Director of Public Prosecutions v Tewaka
[2021] VCC 1477
•1 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00837
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEHIRA TEWAKA |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF SENTENCE: | 1 October 2021 |
CASE MAY BE CITED AS: | DPP v Tewaka |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1477 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Carjacking - possess drug of dependence - drive in a manner dangerous
Legislation Cited: Sentencing Act 1991, Road Safety Act 1986
Cases Cited:DPP v Tewaka [2014] VCC 953,
R v Verdins, R v Buckley, R v Vo [2007] VSCA 102,
DPP v Leishman [2019] VSCA 270Sentence:3 years and 9 months' imprisonment, non-parole period of 2 years
and 6 months' imprisonment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell | Office of Public Prosecutions |
For the Accused | Mr J. Desmond | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Tehira Tewaka, you have pleaded guilty to one charge of carjacking, one charge of possession of a drug of dependence and one uplifted summary charge of driving a motor vehicle in a manner dangerous.
- Carjacking carries a maximum penalty of 15 years' imprisonment.
- Possessing a drug of dependence carries, in the relevant circumstances, a maximum sentence of 12 months' imprisonment or a fine of 30 penalty units.
- Driving in a manner dangerous carries a maximum penalty of two years' imprisonment or a fine of 240 penalty units.
2I note that carjacking is what is known as a Category 2 offence, which means that I must impose a custodial sentence for this offence unless certain criteria apply. Your counsel has conceded that no such criteria apply in this case.
3For the sake of clarity, I note that it was pointed out to me at the outset of the plea hearing that the indictment and court listing charged you under an incorrect name: Tehira Simon. I therefore gave leave for the indictment and notice of related summary offences to be amended to reflect your correct name.
4Your prior criminal history dates back to 2002 and shows various convictions for violent and offensive conduct, damaging property, threatened violence and dishonesty. You have served terms of imprisonment. You have been in custody for these matters since your arrest on 1 October 2019.
5The prosecution relied on a Summary of Prosecution Opening from which your offending may be described as follows.
6At about 9 am on Saturday 14 September 2019 the male victim, who was then aged 79 years, was reversing his red Ford Mustang motorcar out of his driveway and onto Walton Street, Brunswick. His wife, the female victim, then aged 74 years, was in the passenger seat. She noticed that their neighbour, who was also reversing out of her driveway, had left a cup of coffee on the roof of her car.
7The male victim got out of his car, leaving it running in Walton Street, and walked over to the neighbour. He took the coffee cup from the roof of her car and handed it to her through her driver's window.
8As he was walking back to his car, you jumped into the driver's seat and yelled at the female victim, 'Fucking get out.' You yelled it repeatedly and threw a large red sports bag on top of her.
9The female victim got out of the car, taking your bag with her. As she did so, the male victim attempted to pull you out of his car. You yelled at him, 'Get out, get out' and pushed him to the ground. You then began driving the car, which lurched forward. That conduct gives rise to Charge 1 of carjacking.
10Discovering that the street was a dead-end, you then reversed the car at a fast speed, almost hitting the male victim who was still on the ground. You also drove into the kerb in your hurry to escape, damaging the front of the car. This conduct gives rise to the related summary charge of driving in a manner dangerous.
11Police attended the scene and examined the red sports bag. It contained bank documents in your name as well as some clothing and a toothbrush.
12At about 2 pm that day, the car was found in Reservoir. It had been jacked-up and the spare wheel had been fitted to the driver's side. A Ford Mustang wheel with a punctured tyre was beside the car. The car was examined and a fingerprint belonging to you was located on the internal side of the spare wheel.
13On 1 October 2019 at about 3.20 pm you were located and arrested. You were searched and a small bag of methylamphetamine was found in the pocket of your pants. That conduct gives rise to Charge 2 on the indictment of being possession of a drug of dependence.
14You were taken to Broadmeadows Police Station and interviewed. You largely exercised your right to make no comment to the questions you were asked.
15No victim impact statement has been provided; however it is to be inferred, and I find beyond reasonable doubt, that the whole experience, right outside their own home, must have been terrifying for the two victims and must inevitably have had continuing adverse impacts upon their mental wellbeing and enjoyment of life.
16Your offending in the carjacking is aggravated by your actual violence towards the male victim. I accept that there is no evidence of pre-planning, but this was a callous and opportunistic carjacking committed upon relatively elderly and defenceless victims who you must have assessed to be soft targets for your cowardly acts of thuggery. I note that you claim to have been six foot two inches in height and weighing 106 kilograms at or about the time of the offending.
