Director of Public Prosecutions v Tewhare
[2017] VCC 1827
•8 December 2017
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM AND MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON TEWHARE |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Horsham and Melbourne | |
DATE OF HEARING: | 8 December 2017 | |
DATE OF SENTENCE: | 8 December 2017 | |
CASE MAY BE CITED AS: | DPP v Tewhare | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1827 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of Guilty – Aggravated burglary – Common law assault – Criminal damage
Legislation Cited: Sentencing Act 1991
Sentence: 4 years 3 months imprisonment with a non-parole period of 2 years imprisonment; 21 days pre-sentence detention; Section 6AAA declaration: 7 years imprisonment with a non-parole period of 5 years’ imprisonment; Compensation order; Disposal order; 464ZF order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hevey | Office of Public Prosecutions |
| For the Accused | Mr S. Belcher (Solicitor advocate) |
HIS HONOUR:
1 Tyson Tewhare, on 3 October 2017 you pleaded guilty to an indictment containing four charges, being: aggravated burglary (Charge 1); common law assault (Charges 2 and 3); and criminal damage (Charge 4).
2 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening. In summary, at 8.15am on Sunday 28 August 2016, you and as many as five others attended at the residential address of your victims, Zachary Richards and his mother Terri Quinn. Quinn was aged 56 at the time of your offending, whilst Richards was aged twenty-three.
3 Richards woke up to banging on the front door. He then heard a male say, “Smash the car up”. You and your co-offenders began smashing a red Ford sedan parked in the driveway and belonging to Ms Quinn (Charge 4). Richards opened the front door and saw a female standing at the bottom of the stairs. The female said, “He’s in there” and Richards slammed the door and went to wake his mother. You broke the glass door to the house and you and your co-offenders entered the house through the front door (Charge 1).
4 Quinn attempted to call police but one of your co-offenders snatched her phone from her. You and your co‑offenders forced the victims into the toilet area at the end of the hall. You and your co‑offenders tried to push Quinn out of the way so that you could get to Richards. You stood in front of Quinn and said that you were going to kill both of them because Richards had hit your baby. You were referring to your niece, Ms Clarke, Richards’ ex-partner. You told Richards, “Fuck with my niece and this is what happens to you.”
5 You and others repeatedly tried to hit Richards but Quinn was in the way. You punched Richards in the head, nose and mouth. One of your co‑offenders struck Richards on the back of the head with a beer bottle. That co‑offender dropped the bottle and left the fray momentarily to return with a knife. Another of your co‑offenders struck Richards repeatedly during this time. One of your co‑offenders repeatedly tried to stab Richards with you standing in front of Quinn and yelling, “Stick the cunt”. Fortunately, Richards ended up with only a minor laceration to one of this thumbs.
6 During the continuing assault, whilst your victims were hiding in the toilet, you punched a hole through the toilet door, although irregular in shape it was probably a hole in the order of half a square metre and you started poking a broom handle through it (Charges 3 and 4).
7 All of your group, save you, left the premises prior to the police arriving, the police having been called by frightened neighbours. You were arrested at the scene.
8 One of the occupants of a neighbouring house stated that at least half a dozen male Kiwis were kicking the red car. This person observed the males go into the house and heard smashing glass and thudding noises coming from the house. This person believed that you and your co‑offenders were in the house for a period of 10 to 15 minutes before your co‑offenders left in a white sedan.
9 Another neighbour saw a knife or screwdriver being thrown away as one of your co‑offenders left the scene. Police later located a knife in the area identified by the neighbour.
10 This incident appears to have its genesis in your mother, Mary Tewhare, having attended at Richards’ home alleging against him that he had assaulted her grand-daughter, your niece Ms Clarke. She called Richards a junkie crack cunt and stated, “I'll be back with my boys”. This incident was reported to police and an intervention order was put in place in respect of Mary Tewhare.
11 Richards received a 3 centimetre cut to his left thumb, a lump to his head and some further chipping of his teeth. Quinn suffered a cut and bruise to her left hand, a red mark on her right arm and soreness to her back and neck. Photographs of the scene and of the victims form part of the depositions.
12 After your arrest you were interviewed under caution and in summary you said that this incident came about in circumstances where the previous evening you had drunk to excess and having gone to bed very late in the morning, woke at about 8 a.m. and together with others decided to attend at the Richards address. You told police that you “Just wanted to hurt him” and “I suppose just make him, yeah, hurt … for what he’d done to my niece. I just wanted him to see what it was like to suffer I think.” You maintained that you acted alone and that you were dropped off at Richards’ home by others.
13 At the time of the offending you were 27 years of age and you are currently 28 years of age and without prior conviction. You entered your pleas of guilty at the earliest opportunity.
