Director of Public Prosecutions v Tozo
[2016] VCC 1179
•12 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00915
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICK TOZO |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 August 2016 |
| DATE OF SENTENCE: | 12 August 2016 |
| CASE MAY BE CITED AS: | DPP v Tozo |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1179 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Casey | OPP |
| For the Accused | Mr H. Rattray |
Pages 1 - 13
HIS HONOUR:
1Nick Tozo on this day you pleaded guilty to the following charges on Indictment Number G10475119.
2Charge 1, aggravated burglary at 25 Redan Street St Kilda on 23 January 2016. This offence has a maximum penalty of 25 years' imprisonment.
3Charge 2, theft. This charge has a maximum penalty of 10 years' imprisonment.
4Charge 3, handling stolen goods. This charge has a maximum penalty of 15 years' imprisonment.
5You have also pleaded guilty to a related summary charge transferred to this court pursuant to s.145 of the Criminal Procedure Act, that is summary charge number 6 which is possess cartridge ammunition without a licence. This charge has a maximum penalty of 40 penalty units.
CIRCUMSTANCES OF OFFENDING
6You committed the offences, the subject of Charge 1 and 2 on the Indictment with your 43‑year‑old co‑accused Angelo Bakomihalis. I sentenced Mr Bakomihalis for those offences on 2 June 2016.
7On 23 January 2016, you and your co‑accused, Bakomihalis attended at the Redan Apartments at 25 Redan Street, St Kilda. On that day, the victims in this case Tsubasa Orii, Riku Sato and Ayako Ishikawa were sharing a studio apartment within the complex. Ms Ishikawa had left the apartment and gone to the city, taking the only key to their apartment with her. The two men, Mr Orii and Mr Sato, remained in the apartment.
8At approximately 9.45 AM on that day, you and your co‑accused Bakomihalis drove to St Kilda in a white Toyota Yaris, registered No.1BQ4QH and parked nearby. You then walked to the Redan Apartments and attempted to enter the building via the front door, but found it was locked.
9You and Bakomihalis spoke to Kejun Wang, the manager of the Redan Apartments, when he arrived for work. After your brief conversation with Mr Wang he entered the building and went to work. You and Bakomihalis then walked away towards the car park gate and attempted to gain entry to the car park gates by entering random numbers into the keypad.
10When you were unable to access the car park. You then returned to the front door of the building with Bakomihalis. You then knocked on the front door and attempted to gain someone's attention. Bakomihalis walked back to the car park gate, leaving you at the front entrance of the building. Bakomihalis gained entry by taking advantage of a white van which was leaving the car park and entered the car park that way. You continued knocking on the front door until another resident came down the stairs, opened the door and let you in.
11You then wedged the door open in order to let Bakomihalis know that you had gained entry. Your various attempts to gain entry were captured on CCTV.
12You then walked up the stairs, followed by Bakomihalis. You were approached by the manager, Mr Wang, who asked you what we were doing. Each of you told him that you were there to see a friend, provided him with a false name before continuing on up the stairs. Upstairs, the two of you were seen by a witness knocking on several doors and entering several rooms as you made your way down the corridor.
13Ultimately, the two of you entered through the unlocked door of the apartment concerned. At the time, the room was occupied by Mr Sato and Mr Orii. Mr Sato was asleep in bed and Mr Orii was up sitting at his table having breakfast. Mr Sato woke up when you and Bakomihalis entered the apartment. You and Bakomihalis walked in and said "Hi." You have then walked over to the bedside table and took Mr Sato's two mobile phones. Mr Sato attempted to take his phones back, but noticed that you were holding a box cutter. You then took Mr Sato's red satchel bag from the kitchen area and put the mobile phones in that bag. You also picked up Mr Sato's laptop from the floor by the bedside and added that to the bag. You told the victims, Mr Sato and Mr Orii, not to raise their voices and not to call police and took another mobile phone, which was sitting on the floor. You kept asking Mr Sato where his wallet was. Mr Sato told you that you had already grabbed it.
14At the same time, Bakomihalis was holding a box cutter and was standing at the end of the bed, packing other items belonging to the victims into a separate bag. You asked the victim Sato if he had any “ice”, before going through Mr Sato's suitcase on the floor in the kitchen. You took a second wallet containing Mr Sato's Japanese driver's licence and a Medicare card, as well as Mr Sato and Mr Orii's Japanese passports. As the both of you were packing the victim's belongings into the bags, you each repeatedly told them to be quiet.
15Once the two of you had finished filling the bags, Bakomihalis waited by the front door for you, telling you to hurry up. You had then grabbed Mr Sato's black chrome backpack, containing personal travel documents. The both of you, were in the apartment for approximately ten minutes in total. When you left, you ran out of the victim’s property, down the stairs and left the building. You then got in the car and drove off.
