Director of Public Prosecutions v Tomamichel

[2017] VCC 231

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00680

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYN ALEXANDRER TOMAMICHEL
DANE VICTOR TOMAMICHEL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 March 2017
CASE MAY BE CITED AS:	DPP v Tomamichel
MEDIUM NEUTRAL CITATION:	[2017] VCC 231

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Taylor
For Accused Tomamichel	Mr T Sullivan
For Accused Tomamichel	Ms K Russell

HIS HONOUR: 

1Bryn Alexander Tomamichel, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury recklessly, one charge of common assault and one charge of damaging property.  Those crimes carry maximum penalties of 25 years, 5 years, 5 years and 10 years respectively.

2You, Dane Victor Tomamichel, have pleaded guilty to one charge of aggravated burglary, one charge of causing injury recklessly, one charge of common assault, one charge of damaging property and one uplifted summary matter of failing to store a firearm correctly.

3Firstly, pursuant to s.464 of the Crimes Act, I make an order that each of you provide a saliva sample for DNA purposes.  That order having been made, I must advise that should you refuse to provide police with such a sample, they may use reasonable force to take it from you.  Those orders are handed down.

4You were 21 years of age at the time of the offending and 24 years of age.  Each of you has pleaded guilty at a reasonably early opportunity and I accept that the plea of guilty in respect of each of you is accompanied by appropriate remorse and there has clearly been a great deal of utilitarian benefit from it.

5There has a been a delay in the way in which the matter has been conducted which is of, really, the fault of nobody.  I take that delay into account and it should also be recognised that the delay has assisted each of you in that much mitigatory material has come to light and during the course of that period, as I understand it, neither of you has re-offended.

6You are both clearly still young men and you, Bryn, as I will call you for the purpose of this proceeding, were only a year away from youth justice.  Each of you has an intellectual deficit as registered with intellectual disability people.  I take that very much into account and it has been the basis of the plea of mitigation, really, on your behalf.

7I should also point out you, Dane, have no prior convictions.  You, Bryn, do have a number including one of criminal damage and clearly problems with alcohol and drugs.  This offending is clearly related to alcohol but drugs would appear to play no part in it.

8The amended summary of the prosecution opening points out that you, Bryn, were born on 7 April 1994; you, Dane, on 14 April 1991.  The complainants in the matter, or victims, are Luke Dunstan and his partner Tarquin Peterchek.  They reside, or resided at, 29 Vernon Street in Ultima and lived at the address with their four children and Ms Peterchek's father and his partner.  They were all present at the time of the offending and also present at the time of the offending was another family  member and her partner who were visiting from Melbourne.

9You, Bryn, were known to the complainants and had been to their house on previous occasions.  At the time of the offending, you were residing in Dillon Street in Ultima, with your father, which is approximately 300 metres away from the address in Vernon Street.

10So that there is an understanding of the context in which all this took place, I propose at this point in time to relate the family history as outlined by Mr Joblin in a report provided on your behalf, Bryn, as to the circumstances in which the two of you found yourself.

11Mr Joblin reports that with regard to the family history, said that "family farm was a large one, involving sheep and wheat which had been in the family for three generations as indicated above". Reported that the family lived in a house in Ultima and your father would travel daily to the various sheds on the farm and work.  Problems developed as result of the drought and the farm had to be sold in 2012.  This became an issue of very serious concern for your father; that became very apparent at the time of the interview with Mr Joblin.

12It would seem that your father should have been medicated but was not. 
In any event, the farm was sold.  Your father could not attend the clearing sale because of the emotion involved and then had to leave the farm.  The family home in Ultima was sold and you subsequently moved to Marong where you are currently working as a shearer - that is Bryn.

13Your father indicated to Mr Joblin he is currently in the process of declaring bankruptcy.  It seems, to Mr Joblin, that your mother has similar difficulties in her business enterprises and they were sold through liquidators about two years ago.  Your mother applied for a number of jobs and eventually able to secure a position in a shop at Bendigo.  The property was then sold in Ultima and, as I said, you moved to Marong.