17In your hurry to escape, your driving could have caused further personal harm. I regard your offending conduct on 14 September 2019 as involving serious examples of the two offences to which you have pleaded guilty. You are very fortunate that no more serious damage to property or physical injury resulted.
18I now turn to matters personal to you.
19You are now 38 years of age, having been born in October 1982, and you were aged 36 at the time of the offending.
20Your counsel has tendered a written outline of plea submissions together with a report dated 11 September 2021 by psychologist Mr Ian McKinnon.
21That report provides useful detail about your upbringing, education, psychological, social, relationship and substance abuse history and your decade-long working history in the manufacture of caravans in which you were engaged from 17 years of age until you were aged 28.
22Your subsequent effort at running your own business in that industry was brought undone by a three-month term of imprisonment in 2011, and your methylamphetamine habit contributed to that as well.
23You have apparently not worked since you went into custody in 2013. I shall not repeat in detail the content of Mr McKinnon's report, but I shall return to aspects of it in due course.
24In his written outline your counsel, Mr Desmond, referring to you as “the accused”, summarised your personal history in bullet form, and I include an extract below (with corrections as to minor typographical errors and some names omitted):
• Grew up in ‘blended’ family with 4 half-sisters and 2 half-brothers in Craigieburn;
• Parents separated when aged 1 yr.;
• Childhood absent of any significant abuse;
• Traumatic event aged 12 when his older brother shot and killed during a police siege. In August 1995, when aged 12, his brother, who was 21 years old and suffering from psychosis, was shot dead by police after a siege at the accused’s home. The accused was hiding in the shop next door at the time, and saw police come into the shop covered in blood. One of them said something about wanting to get the deceased’s blood off him and suggested that the deceased may have had hepatitis B. One policeman, Mr Ball, sat with the accused all night to comfort him. The accused was and remains traumatised by his brother’s death and developed anger towards police. At the age of 13 or so, he started drinking and smoking marijuana and getting into trouble with police.
• The accused was a very good footballer at school and played VFL for two years from the age of 16.
• Accused’s father dies when the accused imprisoned – permission not given by Corrections to attend funeral;
• The accused has had two significant relationships and has 3 children. His personal relationships have been complex. He has two children with his childhood sweetheart, [Ms X], with whom he has lived on and off for many years. During one period of separation in 2010, he formed a relationship with her best friend, [Ms Y], and has a son together, … , who was born in June 2011. He then separated from [Ms Y] and returned to [Ms X], but the relationship with [Ms Y] caused friction in his relationship with [Ms X] and some of his criminal history includes incidents involving [Ms X] and [Ms Y].
• The accused still struggles with the break-up of the 12-year relationship with [Ms X].
• Prior to remand had regular contact with his 2 eldest children and looking to establish regular contact with his 10-year-old daughter subsequent to his sentence.
Education and Employment
• Whittlesea Secondary Year 11;
• Often hung around the wrong crowd getting into trouble;
• Worked for a decade with a relative of his stepfather in the caravan manufacturing business;
• For a few years until aged 28 he ran his own company installing aluminium cladding for caravans. He employed 2 or 3 workers. However, in 2011, when he spent 3 months in jail, he lost a number of contracts. The accused was using ice, and could not maintain his employees. The business failed. In 2012 and early 2013 he worked casually in manufacturing caravans, but the work dried up about 6 weeks before he offended again.
25Now that was a useful history and I take all that into account. It is clear that you had some very serious difficulties in your childhood and they have been reflected in the reasoning and the report of Mr McKinnon.
26I note that between March 2002 when you were 19 years old and May 2014 when you were 31 years old, you have numerous appearances in Magistrates' Courts for a variety of offences, mostly involving violence, threats of violence, possession of weapons, resisting police, offensive behaviour, damaging property and dishonesty.
27In the main, you appear to have been treated leniently during that period and were given repeated opportunities for rehabilitation through community-based orders and an intensive correction order.
28It was not until you were sentenced in this court on 19 June 2014 that you received a substantial term of imprisonment, namely, five years’ imprisonment with a non-parole period of three years, after pleading guilty to offences including aggravated burglary with a firearm, recklessly causing injury and unlawful assault.
29A further appearance at the Melbourne Magistrates' Court on 18 July 2014 resulted in concurrent sentences of imprisonment for offences of making threats to kill, stalking and making threats to inflict serious in jury.
