Director of Public Prosecutions v Tekopua
[2012] VCC 996
•18 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATEPI TEKOPUA |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2012 | |
DATE OF SENTENCE: | 18 July 2012 | |
CASE MAY BE CITED AS: | DPP v Tekopua | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 996 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P. O'Halloran | OPP |
| For the Accused | Mr. V. Nath | Plaiche & Martin |
HER HONOUR:
1 Matepi Tekopua, you have pleaded guilty to one charge of aggravated burglary, one of criminal damage and one of recklessly causing injury. On the evening of the 22nd of July last year, you had arranged to meet a friend of yours, Leishan Simiona. Mr Simiona was visiting a friend and neighbour of his, Brian McDonald and the two of them had been drinking. You joined them at Mr McDonald's house at about 7 p.m. that night. You drank together, the three of you, for some time. Somewhere after 8.30 Mr McDonald's wife came across the three of you and remonstrated with her husband for the amount of alcohol that he had consumed, and how drunk he appeared to be. He then suggested that the three of you go for a walk to sober up, and about 9 o'clock the three of you left Mr McDonald's house to go for that sobering up walk. It turned out to be far from that.
2 Not far from Mr McDonald's house, was a house occupied by a Mr and Mrs Sookhareea. Mr McDonald had developed a sense of grievance against the Sookhareea's, or the occupants of the house, or those he believed to be the occupants of the house. According to his police statement, he told the police later, that some weeks earlier, he had walked past their house, and saw two men who he described as being of Indian descent looking strangely at him. That appears to be the sole source of his sense of grievance against the occupants of the house. In his drunken state on the night that the three of you went for your walk, it was enough for him to go and bang on Mr and Mrs Sookhareeras door.
3 Mr Sukariya answered the door and told Mr McDonald to go away. He left and said something to you. According to Mr McDonald's police statement, he told you that the people in the house had been rude to him. From what you say, you were so drunk you cannot even remember what it was that Mr McDonald said to you about the Sookhareeras. Whatever it was, you took it upon yourself to go up to the front door of Mr and Mrs Sukiriya's home and yell at them. You yelled a number of times and obviously in a loud and aggressive voice, "What did you do to my friend?" - your friend being the man you had met only an hour or so earlier. You kicked the front door a number of times, and with sufficient force that you broke the lock and forced the door open. You barged into the house, still demanding to know what they had done to your friend.
4 The photographs show that the Sookhareeras had a large glass topped table in the house. You picked that large glass table top up, and hurled it onto the floor. Mrs Sukariya was terrified and ran out of the house. You picked up a chair and threw it at Mr Sukariya which hit him on his left hand, and caused him a sharp pain. You told Mr Sukariya that you were going to smash him. Mr Sukariya was understandably also terrified of what you were going to do and fearful that you were going to physically harm him. You approached him and Mr Sukariya ran away. You then picked up a lap top computer and took it outside and smashed it on the ground. Police arrived at that stage, and you, along with Mr McDonald and Mr Simiona were seen to be running away. You were all arrested and you were immediately identified by Mr Sukariya as the man who had entered the house, caused that damage and made those threats. As a result of your rampage, the house and property of the Sookhareeras was damaged. The front door frame and the door itself were damaged and the photographs show the force of impact of your kicks and the way the door was opened. There was damage to the plaster of the wall, obviously to the dining table that you had thrown and the chairs. There was damage to the bench top panel, to the flower pot that had been sitting on the table that you just knocked aside, and of course, to Mr Sookhareeras lap top computer.
5 When interviewed you agreed that you had yelled at Mr Sukariya "What did you do to my friend?" when you were in the house. When asked why you were there, you said you were there to find the truth and to know what was going on. You said you took Mr Sookhareeras lap top outside to show him how "pissed off he was" and acknowledged that you had caused damage to the table when you threw it over. When asked what was your reason was for doing that, for breaking into the house in the way you did, you said there was no reason. When asked your explanation for damaging the property, you said it was better than abusing somebody. You denied assaulting the victims and you denied throwing the chair at Mr Sukariya.
6 The Sookhareeras were understandably terrified. The privacy and sanctity of their own home, their sense of safety in it, was violated by you in a totally unjustified manner. Their victim impact statements make it clear how much their sense of safety and their sense of pleasure in their home and the neighbourhood has been violated, not just on that night, but since then, as a result and how much their trust in people has been affected by this random, violent, unprovoked and totally unjustified act.