16Both you and Bakomihalis have clearly planned to go to these premises and commit these offences. The two of you coordinated your entrance to this secure apartment complex. You entered the premises, armed with a box cutter as a weapon. You went there to steal, so as to finance your drug habit. In the process of your crime, you and your co‑accused stole the following property from the three victims:
17The property belonging to Mr Sato is as follows: A black Sony Xperia mobile phone, a white Samsung Galaxy phone, a black Sony VAIO laptop, a brown Prada wallet containing Mr Sato's personal cards, AUD $200, personal paperwork and photographs, a Japanese passport belonging to Mr Sato, a Sony MP3 player, a Casio ex‑word data plus (dictionary), a red satchel bag and a black Chrome backpack.
18The property belonging to Mr Orii that was stolen is as follows: A black wallet containing Mr Orii's personal cards, AUD $10, a Japanese passport belonging to Mr Orii, an iPad charger, a Wi‑Fi charger, a Kodak power bank (portable battery) and an Opal necklace on a gold‑coloured chain.
19The property belonging to Ms Ishikawa that was stolen is as follows: A National Australia Bank card holder containing a Japanese credit card, a large black bag, inflatable bed, four makeup bags containing feminine hygiene products and makeup, a portable battery and a battery cord, an Apple iPhone 6 and AUD $350. Some of the property was recovered from you at the time of your arrest by police and returned to the victims. Some was recovered from Bakomihalis
20That completes the summary of your offending in respect of Charge 1 and 2 on the Indictment.
21The offending for Charge 3 on the Indictment occurred on 15 February 2016. At the time of your arrest you were in effect living out of your car. The police found a stolen number plate RIA 697 in that car.
22The offending for summary Charge 6 was also committed on 15 February 2016 and is summarised as follows: At the time of your arrest after searching through your car the police found three .22 calibre cartridges of ammunition. You had no licence for that ammunition or firearms.
INTERVIEW & ARREST
23At approximately 2.10 am on 15 February 2016 you were spoken to by police on unrelated matters. You were arrested, interviewed and released. The Informant in this matter was advised of your arrest. Your car, a purple BMW was towed to St Kilda police station later that day. You rang to enquire about it and attended at the St Kilda police station that evening where you were arrested and interviewed in relation to this matter. Your interview was mostly no comment, however you denied knowing Angelo Bakomihalis.
24I will read from the summary but out for the context of your offending. Question 49 of the record of interview was as follows: "So him being scared, he's handed over his phones and then you've picked up another one off the floor while Angelo has started to pack up all their stuff, their laptops, passports---". Your answer: "Who is Angelo? This is the first time that I'm hearing any of these names".
25You were then shown still photographs from the CCTV footage from the apartment, including the photograph of yourself. Question 58: "Do you recognise anyone in the photo?" Answer: "No". Question 60: "I'll draw your attention to the male on my right, would be your left, in a white T‑shirt and ---". Answer: "Yeah." Question 61: "---shorts". Answer: "It looks like an ethnic fella." Question 62: "Yeah." Answer: "He looks pretty handsome to me."
26You made no comment when asked if the person looked like you. The interview was suspended for a search of your vehicle under warrant in your presence. The following items were seized:
1. A pair of black Nike shorts;
2. Vic road number plate RIA 697 (the subject of Charge 3 on the indictment);
3. Three .22 calibre ammunition (the subject of summary charge 6);
4. White Armani T‑shirt;
5. Pocket Wi-Fi.
27You were remanded in custody and released on bail the following day. At approximately 5.30 pm on 25 February 2016, you were found substance affected on the Mordialloc pier. You were searched by a Senior Constable Mitchell who located Mr Sato's Japanese passport in the back pocket of your shorts. You were arrested and transported to Mordialloc police station for interview. Your interview was mostly no comment again. You claimed to be a Koori and indicated that you would like to reserve your rights as the natural owners of these lands. You mostly made no comment.
28You were asked about Mr Sato's passport. Question 94 went as follows: "When police came down it was found in your possession to have some identification that wasn't in your name. Can you tell me about this?" Answer: "It was planted on me". Question 95: "It was planted on you?" Answer: "As far as I can remember." Question 96: "Can you tell me anything about the passport we've just found on you?" Answer: "I don't know anything about no passport". You are charged with possessing proceeds of crime and remanded in custody.
IMPACT OF VICTIMS
29In terms of the impact on your victims, it was described as follows: Mr Sato was very scared and thought you and your co‑accused were going to stab them, as you had knives and they had no way of calling the police, as you had taken their phones.