30You were taken into custody for that series of offences on 22 September 2013 and released after serving the sentences imposed for those offences on 20 October 2018.
31You were arrested for these offences on 1 October 2019 and have been in custody since. You have therefore been free in the community for less than 12 months over the last eight years of your life. Unfortunately it seems that that 12-month period was affected by your heavy use of illicit drugs.
32In his written outline, Mr Desmond described your substance abuse history as follows (and again, I provide an extract):
• Cannabis and alcohol use since aged 13 yrs.;
• Amphetamines since aged 17 years and recreational ecstasy and ICE
• Early 20’s cocaine, GHB (recently) benzos, ketamine and buprenorphine. Habitual cannabis user.
• Heavy illicit drugs in adulthood at times in particular during the 12 month period he regained his freedom in late 2018;
33I understand the last comment to mean that for the period during which you were in the community up to your arrest on 1 October 19, that 12-month period, was attended by heavy use of illicit drugs.
34That history is supplemented by Mr McKinnon in his report at p5 as follows, and I quote:
‘Mr Tewaka reported that he had started smoking cannabis and drinking alcohol, when he was about 13 years old. By the time Mr Tewaka was 15 years old, he was smoking cannabis habitually.
‘Mr Tewaka reported that he had first used amphetamine when he was 17 years old, with his peers in his football club. At around the same age, Mr Tewaka accompanied friends to Melbourne nightclubs, drinking alcohol and sometimes using ecstasy and amphetamine. Later, Mr Tewaka also started smoking methyl amphetamine (ice).
‘Since his early 20s, Mr Tewaka has also used cocaine, GHB (only recently), benzodiazepines, ketamine and buprenorphine. Until the age of 28 years, Mr Tewaka smoked cannabis habitually.
‘Mr Tewaka reported that, by the time of the offences in 2019, he tended to use GHB (typically 75 to 150 mg a day, 5 mg “a squirt”), cocaine (“heaps”) and ice (1.7 to 2 grams), daily, for extended periods, without proper sleep. Mr Tewaka noted: “Once I start, I don’t stop until I blow out for an hour, then I’m up and going again.”
‘Mr Tewaka stated that he had tried to gain admission to a residential treatment program, sometime during 2019, “but I couldn’t get in.”’
35Mr McKinnon then explains that:
'Given Mr Tewaka's history of violent offending, I suspect this may be a reason he struggled to gain admission - most residential programs being reluctant to admit clients with a significant history of violence.'
36And then at p7 of Mr McKinnon's report, he continues in relation to your drug use, as follows:
‘By 2019, Mr Tewaka was a very heavy user of GHB, cocaine and ice (which he abused habitually, up until his current remand).’
37In both written and oral submissions, your counsel relied upon the content of Mr McKinnon's report in support of his submission that Verdins[1] principles 1, 3 and 4 applied to moderate sentence 'to some degree by reason of the causal link between the mental illness and the offending.'
[1]R v Verdins, R v Buckley, R v Vo [2007] VSCA 102
38He also argued, though faintly, that Verdins principle 5 applied to reduce the sentence. In support of those arguments he also drew my attention to the sentencing remarks of Her Honour Judge Davis in DPP v Tewaka [2014] VCC 953.
39I have considered Her Honour's remarks, and note that apart from dealing with a different factual context, there was no opposition from the prosecution to the application of Verdins principles arising from what was said to be an established causal connection between your PTSD and the offending conduct.
40Unsurprisingly in those circumstances, Her Honour found in favour of applying the principles. She also found that Verdins principles 5 and 6 were enlivened, again in the absence of dispute from the prosecution. In this case, the prosecution has disputed the enlivenment of Verdins principles.
41During oral argument, I noted that it was unfortunate that the prosecution had not required Mr McKinnon to attend the plea hearing for cross-examination in view of the fact the prosecution took issue with opinions expressed in his report, particularly at p8 where Mr McKinnon stated:
'In my opinion, Mr Tewaka's chronic PTSD and PSDD made a highly significant contribution to his offending by degrading his ability to reason and make sound judgement, eroding his sense of personal responsibility and making him more impulsive and prone to angry, unrestrained, destructive and self-destructive behaviour.'
42Instead, counsel for the prosecution explained that the prosecution relied on the lack of consistency, logic and persuasive quality of the report itself to support its argument that no causal link had been established between the mental illnesses and the offending such as to enliven Verdins principles 1, 3 and 4.