7 The three offences to which you have pleaded guilty are serious and far to prevalent, and as such, they are offences where considerations of denunciation, just punishment and deterrence must be given significant weight. Your behaviour on this night can only be described as brutish thuggery. You did not know the victims and you had never met Mr McDonald until a couple of hours earlier that night. Whatever had occurred between Mr McDonald and the Sookhareeras, you had no right and no reason to take it on yourself to demand that the Sookhareeras account for their actions. There is simply no excuse for the wanton display of intimidatory violence that then followed. You were so drunk that you could not even remember when interviewed what Mr McDonald had said the occupants had done and which had precipitated your rampage.
8 It is no excuse, indeed it is a factor which adds to the seriousness of the offending, that you were drunk. You cannot blame anybody but yourself for your behaviour. You were not joining in somebody else's fight out of a misguided sense of loyalty or to protect somebody who was being attacked. You were not put up to it. You knew nothing of what had occurred in the past between Mr McDonald and the Sookhareeras and had no means of ascertaining whether what Mr McDonald had said was truthful or accurate. You had no knowledge of whether Mr McDonald had any justifiable cause for grievance against the Sookhareeras. Whatever may have happened, it was nothing to do with you. So there was no wrong, real or imagined, which you had any right to seek to avenge in the way you did.
9 The pointlessness of your conduct on that night is reinforced by the fact that as it turns out, Mr McDonald's grievance, such as it was, appears to be no more than taking offence at the way he perceived two people at the house had looked at him some weeks earlier. There is certainly no justification for acting in the way you did, because Mr Sukariya properly and understandably, told Mr McDonald to go away, when in his drunk state, he banged on his door that night.
10 I accept that this was an unplanned, individual spontaneous and alcohol-fuelled act. You indicated that you intended to plead guilty at committal on 27 January this year, just six months after the offence and it was on that date that your plea date of 4 July was fixed. When your plea commenced on that day, I was told that the defence was not ready and that the plea would have to be adjourned part heard for a period of at least eight weeks, so psychological reports could be obtained. No application to vacate that date had been made to the list judge in compliance with paragraph 36 of practice note PNCR2 of 2010.
11 On further inquiry, it became clear that the reasons for the lengthy adjournment sought, was because you had failed to attend the appointments made for you by your solicitors. Immediately after your committal, I was told, your solicitors had made arrangements for you to attend an eight week counselling course with a psychologist, Ms Amanda Wallace. As I understand it, the course was rehabilitative, designed to address the offending behaviour, in particular, anger, violence and alcohol abuse. Your solicitors had also made contact with SEADS, The South Eastern Alcohol and Drug Service, and arranged for you to attend for alcohol specific assessment and treatment. They wrote to you in February telling you what steps you needed to take to attend those appointments. I was advised that you were told of the importance for your plea hearing of showing that you had taken steps to address your obvious problems, manifested that night with anger, impulse control and alcohol abuse. You did not attend any sessions with Ms Wallace or follow up as required with SEADS. On discovering, the week before the plea was due to be heard that you had not attended Ms Wallace's programme or submitted yourself to SEADS, your solicitors made further appointments with them for you.
12 The only explanation advanced for your failing to attend the course with Ms Wallace and for assessment and treatment at SEADS was that your mother had been pre-occupied between February and July with the needs of her dying mother and then had had to go to Tahiti to attend the funeral of another family member, and so she had been unable to ensure that you attended. That is no excuse. You have no disabilities which prevented you from attending of your own volition or which meant you needed parental supervision to ensure that you attended. It was not up to your mother to make you to attend, it was up to you to take responsibility for attending, and up to you to demonstrate some commitment to addressing the problems which had contributed to the offending on this night. In those circumstances, I saw no reason to adjourn, simply to allow you a further opportunity to attend programs you had, for no good reason, failed to attend before your plea date had arrived.
13 You were 22 at the time of the offending and you are now 23. You are one of eight children. Your family came to Australia from the Cook Islands when you were two and you have lived here with them, ever since. You were educated here to Year 11 and since then have worked in various semi-skilled and skilled labouring and construction jobs. You have a good work history. You worked for four years for one employer in welding and assembly work, staying there until you were retrenched. You have most recently worked tensioning beams on roadways and construction sites. I accept you have a good and steady work history. You are in a stable, long term relationship with your partner, and I am told she is expecting twins. You are close to your family, your siblings, your parents and your extended family, and many of them were at court on the plea date and again today, to express their support for you.