14 The maximum penalty for aggravated burglary is 25 years’ imprisonment, whilst the maximum penalty for common law assault is 5 years’ imprisonment and damaging property, 10 years’ imprisonment.
15 Tendered as Exhibit B were the Victim Impact Statements of Mr Richards and Ms Quinn. Each of the victims were forced from their home and moved to live elsewhere. They each suffer from various levels of anxiety as a result of your conduct. Each suffer from sleep disturbance. Each fear that they will be attacked again.
16 You are 28 years of age and without prior conviction. You are married but separated from your wife and four children aged seven, four, three and one. Your estranged wife cares for your children and you have contact with them and have no issues with your estranged wife. You enjoy the full support of your parents, Peter and Mary, who were present at Court throughout each of your various plea hearings.
17 Your parents came to Australia in 2004 and settled in Ararat. You followed your parents to Australia in 2008. Your father is aged 60 years and works as a sandblaster and is a devout member of the Jehovah’s Witness Church. Your mother is aged in her mid-fifties and works in the local abattoirs. You have a number of siblings; a sister aged 34; a brother aged 33; another brother aged 25; and a younger sister aged sixteen. It is the daughter of your older sister who you sought to protect by your vigilante behaviour. At the time of the initial plea hearing your niece had left Australia and returned to New Zealand. However, by the time of the last plea hearing, which was conducted on Friday, 17 November 2017, she had returned to Australia and made a statement to police concerning Mr Richards’ conduct towards her during her relationship with him; this statement is Exhibit 6 on the plea.
18 You were educated to the age of 16 years and have worked ever since. You have always involved yourself in sport. You had no significant difficulties at school and have no difficulties with alcohol or drug abuse.
19 On leaving school, you worked as a forestry worker for approximately six months and thereafter worked in garden maintenance. You have worked as a furniture removalist and also with your father in his concreting business. On arrival in Australia you worked in the abattoirs in Ararat and thereafter for a period of three years prior to your offending, you worked as a diamond driller in Heathcote for Star West Contracting. In addition, you have a heavy truck licence. Tendered as Exhibit 2 on the plea were references from Star West Pty Ltd and your present employer, Andrew Lette of AKL where you work in the Portland area operating heavy machinery harvesting timber. Each of your referees wrote of your commitment to hard work and your value to the work teams that you worked in at each of those places of employment.
20 Tendered as Exhibit 3 were references from your mother and Ms Levy. A recurring theme in both references is that you are a hard-working person who is very protective of his family. It is the last characteristic which has brought you undone.
21 The hearing of 3 October 2017 was adjourned to 16 October 2017 so you’re your referees could be called to give evidence on your behalf. You were bailed to 16 October 2017.
22 On 16 October 2017, Mr Andrew Lette, the principal in AKL, was called to give evidence in support of you. He described you as a very good employee. He said it amazed him as to “why we are here today”. You obtained work with AKL as a result of one of your brothers recommending you to Mr Lette, he having worked for AKL for some 18 months.
23 When you applied for work with Mr Lette you told him you were in trouble with the police and prior to giving his evidence Mr Lette had read the Crown opening. He described you as an excellent employee. You work 4 ½ to 5 days per week, 14 hours per day, averaging some 65 to 70 hours of work per week. Mr Lette employs your two brothers. In the period of time that he has employed you, he describes you as a very modest drinker, having observed you at his company’s social events. Further, he said, that he has had you and your brothers to his home for barbecues and the like, that he has a teenage daughter and has absolutely no concern in respect of your conduct whilst at his home.
24 Your line supervisor was also called in support of you. He has been employed by Mr Lette for a period of three years. He met you through your brother who, as previously mentioned, had worked for Mr Lette for some months prior to your engagement by him. As part of the employment process, he interviewed you and you told him that you were in trouble with the police but you did not go into detail. He said he had no concerns about you in the workplace and it was common ground that you were, like the other employees who operated heavy machinery, randomly tested for the presence of alcohol and drugs in your body and you have always tested negative. He said that he has socialised with you and has gone fishing with you and that you have been a moderate drinker on all occasions.
25 Mr Belcher, solicitor, who appeared on your behalf, sought that the plea be further adjourned so that a report might be obtained from Mr Ian Joblin, psychologist. The matter was adjourned to 17 November 2017 at Melbourne. Tendered as Exhibit 4 on the plea was a report of Mr Ian Joblin dated 20 October 2017. Mr Joblin in the normal course took a history from you, to which I will return. However, his clinical assessment of you was:
“I am not of the opinion that there is evidence of any psychological diagnosable abnormality. Mr Te Whare is a man of reasonable intellect. While not superior in intelligence, he is also not to be considered defective. He is not psychotic and the offences do not represent symptoms of a personality disorder.”