30Mr Orii was extremely scared as he could not get to the reception areas as both you and your co‑accused, had knives. They waited for some time after you had left the premises, before going to the reception to report the incident, as they were afraid you might still be outside their apartment, or in the area generally. I find that these offences would have been a very frightening and disturbing experience for Mr Sato and Mr Orii.
YOUR PERSONAL CIRCUMSTANCES
31You are 28 years old. At the time of your ultimate arrest and being placed into custody on remand for these offences you were homeless, drug addicted and living out of your car.
32You were born in Serbia. You are of Bosnian and Albanian decent. You are the middle child of five. You have two brothers and two sisters. You have two daughters aged eight and 12. I understand the 12 year old is in fact your stepdaughter from a previous relationship. Your relationship with the mother of the eight year old daughter ended when you were incarcerated. Both girls are currently looked after by their grandparents respectively.
33You came to Australia with your family when you were eight years old. You arrived in Australia with your family after a year in Denmark and two years in Germany as refugees from the war in your home country. You have childhood memories of jets, sirens and bombings from your experiences in that conflict. Dr Cidoni has diagnosed you as suffering symptoms of post‑traumatic stress disorder from those experiences.
34When you were in Grade 3 your father had a stroke and was in a coma for some 50 days. This was the start of a fracturing of your education. You ultimately completed Year 9 and 10 after you went back to school. After completing high school you worked as a panel beater for some three to four years. In 2011 whilst performing a painting contract you fell from a ladder and injured your back. Later you had a car accident that further injured your back. You have been offered back surgery but refused due to your age and concern about the surgery itself. You have been on a disability pension as I understand it for the last three years.
35Dr Cidoni, psychiatrist, prepared a report dated 30 July 2016. It is Exhibit 1 on the Plea. Dr Cidoni had previously assessed you in 2012 for other court proceedings. In Dr Cidoni's opinion he says as follows:
"Mr Tozo has experienced a deterioration in his mental state in the context of ceasing work three and a half years ago and a further deterioration since his incarceration. His mental state has undoubtedly deteriorated since my assessment in 2012."
36Dr Cidoni then went onto opine that you have post‑traumatic stress disorder symptoms and a deterioration of your depression consistent with major depressive disorder. You are currently not receiving treatment for your depressive disorder.
37Dr Cidoni recommended that you require prescription antidepressant medication and psychological support for your condition. However he notes that your offending is whilst substance abusing and this has been a constant feature of all your offending going back to 2012.
38You gave Dr Cidoni an extensive history of your drug abuse. You have abused cannabis, alcohol, cocaine, ecstasy, amphetamines and smoked opium. Your main drug problem has been methamphetamine or “ice” over the last three and a half years. I have been told that you have been drug free for the 172 days of your presentence detention.
39The period on remand for these charges has been your first experience of imprisonment. Your criminal history commenced in 2008. Relevantly on 8 July 2008 at the Melbourne Magistrates' Court you were convicted and fined $500 for carrying a controlled weapon without an excuse. On 1 October 2009 at Moorabbin Magistrates' Court you were convicted for assault, intentionally and recklessly cause injury with other driving charges and an aggregate fine was imposed. On 6 August 2010 at Moorabbin Magistrates' Court you were convicted and fined a total of $800 for possession of a controlled weapon without an excuse. On 23 March 2012 in the Melbourne County Court on appeal from Magistrates' Court you were convicted of assault police, criminal damage, enter private place without an excuse, handling stolen goods and a number plate offence, a suspended sentence was imposed.
40The last relevant court appearance was 27 April 2015 for recklessly cause injury where you were convicted and sentenced to one month imprisonment suspended for a period of six months. It was only three months after the expiry from that suspended sentence that you offended on these charges. Further, you were on bail for other matters at the time these offences were committed. At the time of these offences your life was spiralling out of control and ultimately your freedom came to an end with your arrest by police.
SENTENCEING CONSIDERATIONS
41The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence; both specific and general, rehabilitation, denunciation of your actions and the protection of the community.
42In sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your three victims. I am required to balance interests of the community in denouncing your criminal conduct with the interests of the community seeking to ensure as far as possible you as an offender are rehabilitated and reintegrated into society.
43You have pleaded guilty at an early stage in these proceedings. The plea was finalised shortly after the committal mention stage. Your plea as the utilitarian value of allowing orderly and effective administration of justice. There is a certain outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community.
44You have by your plea relieved your victims Mr Orii, Mr Sato and Mr Ishikawa from giving evidence against you and it facilitates some closure for them as victims of your offending. Your plea is also a clear acknowledgement by you that you accept a responsibility for your criminal behaviour in this case. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept your plea of guilty to these charges indicates and demonstrates remorse on your part.