14 I was told that since being charged, you had again taken on full time employment. It would appear that, at the time offending, you were unemployed. That was perhaps following the retrenchment, but that was not quite clear on the material before me, and since being charged, you have spent your weekends involved in church activities. You and your family are members of the Seventh Day Adventist Church. A large bundle of testimonials was tended from family and from church members, attesting to your otherwise good character.
15 As part of your pre-committal bail, you were required to attend a positive lifestyle programme run by the Salvation Army Court Counselling Services, and two copies of your certificate of attendance have been produced. They show that you attended the 10 one hour sessions involved in that programme and completed it by late September of 2011.
16 When I asked about your alcohol intake, I was told that at the time of the offending, you were drinking a slab of beer a day and on the night of the offences themselves, you had drunk cognac for the first time. I was told that you no longer drank alcohol, or only once or twice a month in modest amounts and only with family. No evidence was called to verify this and having regard to your failure to engage with Ms Wallace and SEADS, I am unable to make any finding favourable or unfavourable about your current drinking habits.
17 The family support that you clearly have, your church involvement, your return to employment and your compliance with the pre-committal bail requirement to attend the Positive Lifestyle Program are all matters to take into account in your favour. You have the supports around you to assist in your rehabilitation if you choose to take advantage of them. However, the existence of those supports makes your failure to attend to rehabilitative programmes arranged for you after committal, all the more troubling. No explanation, other than lack of commitment to address the problems which contributed to your offending, is open on the materials before me.
18 You have only one previous conviction and there are no subsequent matters. Your generally good record, therefore, also counts in your favour. Your one previous conviction is for assault. It was dealt with ex-parte in the Wollongong Local Court on 21 July 2011, the day before these offences.
19 You admit the conviction. On the day the plea was heard, your instructions were that you were unaware that you had been charged, and that in any event, the true offender was your half-brother who had wrongly used your name. I was told that the prosecution had first put you on notice that they would rely on this as a prior conviction at the committal. You advanced this explanation for the conviction at that time. Mr Nath told me that you were advised in February of this year of the steps that you could take to apply to set aside the conviction or appeal it, so as to correct your criminal record. You have not taken any steps to do that. At that stage, there being no evidence of the circumstances of the conviction and given the explanation that you had advanced, I indicated that I could not make any findings about the circumstances on the materials then before me. All I could do was take into account the fact that you had a conviction for assault recorded against you, but could make no findings, whether in your favour or adverse to you concerning the circumstances.
20 The Wollongong Court documents have now been obtained and provided. They reveal that you signed a bail undertaking on 10 July 2011 requiring you to attend at the Wollongong Court on 21 July. You now instruct that you were aware that you were on bail and were charged with assault, but that you had no money to enable you to go to Wollongong Court to contest the charge. You maintain your instructions that you were wrongly convicted, that your brother was the main assailant and that you acted in the role as peacemaker.
21 The prosecution summary that has been provided in respect of the Wollongong matter, clearly identifies you as the main assailant. It identifies you as the partner of the victim. I am told that the woman, the victim, is indeed, not your partner, but your step-brother's partner, and that your partner has a different name, Eveline Leong.
22 In those circumstances, I am not able to make any findings about the circumstances of the assault and whether you were truly the assailant, so I am left in the position that I was at the earlier hearing; that is, that I take into account that you have a conviction for assault against your name, but I cannot take into account, either as a circumstance adding to the seriousness of the situation you find yourself in today, or mitigating the seriousness of the situation you find yourself in today, by reason of accepted facts or proven facts about the circumstances of the conviction. So I make no adverse findings against you in respect of the circumstances of that previous conviction, but nor do I make any affirmative findings in your favour. It is simply a neutral matter that you have a previous conviction for assault. I treat you, therefore, as not coming before the court as a first offender, but that is as far as it goes.
23 You entered your pleas of guilty at what I accept is the first opportunity. That entitles you to a reduction for utilitarian purposes in the sentence otherwise to be imposed. You have clearly not only saved court time and enabled the matter to be heard within a very short time of the offences, but most significantly, you have saved the Sookhareeras the added strain of having to re-live the events and having to face the prospect of coming to court to recount the events, and to be questioned about them. That is a significant saving.
24 You have, with the assistance of a member of your church community, written a letter of apology to the Sookhareeras. I accept that you are sincere in your expressions of regret, but I am concerned that in that letter you place the blame for what happened on Mr McDonald. You said that you were "provoked" by him to "defend him in a conflict they were to confront." That is at odds with the agreed summary.
