Director of Public Prosecutions v Tighe

[2019] VCC 1223

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00447

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY TIGHE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2019
DATE OF SENTENCE:	6 August 2019
CASE MAY BE CITED AS:	DPP v Tighe
MEDIUM NEUTRAL CITATION:	[2019] VCC 1223

REASONS FOR SENTENCE
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Subject: Aggravated burglary, common law assault
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Vella	OPP
For the Accused	Ms P. Smith	Dribbin & Brown

HER HONOUR:

1Rodney Tighe, you have pleaded guilty to one count of aggravated burglary, that being with an intention to assault and person present, and three counts of common law assault.  The maximum penalty for these offences is 25 years and 5 years respectively.

Circumstances of the offending

2In the early hours of Sunday, 14 October 2018 Jagdish Dhaliwal who is aged (21), Harwinder Grewal aged 19 and Sukhpal Uppal who was aged 20 were at home at Unit 5/10-12 New Street.  They were your neighbours.  You were living in another block of units 2 doors up in the same street.  Their front door was unlocked as they were expecting a visitor.

3At about 1.25 am you walked though their front door into their home.   Each of them saw you come in.  You walked towards Mr Grewal who was in the kitchen and threw a punch at his face with a closed fist.  Mr Grewal blocked the punch with his hand.

4Mr. Dhaliwal got up from the couch in the lounge and walked towards you – as he approached you, you threw a punch towards his face though he was able to block it with his arm.  You were then grabbed by Mr Dhaliwal and with the assistance of Mr Grewal you were pushed out of their home.  As they were pushing you, you pointed at all of them saying words to the effect of 'I’m going to kill you, you will all be gone. You will all be dead'. The victims were all scared and shocked about what had happened.

5When you left their home you kicked the door and walked down the driveway and crossed paths with their friend Nisarg Patel.  They then locked the door and called the police.

Investigation and arrest

6About an hour later you were arrested by police at your unit.  An interview was commenced though was suspended due to your level of intoxication.  When the interview re-commenced you admitted that you had gone to their unit but denied their account of the events of that night.

7In the course of the interview you complained that there were too many Indians living in the unit and that they make too much noise up until the early hours of the morning.  You complained that the police did nothing about them.  You told police that you went there to determine what they were up to alleging they were running what you described as a 'commercial boutique place of worship'.

8You maintained that you tapped on their door which was already open, went in and were immediately punched by up to  6 to 8 men.  You told police you went to their unit to assess why there were so many of them at the unit and why they had been yelling and swearing outside.  You maintained that you had been threatened by these Indian men to  bash you multiple times up until 4 am in the night.  You ultimately admitted that you were upset with them because you thought they were too noisy and you went over there to confront them about it.

Criminal History

9Your offending should be seen in the context of your criminal history.  Police had been aware of a history of problems between you and those residing at the unit.  In February 2018 you assaulted one of the victims in this matter.  The circumstances of that were at about 12am, you went to the same unit wielding a silver pole and an imitation handgun, and knocked on the window and yelled out that you would shoot them.   You were charged with two counts of unlawful assault and one count of being a non-prohibited person possessing a general category handgun.  On 11 September 2018 you were sentenced for this offending at Ringwood Magistrates' Court and given a 12 month Community Corrections Order with a non-conviction disposition.

Victim Impact Statements

10Each of the residents were advised that they could make a Victim Impact Statement but declined to do so.  It is clear that they each would have been scared by you going into their home in the early hours of the morning and aggressively approaching  them, punching one of them, trying to punch another and threatening all of them.

Personal Circumstances

11A report was tendered by Carla Lechner, Clinical Psychologist dated June 17, 2019 and I take that material into account.

12You are currently aged 53 and the youngest of 2 children.  Your mother is deceased, and your father is 81 years.  You have limited contact with your sister who resides in Brisbane, and no contact with your step siblings.  You were married for about 10 years and have 2 daughters from that union aged 17 and 14, you have some contact with your children mainly through phone as they also live in Queensland.

13You grew up in Wangaratta until the age of 12, and then moved to Bendigo after your mother died.  You completed Year 12 – you had a fractitious relationship with your father growing up, and you left home when you were 17, living with a teacher during Year 12.

14You completed a Bachelor of Business majoring in accounting at Swinburne University in Bendigo.  You have had various jobs in this field working at KMPG Chartered Accountants, TNT, Telstra, Royal Melbourne Hospital and Chubb Security for extended periods.  During your employment with Chubb your marriage broke down, and you consequently became extremely depressed and unreliable hence you lost your job.  Your relationship with your ex-wife has been bitter and acrimonious with subsequent financial loss which has had a detrimental impact on your employment prospects.  Despite these issues, you have been to maintain full time employment up until you were remanded, though you engaged in somewhat more menial tasks than your professional history reflects. 

15You have no issues with illicit drugs though alcohol abuse is a problem.  Quite clearly you were intoxicated at the time of this offending, with police not able to interview you when you were arrested due to your lack of sobriety.  Ms Lechner in her report expressed suspicion that you were not fully frank with her regarding your general level of alcohol intake.

16In discussing this offending with Ms Lechner you maintained the version of events that you gave in your record of interview with police.