14You, young Mr Tomamichel, indicated that you were witness to the deterioration in your parents mental state over a period of time because of the problems with the farm and the businesses, and I accept it caused each of you significant distress.  You each have a very strong sense of loyalty to your family, particularly to your father and it was distressing for both you to hear that your father had contemplated suicide as a result of the loss of the family farm. 
Mr Joblin pointed out that has not been an uncommon circumstance in recent times.

15In any event the farm was sold in around 2015, the businesses had been sold by then and the utility motor vehicle owned by your father had been repossessed.  It seems at the time of this offending, your father did not have a ute.  Your father had heard about the availability of a vehicle for purchase from an itinerant who was living at a local hotel.  He went to the hotel and in his belief purchased a vehicle and had the appropriate transfer papers prepared the following week.

16It seems then that, truthfully or not, it is not really the point, that the owner of the vehicle was told by others that your father did not want the vehicle and he could make other arrangements.  That apparently was not the case at all and the vehicle was sold.  This offending occurred in the context of that family loyalty and in particular to your father.

17It is clear that there had been a significant deterioration in the circumstances of the family over a period of time and in one sense though, it no way justifies it as I will explain in a moment.  This was, to each of you, something of a last straw.  It also appears clear from the materials before me that there has been something of a family history of depression and you, Dane, have been diagnosed with it in recent times.

18It is in that background that each of you, intoxicated, attended at the house.  Approximately one week prior to the offences, Mr Werner Peterchek had purchased the twin-cab utility for $550.  I am not going to go into the detail of all that, it is your state of mind that matters, not what the reality might necessarily have been.  Clearly your father believed that he had an agreement to buy it.

19In any event on Saturday 3 October, both you had been drinking and you, Bryn, arranged to pick up you, Dane, and bring you to the house.  While in the car, the two of you discussed what had happened regarding the purchase of the vehicle.  You both arrived at Dillion Street in Ultima and continued to drink alcohol and discuss the situation.  You both decided you were going to Peterchek's house to sort it out.

20At approximately 1.40 am on the Sunday morning, each of you armed with a cricket bat, walked to Vernon Street.  Once at the address, you placed your crickets bats against a fence before going to the back door and knocked on the door.  One Dylan Peterchek answered.

21You, Bryn, introduced Dylan to your brother and said that you were there to sort some stuff out and asked Dylan to go and wake up his pop.  Both you saying to Dylan that you wanted his pop and dad to come down to the pub to sort things out.

22You, Dane, told Bryn to wait at the address and left.  Bryn stayed at the back door talking with Dylan for about five minutes and then left.  Dylan Peterchek went to his father's room, that is Luke Dunstan, and told him what had happened.  He then went out the back door in the back courtyard area to see if you two were still there.  He did not see you and so went back into the house through the back door, closing it behind him.  As he was about to walk to his mother's room, he heard the backdoor open and he saw you, Dane, come into the house with a cricket bat and start to chase him.  He entered his mother's room and shut the door.

23Luke Dunstan was in the kitchen when you, Dane, entered the house.  He saw you go down the hallway and ran after you.  You then turned around and walked quickly back up the hallway towards him, still holding the cricket bat and yelling threats either to kill or assault the family.

24Mr Dunstan then grabbed you, Dane, by the arms however you broke free and directed your anger towards Mr Werner Peterchek.  Mr Dunstan grabbed you, Dane, by the arms again from behind and started to drag you back down the hallways towards the family.  You fell over onto the floor and you, Bryn, struck Mr Dunstan to the head with a cricket bat that were you holding.  It caused a laceration to his head which immediately started to bleed.

25You, Dane, then turned on Tarquin Peterchek got right into her face, swinging the cricket bat and threatening to hit her with it.  You yelled "Let me past, I want to kill that dog cunt" and eventually pushed your way past where you confronted Mr Peterchek who is now out of his room.  Ended up in another struggle and
Mr Peterchek was struck to the face with a fist.

26Once outside, bizarrely enough, you, Dane, offered to take Mr Dunstan to the hospital.  On the way out you, Dane, hit a silver Commodore which was parked in the driveway with a cricket bat causing damage to it and that is the charge that results in the criminal damage.  You then ended up in another argument with the family before Mr Dunstan was taken to neighbours house with at least you, Dane, present when that occurred as I understand it and he was then conveyed to the Swan Hill hospital for treatment.