25 I am also concerned that you said in the letter that you had voluntarily completed an anger management class, when the material before me indicates that you had completed a Positive Lifestyle program which in part dealt with anger management and which your counsel told me, you were required to do, as part of your pre-committal bail conditions. It is clear from the letterhead of the reports, that it was a court and Corrections related service that the Salvation Army were providing, and that you participated in. You also said in your letter of apology that you had booked an appointment with SEADS to help you cope with alcohol issues. Again, that is of concern, because the evidence before me indicates that you failed to attend SEADS when arrangements were made for you in February, and any efforts to engage with SEADS in the days before the plea, can hardly be described as voluntary or self-generated.
26 In young or relatively young offenders, which at 23, I consider you are, encouraging rehabilitation is an important consideration. It must be balanced against the other sentencing principles which I have identified earlier, particularly when sentencing for offences like these, which are far too prevalent and far too often committal by young men fuelled by alcohol and naked aggression. You have done nothing to encourage your own rehabilitation, despite the considerable assistance that you have been provided to do so, That means that the weight to be given to rehabilitation must be tempered by the weight to be given to specific deterrence, and to just punishment, denunciation and general deterrence.
27 In all of the circumstances, I consider that no sentence other than one of imprisonment immediately served, is open. Mr Nath initially submitted that a Community Based Order, now of course, a Community Corrections Order, was open. I have no confidence, on the materials before me, that you have the will or the desire to comply with a Community Corrections Order.
28 Mr Nath then submitted that I should impose a suspended sentence. That is not open to me, as a fully suspended sentence or a partially suspended sentence is not available for aggravated burglaries committed after May 2011. In any event, a fully suspended sentence would not have been open in the circumstances, given the matters I have referred to, evidencing your lack of commitment to your own rehabilitation to date. However, your relative youth and the positives that I have identified that count in your favour, make it clear that the sentence should be moderated generally and that I should leave a considerable gap between the head sentence and the non-parole period.
29 I have considered, that although this is one episode, there should be a modest degree of cumulation between the sentences for the three offences to mark the three different types of misconduct. Could you now please stand.
30 Matepi Tekopua, on the three charges to which you have pleaded guilty, you are convicted: On Charge 1 of aggravated burglary, you are sentenced to be imprisoned for a period of 2 years; on Charge 2 of Criminal Damage, you are to be sentenced to be imprisoned for a period of 18 months and I direct that three months of that sentence be served cumulatively upon the sentence on Charge 1 and the partial cumulation order I am about to pronounce on Charge 3; and on Charge 3 of recklessly cause injury, you are sentenced to be imprisoned for a period of six months, and I direct that three months of that be served cumulatively upon the sentence on Charge 1 and the partial cumulation order on Charge 2. That makes a total effective sentence of two years and six months and I direct that you serve a period of 12 months before being eligible for parole.
31 I declare pursuant to s.6AAA of the Sentencing Act that but for your pleas of guilty, I would have sentenced you on Charge 1 to be imprisoned for three years, on Charge 2, to be imprisoned for two years and 3 months, and on Charge 3, to be imprisoned for 9 months, with similar partial cumulation orders I would have fixed on a total effective sentence of 3 years and 9 months, and I would have fixed a period of two years, as the time to be served before being eligible for parole.
32 I have also been asked to make orders for compensation to the Sookhareeras in the amount of $1000. You have consented to that order and I will make it. I have also been asked to make an order pursuant to s.464ZF of the Sentencing Act, that you provide a forensic sample, and I propose to do that. I consider the seriousness of the circumstance of the offending warrant the order and I note that it is by consent. I am going to make the order for that forensic sample by way of the taking of a scraping from the mouth. That is a buccal sample. That requires a swab, like a cotton bud, to be rubbed by you, on the inside of the mouth until a sufficient sample is provided. I must warn you that if you do not consent to the taking of that sample under the supervision of an authorised member of the police force, then the sample that will taken will be a blood sample, that is the more invasive means of taking a sample and the police may use reasonable force to enable that sample to be taken. Do you understand that.
33 PRISONER: Yes, thank you, Your Honour.
34 HER HONOUR: Thank you. You can take a seat while I sign these ancillary orders. While I'm doing that, do the sentences I pronounce reflect what I said I intend to do and is the arithmetic correct.
35 MR O'HALLORAN: Yes, Your Honour, and does Your Honour formally declare the 16 days.
36 HER HONOUR: Thank you, no. I declare that you have spent 16 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. Those orders are signed. Thank you, could you remove Mr Tekopua please. We will adjourn.
- - -
0
0
0