Director of Public Prosecutions v Tufue

[2023] VCC 2080

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01610

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAAFAAVA TUFUE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2023, 19 October 2023
DATE OF SENTENCE:	10 November 2023
CASE MAY BE CITED AS:	DPP v Tufue
MEDIUM NEUTRAL CITATION:	[2023] VCC 2080

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: attempted aggravated burglary - breach of s197 Crimes Act - recklessly cause injury - conduct endangering persons - driving whilst disqualified - possessing an imitation firearm - possession of ammunition - committing an indictable offence while on bail - fail to answer bail - moderate risk of committing serious physical harm - problematic substance use - Renzella time.

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);

Cases Cited: R v Verdins [2007] VSCA 62

Sentence: Six months and 392 days imprisonment and a community corrections order for two years. 392 days has been served by way of pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hartman	Office of Public Prosecutions
For the Accused	Mr R. Backman	Gleeson & Associates

HIS HONOUR:

1Mr Tufue pleaded guilty to charges in indictment number L12423827, on 30 September 2022, after a committal on 5 September 2022.  The matter was fixed before me for plea on 28 June 2023, when Mr Hartman appeared for the Director, as she does today, and Mr Backwell appeared on behalf of Mr Tufue, as he does also today.

2The matter was adjourned to 19 October 2023 for further plea, and tendered that day was Exhibit A, the amended prosecution opening, accepted by Mr Backwell as representing the facts upon which I am to sentence his client, dated 17 October 2023.

3Subsequently, following the plea, we have received a community corrections order report dated 20 October 2023, which can be Exhibit B and Exhibit  C, a MAHS report dated 24 October.  The community corrections report records that
Mr Tufue is suitable for such a disposition.  In the plea itself was tendered, the plea outline of Mr Backwell dated 18 October, Exhibit 1, the psychological report of Mr Kocic, dated 28 August 2023, Exhibit 2, and results recorded at the prison in regard to various TAFE courses undertaken by Mr Tufue, Exhibit 3.

4In the plea, Renzella time was agreed at 450 days, which I understand is primarily concerned with the trial of which I presided over, in which Mr Tufue was found not guilty of the alleged crimes on 15 May 2023.  The agreed PSD is 392 days pursuant to an email sent to the Court from the Director on 27 October 2023.  As part of the plea, Mr Backwell accepted the prior history of Mr Tufue. It is clear that that prior history relates essentially to driving matters, matters of which involve no violence.

5Coming to the offences themselves, the attempted aggravated burglary which    occurred on 12 October 2020, is an offence under the combination of 75A and 321M of the Crimes Act, for which the maximum penalty imposed is one of 20 years. One's mind boggles when one thinks that the amount of which Mr Tufue was seeking that day was $500. Also on that day, the second offence committed were firstly the damage to two windows of the premises owned by N Singh, that was a breach of s197 of the Crimes Act, for which the maximum penalty prescribed is one of 10 years imprisonment.

6The third charge is one of recklessly cause injury to Mr Singh Johnson, an offence under s18 of the Crimes Act, for which the maximum sentence is imprisonment of five years and the fourth charge was conduct endangering, being the driving of which took place in Yarraville, an offence under s23 of the Crimes Act, for which the maximum penalty is one of five years imprisonment. Associated with that particular offence upon conviction, is the opportunity, should I see it as appropriate for making an order, of cancelling and disqualifying Mr Tufue from obtaining a licence and disqualifying him under s89A of the Sentencing Act, an option I do not intend to act upon.

7 Mr Blackwell made a plea on behalf of Mr Tufue to the summary matters.  Charge 7 being a charge under the Control of Weapons Act, in regard to possessing an imitation firearm, which the maximum penalty prescribed is one of 240 penalty units and/or two years in gaol.  Charge 9 is one of possession of ammunition for which the maximum penalty is one of 40 penalty units.  Charge 10 was a bail offence, committing an indictable offence while on bail, for which the maximum penalty is 30 penalty units and/or three months gaol. Charge 12 is fail to stop and exchange name and address for which the penalty is five penalty units.  Charge 13, drive whilst disqualified, maximum penalty prescribed is 240 penalty units and/or two years gaol and finally, summary Charge 17, fail to answer bail, for which the maximum penalty prescribed is one of two years imprisonment. 

8Mr Tufue is now 28 and was 25 at the time of the offending and as I have said, has been on remand for a considerable period. 

9The circumstances of the offending at Protea Crescent, related to a debt that  Mr Tufue was seeking to recover, I suppose is the correct word. Unfortunately, he chose a not a very good way to do that and finds himself before the Court on a very serious charge of attempted aggravated burglary.  He utilised, depending on who you believe, either a large knife and/or a imitation firearm or part thereof, in attempting to get into the house.  There was various interactions and ultimately, he was involved outside the house in regard to Charge 3, with an altercation with the victim in that charge.  He also at some stage was chased himself, but anyway he made his way back to the car and got out of the area. 

