admission to the offence but did identify yourself in the CCTV footage.
16 Your counsel submitted that the admissions and attendance at the police station amounted to additional cooperation that warranted additional litigation beyond the plea of guilty. Your counsel also clarified that the CREDIT Bail Support Program had ended through no fault of yours.
17 The prosecution was content to rely on earlier submissions.
18 The matters raised in those further submissions had previously been fully considered by me in considering the appropriate sentence prior to 3 June 2016. I have given them further considerations in determining the appropriate sentence today which is not altered from that which I previously indicated.
19 Joshua Tekeu, the offending in which you engaged was serious. The maximum penalty of 25 years indicates the seriousness with which Parliament on behalf of the community takes armed robbery. You robbed the victim late at night, knowing that he was isolated and vulnerable. You stood over him and held a knife to his neck, sufficiently close for him to receive a significant cut. You took his phone and his wallet. There was no sophisticated planning involved in this armed robbery but it appears that you had been walking in front of the victim and then turned down a side street to come back behind him. You were also carrying a knife which you were prepared to use.
20 The victim in this matter must have been very scared. Hearing of this sort of crime causes fear in the community. Any citizen should be able to walk in the streets at any time of the day or night without being robbed at knifepoint. This kind of crime must be strongly denounced and severely punished.
21 You are young and for that reason your rehabilitation must be a very significant sentencing consideration. In view of the gravity of this offence, sentencing considerations to do with your youth and potential rehabilitation do not remove entirely the need for a sentence which may serve to discourage others from similar offending, justly punishes you and deters you from further offending in this regard.
22 There are a number of matters which suggest that your prospects of rehabilitation are good, provided that you control your alcohol use. You did go to the police with your father and while you did not make full admissions you were cooperative with the police. You ultimately pleaded guilty and accepted your legal and moral responsibility for the situation. I accept that you are remorseful. You have insight that drinking alcohol to excess causes you to have significant problems in terms of your behaviour, including anger-management issues. I do not consider that anger-management issues have been demonstrated to have any part to play in this offending but you have indicated that that is part of the problem that you have when you drink alcohol in excess.
23 You are of previous good character. A number of members of your family and community were in court to support you. Your pastor, the Reverend Tairea, gave evidence on your behalf. I accept from what he said that you have been involved with his church youth activities and that you are well-regarded by other members of the church. It appears that you have gradually talked to him more about your problems and have demonstrated positive changes in your life. Your girlfriend is the Reverend Tairea’s granddaughter. Reverend Tairea clearly is supportive of your relationship with his granddaughter and says that he has never seen you behave aggressively or be affected by alcohol.
24 The CREDIT Bail reports indicate you were consistent in attending your supervision appointments but the writer has described some difficulties in you engaging with some aspects of the program. You are reported to have attended six sessions with a psychologist, arranged through your general practitioner.
25 I accept that this type of offending is out of character for you. I also accept on the basis of Mr Cummins’ report that you are to a degree, psychologically vulnerable as well as being youthful.
26 I consider that a community correction order alone would not be adequate for the sentencing purposes of general deterrence, denunciation and just punishment, although those considerations ought to be reduced in significance because of your youth. I consider that imprisonment potentially has some disadvantages for a person of your age and vulnerability but the objective gravity of this offence is such that a short period of imprisonment to be followed by a community correction order is the only appropriate option. I have taken into account both the punitive and rehabilitative aspects of a community correction order. I consider that a combination of a period of imprisonment to be followed by a community correction order would properly meet those sentencing requirements together with supervision and support for your rehabilitation. It is clear that your rehabilitation is in the community’s interest as well as in your interest. In determining the period of imprisonment, I have decided on the shortest period I consider would meet the relevant sentencing purposes in application of the principle of parsimony.
27 You have been assessed as suitable for a community correction order. I propose to sentence you to a term of imprisonment to be followed by a community correction order. I may only impose a community correction order if you consent to the making of that order. The order that I propose to make is for a period of 3 years with special conditions that you perform 300 hours of community work, be under the supervision of Community Corrections, undergo assessment and treatment for drug and alcohol issues, assessment and treatment for mental health issues and assessment for and participation in programs to reduce re-offending. Any hours that you spend in treatment and rehabilitation programs would be deducted from the work hours. You have had the opportunity to have the core conditions explained to you. Do you understand the conditions that I propose or do you wish to speak to counsel?
28 OFFENDER: I understand, Your Honour.
29 HER HONOUR: Do you consent to that order being made?
30 OFFENDER: Yes, I do.
31 HER HONOUR: Joshua Tekeu, on Charge 1, you are convicted and sentenced to a term of imprisonment of six months to be followed by a community correction order for a period of three years with the special conditions that I have outlined.
32 You must understand that one of the basic conditions of that order is that if you do not comply with directions or if you re-offend during that period of three years, you can be brought back to court before me and re-sentenced. Do you understand that also?
33 OFFENDER: Yes, I do, Your Honour.
34 HER HONOUR: But for your plea of guilty I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. I declare that you have served 113 days of this sentence by way of pre-sentence detention to be deducted administratively.
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