43Likewise, the prosecution disputed the claimed foundation for the application of principle 5. For reasons which follow, I conclude that the prosecution was justified in taking that course.
44I confess that I am bewildered that a forensic psychologist, even or perhaps particularly, one who has been in practice for 18 years, is able to reach an opinion as strongly expressed as that set out in the passage that I have just read, after a single interview via video link.
45My unease is heightened by the fact that there is no evidence that in preparation for his interview with you, Mr Tewaka, Mr McKinnon was given any relevant background information other than the indictment, the notice of related summary offence and the Victoria Police criminal history report.
46Nor is there any evidence that Mr McKinnon sought or obtained any details of the offending conduct beyond that disclosed in the particulars of the charges in the indictment and in the notice of related summary offence.
47Indeed, the only other references to the offending I could find in Mr McKinnon's report were also at p8 of his report where, immediately preceding the opinion which I quoted a few minutes ago, he stated as follows:
‘In addition to victimizing other people, Mr Tewaka’s offending also appears to have had a strongly self-destructive element to it. Indeed, Mr Tewaka recalled that, in the period leading up to his remand, he had been “on the run” after convincing himself that he would be imprisoned over minor matters and he developed a fatalistic attitude, aiming to abuse illicit substances until he was inevitably arrested. In hindsight, Mr Tewaka noted: “I should have handed myself in, but I just thought, ‘fuck it’.”
‘At the time I assessed Mr Tewaka, he presented in a reasonably stable and thoughtful manner, appeared to be genuinely disappointed in himself, assumed responsibility for his offending and expressing a desire to rehabilitate and improve himself with professional assistance.
‘In my opinion, at the time I assessed Mr Tewaka, he understood the ordinary meaning of ‘right and wrong’ and he was able to competently negotiate his legal matters.
‘Psychological State at Time of Offences (14/09/19 & 01/10/19):
‘In my opinion, at the time of the offences, Mr Tewaka was suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorders:
POST-TRAUMATIC STRESS DISORDER (CPTSD)
POLY-SUBSTANCE DEPENDENCE DISORDER (PSDD)’
48There are other problems with the quality of Mr McKinnon's report. For example, his statement at the top of p8:
'However, at the time I assessed Mr Tewaka he appeared to genuinely want to make rehabilitative progress and re-establish the law-abiding and productive lifestyle he followed through most of his 20s.'
49That statement bears little consistency, in my opinion, with one of the few documents to which Mr McKinnon actually referred, namely the Victoria Police criminal history report, which shows you were far from law-abiding in 'most of' of your 20s’. Indeed as I pointed out earlier, there were a number of offences of different kinds committed by you during your 20s.
50However, the fundamental flaw in Mr McKinnon's reasoning is the total absence of any qualitative exploration of the possibility of a genuine causal link between the diagnosed mental illnesses and your actual state of mind at the time of the carjacking.
51There is no evidence that Mr McKinnon discussed the details of, or motivations for, the offending on 14 September 2019 with you at all. In the absence of such investigation and analysis, I am unable to find that the opportunism inherent in your carjacking offence supports the asserted causal link Mr McKinnon claimed to exist between the offending and your mental illnesses.
52And that is particularly in circumstances where you were so obviously the aggressor against vulnerable soft targets, where you initiated the offence of carjacking under no threat from your victims or anyone in the vicinity and where the symptoms of your PTSD as described at p7 of Mr McKinnon's report were:
'Flashbacks, rumination, intrusive thoughts, anxiety, depression, anger and frustration problems, sensitivity to environment cues and triggers, nightmares, chronic interpersonal relationship difficulties, paranoia and mistrust - particularly of authorities, general adult adjustment difficulties and substance abuse.'
53The final so-called symptom, substance abuse, may have emboldened you to engage in the carjacking and the dangerous driving, but I am not persuaded that the origins of your substance abuse, said to be founded in obviously misguided 'self-medication' arising from the origins of your PTSD when you were aged 12, can be so linked to your PTSD as to enliven Verdins principles, reducing your moral culpability for those offences.
54By the time of your offending you had, earlier in your offending career, been offered the benefits of community-based orders and an intensive correction order aimed at assisting you to address your substance abuse. You spurned those opportunities. You must have been, by September 2019, acutely aware that your continuing use of drugs such as methylamphetamine was not 'self-medication' - it was a serious blight on your life and your health. The cost of such 'medication' alone could never have compared rationally and favourably with counselling or prescription medication available through a general practitioner and which could be much more effectively targeted at improving your mood and mental health.