10At the scene, the police recovered the knife which Mr Tufue said he found at the premises and had used as part of the attempt, and a firearm barrel which apparently subsequently was found to fit the other part of the imitation firearm that Mr Tufue had in his car. There was a search conducted for him and he was ultimately found later that day at 3.35 pm and upon failing to stop, he recklessly endangered, not only pedestrians, but police, by way of his driving and that makes up the offence set out in Charge 4.

11 Mr Tufue was then subsequently searched, asked to state his name and as a result of those searches and the matters involved, the summary charges were committed.  At the time, he was a disqualified person and did not have a licence.  He was on bail and as I have already said, did not have a dramatic criminal history, certainly in regard to any matters of violence.  The maximum penalty is as set out in the prosecution opening.  I have already indicated the date of the plea.  As to the ancillary matters, I have indicated I will sign the three documents today.

12Mr Backwell in the plea essentially submitted that if you add the PSD and the Renzella time, that Mr Tufue has done enough time in gaol.  His submission utilised the phrase “a thousand days”, that in fact is 842 days.  He pointed to the steps taken to improve his life by Mr Tufue while he has been in gaol.  He has apparently gained a white card, he has attended to his methamphetamine issues, has had urine screens.  The only one I am told that was available was a urine screen, February of this year, which was negative.

13It was pointed out that in fact he does have somewhere to live when he eventually gets out of gaol.  He has of course been in gaol where he has been subject to restrictions from COVID in gaol. The psychologist report tendered was put as the basis for the proposition of Mr Backwell, that principles 5 and 6 in Verdins can be utilised, because of his psychotic medication which puts pressure on him, that the normal person would not have in prison.

14I must say, it was somewhat difficult reading Danijela Kocic's report, to  ascertain what was the ultimate diagnosis, apart from essentially difficulties with insight into I think, not only the offending behaviour, but his own life.  At [98] was expressed the opinion of a moderate to high risk of future physical violence.  At [100] insofar as moderate risk of committing serious physical harm, potentially with weapons, it was noted that that risk is partly mediated by his abstinence from substances.

15 It is quite clear Mr Tufue that abstinence must be maintained by you.  You come out and get on drugs, you are going to get into the same problems again.  You are very lucky at the moment, given your background, this is the first serious offence that the Court has had to deal with.  But if you do not maintain abstinence, you are going to get yourself into trouble. 

16As a result of your problematic substance use, the psychologist opined you had  developed a form of self-medication for what she describes as psychological distress.  It seems that is related to your stimulant use disorder, [109]. Further at [114], your aggression and violence and potential for aggression of violence, are also related to your substance use and it was the opinion of the psychologist that you can endanger yourself and others because of your impulsive, aggressive, illogical behaviour.  Obviously those matters are all present if you stay on drugs.

17Ms Kocic also raised concern generally as to your base mental condition, the volatile prison environment and that is essentially the basis as I understand it, that Mr Backwell put principles 5 and 6 in Verdins [2007] VSCA 102, [32] for me to take into account. As your counsel said, Mr Tufue, it is time for you to change your life. It would be a great shame to see you placed in a position where you were subject to a more serious penalty than this, which would clearly lead to you being deported from this country. Mr Backwell also pointed to the issues that may come into account if I passed a sentence in excess of twelve months, over what you have already served.

18In response, Ms Hartman took me to the principles insofar as those issues of being deported.  I will not need to go to those.  She accepted, however, that the aggravated burglary charge was to be seen at the lower end, albeit she submitted that the driving, given that it took place on one of the major residential streets in Yarraville, was a serious instance of that offence.

19It was the prosecution submission, despite all the matters, that an appropriate sentence was one of gaol and parole, albeit the prosecution accepted Mr Tufue, the steps that you had taken while in gaol to try and better yourself.  In the actual plea as I have said, your background was gone into and your history.  In particular, the fact that you had a very limited criminal history.  I have already spoken about your mental health.  The time in custody, given your age, was a very important factor in this matter and ultimately, Mr Backwell submitted that a combination sentence would be in range and called for a report which was in fact obtained.

20Tendered today is a report from the Department of Justice and Community Safety, where you were assessed as suitable for a community corrections order.  That report is dated 20 October 2023 and I thank Monica Dakoff for that report.  It recommends suitable conditions should you be given a community correction order.  In addition was prepared a mental health advice and response service report, this assessment was made on 24 October.  Essentially, again, to stress what I have already said to you, that report stressed that abstinence from illicit substances must be encouraged and monitored, otherwise this will negatively impact on your judgment, exacerbate your mental health condition and associated risks.