17Although no formal assessment was undertaken she viewed you as of average intelligence.  After relevant assessments she opined:

You present with symptoms of Persistent Depressive Disorder (DSM 5), alcohol abuse problems, chronic insomnia and some paranoid, persecutory thinking patterns that may reflect an encapsulated delusion.  She recommended a psychiatric evaluation.  She said you view yourself as a vulnerable person in a threatening world.  That your offending seems to have occurred in the context of alcohol intoxication (mixed with Stilnox), which impacted adversely on your judgement, decision-making and capacity for impulse inhibition. 

18As is apparent from that excerpt from her report, and repeated a number of times during the course of it, clearly you require a psychiatric assessment – however your counsel informed me that you were not prepared to engage or undergo such an assessment, with you having difficulty acknowledging any such a problem exists or that you have such issues.

19As to treatment from a psychological perspective, Ms Lechner noted in addition to any recommendations from a psychiatrist, you need to address your alcohol abuse and underlying issues of grief and personal loss.  She notes:

The late onset of your  offending behaviour is unusual and seems to be more reflective of a decline in your mental health than a propensity for violent or aggressive behaviour.

20Your counsel highlighted the level of your intoxication at the time of this offending – though that does not excuse your behaviour it may provide some explanation.  Further, your counsel did not suggest that your moral culpability was reduced by virtue of you suffering some mental illness, recognising that VERDINS did not apply.   

21This is your first time in custody – you are rather isolated with no visitors or connections to people in Melbourne.  You have no accommodation or job for the first time in your life.  I was informed that you planned to move to Queensland where your family members reside on your release from custody.  You are using your time constructively whilst in custody and are involved in ground maintenance and have obtained a white card.  You have been encouraged to participate in alcohol related programs though you have difficulty accepting that you need such help.  You have already spent a significant time in custody – approximately nine and a half months.

Plea of guilty/remorse

22You pleaded guilty at the committal hearing on 6 March 2019 prior to witnesses being cross-examined.  Your plea has facilitated the course of justice and has a utilitarian benefit as no witnesses were required or Court time spent.  You have saved the community the cost of a trial.  The witnesses were spared the ordeal of giving evidence.  I accept your plea is indicative of some remorse.

Rehabilitation prospects

23Your counsel submitted that the following features augured well for your rehabilitation:

1.Your relatively old age for becoming involved in criminal activity;

2.Such coinciding with an increase in mental health symptoms and alcohol consumption

3.Your personal history including good employment record

4.You were complying with the CCO and had performed 30 hours of the community work

5.Your plea of guilty

6.Your plans to move to Queensland and re-engage with your family

7.The situational nature of the offending, that is that it is unlikely to occur again

24I accept there are some positive features though I am more guarded in my assessment of your rehabilitation prospects given the clear need for your issues to be addressed.

Aggravating features:

25There were some aggravating features of your offending.  It was what has been described as 'confrontational aggravated burglary'.

1.It occurred in the victim’s home at 1.30 am;

2.There was more than one victim;

3.You had acted in a similarly threatening manner to one of those residents in February, about 8 months earlier;

4.As a consequence of that February offending you were on a CCO imposed in September only weeks before this offending .

26I do accept that there were features of this offending not present that unfortunately are common with this type of offending – the victims did not suffer a significant injury, there was no property damage, the event was not protracted and the offending was not planned and was never likely to succeed.

27The prosecution provided me a table of 'like' cases for this kind of offending and I have taken them into account.  They are a helpful guide and assist with general sentencing principles but each case depends on its own facts.  

Sentencing submissions

28Your counsel submitted that I should impose a straight sentence, conceding that a term of imprisonment was the only sentencing option.  This, it was submitted would allow you to start afresh in Queensland.  The prosecution referred to general deterrence, protection of the community, denunciation and just punishment all of which I accept are relevant sentencing considerations.  The prosecution submitted that the only appropriate disposition was a term of imprisonment with a non-parole period.

29If you could please stand, Mr Tighe.

30Taking all relevant matters into account I sentence you as follows.

31In respect of Charge 1, the aggravated burglary, you are convicted and sentenced to 22 months' imprisonment.

32In respect of Charge 2, assault, you are convicted and sentenced to a term of 2 months' imprisonment.

33In respect of Charge 3, common assault, you are convicted and sentenced to a term of 2 months' imprisonment.

34In respect of Charge 4, common assault, you are convicted and sentenced to a term of one month imprisonment.

35One month of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 3 will be served cumulatively on the sentence imposed on Charge 1 leaving a total effective sentence of 24 months' imprisonment.

36I propose to set a non-parole period of 13 months prior to you being eligible for parole.

37Pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a term of imprisonment of 40 months with a non-parole period of 24 months or two years. 

38Did I make a forensic sample order the other day?  I did I think.

39MS SMITH:  I don't have a note of it, Your Honour.

40HER HONOUR:  What is the PSD today?

41MR VELLA:  296 days, Your Honour.

42MS SMITH:  That's agreed, Your Honour.

Pre-Sentence Detention

43HER HONOUR:  I declare pre-sentence detention of 296 days.

44Are there any other matters I need to deal with?

45MR VELLA:  No, Your Honour, I'll confer with my instructor and confirm - - -

46HER HONOUR:  Yes, and if that hasn't been done I understand it was consented to in any event.

47MS SMITH:  Yes, Your Honour.

48HER HONOUR:  Thank you.

- - -

49Ancillary Orders

50A forensic sample order will be sought pursuant to s 464ZF Crimes Act.

51Section 6AAA of the Sentencing Act 1991 applies.