26 Accordingly you are an appropriate vehicle for the application of general deterrence.
27 As part of the narrative that you provided Mr Joblin, you told him that you were unaware of the alleged abuse of your niece by Mr Richards until shortly prior to the instant offending. Further, that you did not know Mr Richards and had never had any previous dealings with him. You began hearing rumours regarding abuse of your niece by Mr Richards some time prior to and whilst at the hotel the night before your offending and you acted on those rumours.
28 Tendered as Exhibit 6 was a statement made by your niece to police at the Ararat Police Station on 17 November 2017 at 8.31 am. Apparently your niece has returned to Australia from New Zealand. Whilst the document is full of allegations in respect of Mr Richards’ conduct towards Ms Clarke, by your own admission to the police whilst interviewed under caution and to Mr Joblin when interviewed, you were entirely ignorant of any actual abuse by Mr Richards of your niece and acted simply on rumour whilst adversely affected by alcohol.
29 Tendered as Exhibit 5 on 17 November 2017 was your handwritten apology to Mr Richards and Ms Quinn.
30 At the initial hearing of the plea, Mr Belcher, solicitor, on your behalf acknowledged that an immediate term of imprisonment was the only appropriate disposition in all the circumstances. However, as the plea developed over time, he submitted that a Community Correction Order was the appropriate disposition in your case. (See further sentence submissions relied upon by Mr Belcher on 17 November 2017.)
31 In summary, he relied upon your family history which he regarded as relevant to the aggravated burglary. That you had no history of alcohol or drug abuse. That you had a very solid employment history. That you were a keen sportsman. That you saw yourself as responsible for your niece and he relied upon Mr Joblin’s description of your offending as “a crime of passion”. Mr Belcher acknowledged that whilst alcohol played a role in your offending, it was uncertain or “vexed” as to what role it played. Further, he relied upon your history as a hard worker, that you had no prior criminal history, that you suffered from no antisocial personality disorders and that you have no predisposition towards violence.
32 However, during the course of argument Mr Belcher acknowledged that in accordance with authority, it was inevitable that an immediate term of imprisonment must be imposed upon you.
33 You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you from that plea; namely, that it is evidence of your remorse, which I accept, and that it has utilitarian benefit. You are man without prior conviction. You are hard-working man who has demonstrated to at least two employers that you are a reliable and positive contributor to their workforce. In your present position, you are subject to random alcohol and drug tests which have always proved negative. You operate heavy machinery in dangerous conditions and have never been a concern to your employer or your online supervisor. You are a moderate drinker. You have never abused illicit drugs. Your prospects for rehabilitation are excellent.
34 However, on 28 August 2016, acting merely on rumour and whilst adversely affected by alcohol, in broad daylight, you attended at your victim’s home and entered it intending to assault him. You did so in company. You assaulted both Mr Richards and his middle-aged mother, Ms Quinn. Prior to your entry into Mr Richards’ home you and your co‑offenders wantonly damaged a motor vehicle owned by Ms Quinn, a person who was not the subject of your revenge.
35 During your interview under caution, you admitted that you wanted to hurt your victim. You are an appropriate vehicle for the application of the sentencing principle of general deterrence.
36 Your offending was a serious example of a confrontational aggravated burglary.
37 Would you please stand up. Taking into account the circumstances of your offending and its effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
38 On Charge 1 – 4 years’ imprisonment;
39 On Charge 2 – 6 months’ imprisonment;
40 On Charge 3 – 6 months’ imprisonment; and
41 On Charge 4 – 9 months’ imprisonment.
42 I order that 3 months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 1. This results in a total effective sentence of 4 years and 3 months’ imprisonment and I order that you serve 2 years’ imprisonment before you will become eligible for parole.
43 I declare that you have spent 21 days by way of pre‑sentence detention.
44 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment.
45 Will you please be seated.
46 The Crown have made a number of applications for various orders, the first being an order in respect to compensation, and I have made that order and hand down three copies.
47 Secondly, the Crown have made application for a disposal order in respect to articles seized by the police during the course of their investigation, and I hand down three copies of that order.
48 Finally, the Crown have made application for what is known as a forensic procedure; that is, a taking of a scraping from your mouth or what is known as a buccal swab. I have granted that order because the seriousness of the circumstances of the offending warrant the order, and the granting of the order is in the public interest. I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. And I hand down three copies of that order.
49 Are there any other matters that need to be attended to?
50 COUNSEL: No, thank you, Your Honour.
51 HIS HONOUR: Remove the prisoner, please.
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