45The offending in this case by you is intrinsically serious. The aggravated burglary charge occurs in the setting where you have planned the offending. You have gone armed with a weapon of a box cutter. You have, with your co‑accused engaged in confrontational aggravated burglary where one of your victims was asleep in bed and the other one was having his breakfast. In your prior criminal history which I have just summarised, you have convictions for both dishonesty and violence. The charges before me have both of these features.
46At the time of your offences you were on bail for other matters not before this court. This is an aggravating feature when considering an appropriate sentence for these charges.
47It was submitted on your behalf that whilst parity of sentence applies in your case with the co‑accused Bakomihalis there are basis for disparity of sentence due to your relative youth, your lack of prior convictions for aggravated burglary and the fact that this is your first time in custody. I accept these three features are a proper basis for a slight disparity between the sentence for you and your co‑accused.
48The drug use by you over an extended period of time set out by Dr Cidoni means that your prospects of rehabilitation could only be described as fair. You have in the past had over 70 sessions of drug and alcohol counselling. Ultimately whether you can remain free of drugs is a matter only you can control. Given your past history of drug use it will be a very hard road for you to recover.
49It was submitted on your behalf that your psychological and psychiatric condition as assessed by Dr Cidoni will make your time in custody more burdensome and difficult for you than persons without these problems. I accept that submission is properly made and I have taken into account your mental state when sentencing you.
50The offending is serious and the only proper disposition is a term of imprisonment. The principles of general and specific deterrence dictate a term of imprisonment. I accept that the difference between yourself and your co‑accused Bakomihalis as outlined in these reasons indicate a slight difference in sentence between you and your co‑accused is appropriate. Otherwise equal punishment for equal criminality applies in this case.
51You have an additional charge of Charge 3 on the Indictment. I note that you have prior convictions for offending relating to fraudulent use of number plates. However in the totality of your offending it is appropriate in this case to order concurrency for that offence. On your summary Charge 6 offence a fine is only the appropriate sentence.
SENTENCE
52On Charge 1 you are convicted and sentenced to three years imprisonment. This is the base sentence.
53On Charge 2 you are convicted and sentenced to 12 months imprisonment.
54On Charge 3 you are convicted and sentenced to 3 months imprisonment.
55On summary Charge 6 you are convicted and fined $500.
56I order that six months of the sentence in Charge 2 be served cumulatively on the sentence in Charge 1. The sentence in Charge 3 is to be served concurrently with all other State sentences.
57That is a total effective sentence of three and a half years. I fix a non‑parole period of two years and four months.
58I declare that you have served 171 days pre‑sentence detention not including this day.
59Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to five and a half years imprisonment with a three years nine months minimum term.
60I make the section 464ZF forensic sample order which is by consent. I will just explain to you Mr Tozo the authorities have the power to use reasonable force to take a forensic sample from you if you don't comply and really what they do is they just take a swab from inside your mouth.
61The final order that I make is the disposal order which is sought and consented to.
62Does that cover everything? Yes, the s.6AAA declaration is five and a half years with three years and nine months non‑parole period.
63MS CASEY: Your Honour it's just occurred to me that I don't believe the cartridge ammunition is on the disposal order. I wonder if we might be able to amend that to add those.
64MR RATTRAY: No issue with that order, Your Honour.
65HIS HONOUR: Yes thanks.
66MS CASEY: And Your Honour declared the 172 days inclusive of today.
67HIS HONOUR: Yes, that was correct, isn't it?
68MS CASEY: I think technically it needs to be 171.
69HIS HONOUR: Right is that what it should read?
70MS CASEY: Yes.
71HIS HONOUR: Okay sorry I will adjust that order so it is 171 days not including today.
72MS CASEY: That's right so it's all the time up to but not including.
73HIS HONOUR: Officer, did you get that that's the main thing. The court order will set it out but it's 171 days not including, yes.
74MR RATTRAY: Your Honour, could I quickly approach my client?
75HIS HONOUR: Yes.
76MR RATTRAY: Thank you.
77HIS HONOUR: Is everything clear. Are you right with your client?
78MR RATTRAY: I am Your Honour.
79HIS HONOUR: Yes. Mr Tozo drugs is the problem. If you fix that you'll be okay. Remove the prisoner. I will just sign the orders so that you can have copies and go. Just while that is being done, I just thank you both for your assistance in this and encourage that approach Mr Rattray. Go for what's appropriate.
80MR RATTRAY: Thank you, Your Honour. Occasionally my view might differ from some judicial officers.
81HIS HONOUR: And that's okay. That's okay that's as it should be. I just repeat what I said. I will just initial those additions and that should be sufficient thanks.
82MR RATTRAY: Thanks.
83HIS HONOUR: Thanks. We will adjourn.
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