55Again, Mr McKinnon fails to provide a logical argument for treating your substance abuse, resumed after your release in 2018, as mitigation on any basis. As to Verdins principle 5, Mr McKinnon's report assessed your PTSD as, 'Currently manifested at a mild/residual level' and your PSDD as, 'Currently in remission.' It therefore provides no support for the enlivenment of principle 5. I therefore reject the submission that Verdins principles should be applied in mitigation of sentence.
56That is not to say the evidence of your mental conditions is irrelevant. I take it into account as part of the overall circumstances. I accept that you have had a difficult start to life and that you have had to battle against adverse mental and emotional consequences. I also accept that you have used your time in custody to achieve good physical health and that you have been planning for future business ventures with which to sustain your rehabilitation.
57Your criminal record suggests I should be guarded about your prospects of rehabilitation and I do not take it that Mr Desmond argued otherwise. Your criminal record is substantial; however you have pleaded guilty to each offence and you have indicated those pleas at an early opportunity. In these COVID times you are entitled to receive a substantial and perceptible reduction in sentence for that reason and for the more stringent conditions of your incarceration.
58You are still young enough to change your life upon release. You have shown that you are capable of a sustained period of regular paid work and I do not regard your prospects of rehabilitation as beyond your ability. Much will depend on your resolve once you complete your term of incarceration.
59I invited both counsel to provide me with assistance as to current sentencing practice for offences of carjacking and I thank them both for doing so. I found the decision of the Court of Appeal in DPP v Leishman [2019] VSCA 270 particularly instructive.
60You have a bad criminal record for offences involving violence or threatened violence. Despite serving a lengthy period of incarceration between September 2013 and October 2018, you are not deterred from committing these offences.
61Whilst it is possible to imagine worse cases of carjacking simpliciter, I regard this as a serious example of that crime. There is little mitigation in the fact the offence was opportunistic rather than pre-planned; indeed it is to be expected that most such offences will fall into that same category.
62But the victims were elderly and vulnerable and the fact that you pushed the male victim to the ground aggravates the offending. Such people are entitled to feel safe leaving their own homes in their own motor vehicles.
63Yours was the conduct of a bully, determined to use your relative youth, size and greater strength to gratify your selfish desires with callous disregard for the effect on your victims.
64As well as denunciation, the offence of carjacking requires the sentencing principle of general deterrence to be given considerable weight. The maximum penalty for the offence is imprisonment for 15 years. Your criminal record and your apparent inability to learn from your past experiences and control your impulses also requires proper weight to be given to individual deterrence and protection of the community.
65The offence of driving in a manner dangerous was brief but serious, and could have resulted in personal injury.
66The offence of possessing a drug of dependence is consistent with your personal use and I treat it as such.
67Balancing all those factors together, I am ready to impose sentence and I do so as follows:
68On Charge 1 of carjacking, you are convicted and sentenced to three years and eight months' imprisonment.
69On Charge 2 of possessing a drug of dependence, you are convicted and sentenced to one month's imprisonment.
70On summary Charge 1 of driving in a manner dangerous, you are convicted and sentenced to four months' imprisonment.
71Charge 1 on the indictment is the base sentence
72I direct that one month of the sentence imposed on the summary charge of driving in a manner dangerous be served cumulatively upon the sentence imposed on Charge 1. The sentences are otherwise concurrent.
73The total effective sentence is therefore three years and nine months' imprisonment.
74I order that you serve a minimum of two years and six months' imprisonment before being eligible for parole.
75Pursuant to s18(4) of the Sentencing Act Victoria I declare that the period of 722 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
76Pursuant to s6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of five years and six months' imprisonment with a non-parole period of three years and nine months.
77I note that the related summary offence of driving in a manner dangerous requires me, under s64(2) of the Road Safety Act, to impose a period of disqualification or to cancel your licence and disqualify you from obtaining a licence and I therefore cancel any driver's licence you hold and disqualify you from obtaining another for a period of 12 months effective from today.
78At the plea hearing the Crown sought an order for the disposal of the drugs, the subject of Charge 2 on the indictment, to which you consented, and I have made that order today.
79Are there any other matters, counsel?
80MS FARRELL: No, Your Honour.
81HIS HONOUR: Thank you.
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