21The consideration of that report upon the evidence, which include the psychologist's report, which had been forwarded by the Court, was that you suffer from a moderate mental health condition, however, it is likely that without intensive ongoing treatment and regular monitoring, your mental health will deteriorate.  It was also noted that your presentation is strongly indicative of an illness, it was difficult to define, but was described on the basis of Ms Kocic's report as schizophrenia, or a schizoaffective disorder. 

22As is clear from the two submissions, the fundamental point is what to do with you, given the totality of these crimes. Ultimately, I have taken the view that it is appropriate to accept the submission made by your counsel.  Insofar as the Renzella time of 450 days, I have taken that into account totally in the sentence that I impose. 

23On the indictment, pursuant to s9 you will be sentenced to an aggregate sentence, being a combined period of imprisonment and a community corrections order under s44(1), being imprisonment for six months and 392 days and a community corrections order for two years. 

That community corrections order will have on it as recommended, the mandated conditions: - firstly as to treatment insofar as drugs is concerned, secondly, treatment condition as to alcohol, thirdly, a treatment condition as to your mental health, a condition as to a work requirement over that two year period of 200 hours and finally, a requirement for supervision.

24I understand that you have consented to this community corrections order and its conditions, should it be passed, and I understand that is the position Mr Backwell is it?

25MR BACKWELL:  That's correct, sir.

26HIS HONOUR: All right. Insofar as the sentence is concerned of imprisonment, I declare under s18 that 392 days has been served by way of pre-sentence detention, which makes up thirteen months and twelve days. So for the prison part of the sentence Mr Tufue, you have to serve a period of approximately six months from today. That is the additional period you have to serve. As to the summary matters, on Charge 7, in regard to the imitation firearm, I impose a period of imprisonment of one month. As to the ammunition matter, Charge 9, a penalty of five penalty units, which Madam Associate total what?

27HIS HONOUR:  Which total $815, that is five penalty units at $165, which was the appropriate penalty unit.  Charge 10, the commission of indictable offence while on bail, one month's gaol.  Charge 12, fail to state name and address, one penalty unit being $165.  Charge 13, drive while disqualified, one month's gaol and Charge 17, fail to exchange, one month's gaol.  I do not have to say it, but the order spits it out apparently, but the Sentencing Act in this State decrees that unless there is a specific order for cumulation, all matters and the summary matters to which gaol is involved, are to be served concurrently.  I have I think signed the forfeiture orders have I, or have I got - have you got them?

28ASSOCIATE:  No, they're ‑ ‑ ‑

29HIS HONOUR:  Or have I got them?

30ASSOCIATE:  Yes, no there's some of the older ones.

31HIS HONOUR:  Yes.

32ASSOCIATE:  And I'll just redo them.

33HIS HONOUR:  Redo them not today, not now?

34ASSOCIATE:  Not now.

35HIS HONOUR:  I will sign them later.  So I will sign those Madam Prosecutor.

36MS HARTMAN:  Thank you, Your Honour.

37HIS HONOUR:  So 6AAA, Mr Tufue, Parliament requires me to tell you what would have been the penalty, had you not pleaded guilty in these matters.  It is a very difficult assignment for a Court because the only factor I am supposed to take in is your plea of guilty.  As is obvious, there have been many other factors in your sentence, however, doing as best I can, in the circumstances had you not pleaded guilty, I would have sentenced you to a period of gaol of two years, and without a CCO.  Any matters in that Mr Backwell?

38MR BACKWELL:  No sir.

39HIS HONOUR: And so, what I clearly mean is there's six months to serve, after having made the s18 declaration.

40MR BACKWELL:  Yes sir.

41HIS HONOUR: I think we all know what it means, the question is how it's ultimately expressed. There seems to be some view about it, but what is your experience, are they normally expressed as the total, as the period of imprisonment, and then the s18?

42MR BACKWELL:  In my experience, different judges do it differently.

43HIS HONOUR:  Yes, well that's mine.  All right, can I thank you both for your assistance.  Mr Tufue, good luck, got to make sure no more mistakes, all right?  You have been doing well.  All right, all the best.

44OFFENDER:  Thank you, Your Honour.

45HIS HONOUR:  You will be out in six months and then you have got to make sure you take the opportunity to have those assistance that the community will give you in regard to drugs.

46OFFENDER:  Thank you, Your Honour.

47HIS HONOUR:  Very well, all the best.

48OFFENDER:  Thank you.

49HIS HONOUR:  Thank you again to both counsel.

50MR BACKWELL: Your Honour pleases.

51MS HARTMAN:  Your Honour pleases.

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