27He received a large bruise on the right side of his vertex, two lacerations each approximately 3 cm in length with an underlying haemotoma which required suturing.  Tarquin Peterchek received a large bruise to the upper inner side of her left arm.

28At 7:45 am on 4 October you, Dane, were located by police asleep and they also found firearms in your ute.  I put no real significance on that and it is not asserted that there is anything sinister about that at all.

29At approximately 9 o'clock on 4 October you, Bryn, made a phone call to your brother Dane's phone.  The phone was in police possession at the time and was answered by the police who spoke with you.  They requested you attend the Swan Hill Police Station, you both did and made, certainly at least partial admissions to the vehicle and each of you expressed remorse and I have indicated, I accept appropriate remorse.

30There was then some question as to how the matter would proceed as there was legal arguments about whether or not you were trespassers but in any event, the matter had ultimately settled and I will give the benefit of that plea of guilty and I am describing it as a reasonably early opportunity.

31I have, before me, the victim impact statements.  This is serious offending and calls very much for the application of general deterrence.  So far as specific deterrence are concerned, I accept that you probably both have learnt your lesson to a certain extent and of course, accordingly, it does not pay.  I do not have to give as much attention as I might otherwise.

32It is a crime where the two of you went into a family home with children present and in an extremely loud, terrifying and violent way took out your frustrations.  It clearly calls for denunciation and there must be an appropriate punishment.

33The victim impact statements, as I have indicated I have read, conveyed very clearly the fear and on-going psychological damage that offending of this sort causes and the Court of Appeal in recent times has a made a number of pronouncements about how home invasions for the intention of inflicting violence have to be regarded as matters of which in the normal course of events would call for a custodial sentence.

34As the plea unfolded, it became clear that each of you had an intellectual disability and ultimately reports were obtained , community corrections order assessments were obtained which found you suitable and justice plans were obtained.

35It then became, as indicated to counsel this morning, the question as whether of the seriousness of this offending, and it is indeed serious, was such that it would be appelable error not to impose an element of active custody in this.  As I indicated to counsel, I take the view that bearing in mind the factors enunciated on your behalf that a combination order was within range.  Each of your counsel submitted that a community corrections order by itself would be sufficient. 

36I am well aware of the comments by the Court of Appeal in the cases of such as Tomguenon and Leech insofar as mercy is concerned and also the benefit for the community in turning around a young offender; for benefit not only to the offender but to the community.  But I am also, obviously, very much aware of what has been said in Boulton and I am also very much aware of what has been said in Muldrock in terms of people and particularly young people with intellectual disabilities and I am fully aware also that you do not get the discount twice - it is Muldrock or Verdins, not both.

37It then becomes a question as to whether, in my view, a CCO could be described as sufficient punishment.  I am not going to go into great detail and I have outline the family history in short compass.  Insofar as each of you are concerned it is clear that each of you has had disability, and as I understand it an older brother has a not dissimilar disability.

38You, Bryn, have had difficulties basically since birth.  I am not going to outline all the material that I have.  I have taken it all into account and read it all and it is all on the court file.  You had problems with impulse control, emotional regulation and sustaining attentional focus in an appropriate way. You have said you think you have secondary learning impairments.  You were commenced on short acting Ritalin when you were about eight years old and a diagnosis of severe attention deficient hyper-activity disorder was made. The Ritalin enabled you to at least remain calm enough to tolerate a bus trip to school. 

39As an adolescent, your ADHD was confirmed.  You were later put on a long-acting form of Ritalin.  Effective schooling was impossible for you due to your profound attentional impairment.  It is clearly pointed in the report that I have received that a person with your degree of ADHD really cannot learn in a classroom situation.  You left school in the middle of year nine.  You have since that time self-medicated with illicit substances and I do not take the view they play any part in this but what has been involved is the overuse of alcohol.  It was found by Mr Wood who that initial report was from that because of your inability, or your incapacity to sustain attention, to was very difficult to assess your IQ.

40A further report from Dr Wearne, who was your consultant paediatrician, said back in 2010 that there is also a form of mild autism.  He pointed out that you have poor verbal comprehension, limited social skills and empathy towards others.

41I then had a report produced by the Department of Justice and it is clear that, and you have accepted as having had been for some period of time, an intellectual disability that clearly has had a long-term effect on your capacity to function in the community and in the Muldrock sense reduces moral culpability and I take it very much into account.

42You have not offended since which is somewhat comforting in a situation such as this and this has been pointed out as to be hoped that time that has elapsed since this offending occurred has caused you to realise that such conduct, if repeated in the future, would attract a very long jail sentence indeed.

43The prospects of your rehabilitation are really up to you I think.  The risk of you reoffending, if you rehabilitate, should not be high but again that is often difficult to know.  I do not think I need to go through the report of Mr Joblin in any greater detail.  He outlines the mental health issues, full-scale IQ of 60 and he just simply refers to the reports that have been previously prepared and that your mental state and mental condition are an important matter in determining what sentence should be imposed in this situation.

44Each of you has had partners over a period of time.  You, Dane, left school again at around about the same time as your brother.  Each of you, clearly, when able to has a good work ethic and has worked diligently.  You, Dane, have no prior convictions.

45I then go through the material relating to you, and I have already indicated some of that, that you had in the end difficulty with your father because of his depression.  That you were at the time of this offending, were working vigorously and indeed such as that had two jobs.  You have a partner who has taken all of this very badly and that can only be regarded as unfortunate.  In circumstances where you have no priors and a good work ethic and appropriate remorse, it is very difficult indeed to make the decision that someone has to be incarcerated.  You have been diagnosed with depression some time ago and treated for that.

46When you were spoken to by Mr Simmons, you were able to outline the history of your drinking which had highly problematic and I accept for both of you that on this occasion you were each very intoxicated.  Unfortunately, that cannot mitigate the situation at all.  You, Dane, were able to describe your schooling to Mr Simmons and it is from you that the detail about the family history with depression and the like comes to light.  It is difficult where the matter has gone on for so long and you have both otherwise been worthwhile citizens of the community, albeit with difficulties in functioning and difficulties in socialising to impose a custodial sentence.

47It is your case that the prospects of rehabilitation and reoffending are, again, entirely up to you and you have clearly got yourself well on the path towards it and now have insight into the difficulties that you have had.  The Crown submission is that only an active custodial sentence would be appropriate and as I indicated the defence position is that a community corrections order for each of you would be sufficient.  I have taken all the matters into account as it stands and have come to a very difficult decision that nothing other than a combination sentence could satisfy the elements of general deterrence, punishment and denunciation for what was a very violent, very frightening home invasion. 

48I am imposing a term of imprisonment to followed by a community corrections order.  The community corrections order will be for a period of three years, and will if agreed to, and will commence upon your release from custody.  That would include the conditions of a justice plan, also testing for alcohol, mental health, supervision.  It is set, in each of your cases, it will be with conviction.  In terms of parity between you, you, Dane, have no prior convictions but you are a number of years older.  It seems to me that the use of the weaponry on people was essentially Bryn, but you are both involved in it and you are liable for what each other did.  You, Bryn, were more responsible for that and you have the prior convictions albeit you are younger and it would seem to me, looking at all this material, that your disabilities are more profound than those of your brother.  In the end, I cannot see any realistic way of differentiating between you and accordingly I will be passing the same the sentence on each.

49On the charges in relation to each and that incorporates the firearms charge, each of you are sentenced to be imprisoned for an aggregate period of nine months.  Upon completion of that you will be then, if you agree, be placed on a CCO for a period of three years with the conditions that I have described.

50There is no PSD, is there?

51MR RUSSELL:  No.

52HIS HONOUR:  No.

53MR RUSSELL:  As it pleases Your Honour.

54HIS HONOUR:  Yes, we have to get this signed first.

55MR SULLIVAN:  May I be excused, Your Honour?

56HIS HONOUR:  Yes, of course.  All right, those orders are made, signed.

57MR SULLIVAN:  As the court pleases.

58HIS HONOUR:  Yes, take them out, thank you.  Yes, just adjourn.

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