Director of Public Prosecutions v Tufuga
[2017] VCC 1836
•6 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00917
CR-15-01924
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH TUFUGA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 October 2017 and 8 November 2017 | |
DATE OF SENTENCE: | 6 December 2017 | |
CASE MAY BE CITED AS: | DPP v Tufuga | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1836 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – 1 charge of causing injury intentionally – 1 charge of false imprisonment – 1 charge of causing injury recklessly – contravention of a Community Correction Order made in proceeding CR-15-01924 – re‑sentencing of those offences.
Legislation Cited: s18, s74, s75A and s320 of the Crimes Act 1958; s73 of the Drugs, Poisons and Controlled Substances Act 1981; s83AD(1) and s83AS of the Sentencing Act 1991; Migration Act 1958
Cases Cited:Phillips v R [2012] VSCA 140; Boulton & Ors v R [2014] VSCA 342; R v Mills [1998] 4 VR 235; Azzopardi v R [2011] 35 VR 43; Chol v R [2016] VSCA 252; Guden v R (2010) VR 288; R v Qwon [2005] NSWCAA 456; Konamala v R [2016] VSCA 48; Da Costa Junior v R [2016] VSCA 49; Schneider v R [2016] VSCA 96; Darcie v R [2012] VSCA 11
Sentence: Total effective sentence 32 months imprisonment; non-parole period of 21 months imprisonment; 297 days of pre-sentence detention declared; 6AAA declaration– four years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Bate | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr W. Barker (Solicitor) | David Barrese & Associates |
HIS HONOUR:
1 Joseph Tufuga, you have pleaded guilty to the following offences:
Charge 1, that you, at St Albans in Victoria on 11 February 2017, without lawful excuse, intentionally caused injury to the complainant.
The offence of intentionally causing injury is contrary to s.18 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2, that you, at St Albans in Victoria on 11 February 2017, unlawfully imprisoned the complainant and detained her against her will.
False imprisonment is contrary to common law and pursuant to s.320 of the Crimes Act 1958, carries a maximum penalty of ten years’ imprisonment.
Charge 3, that you, at St Albans in Victoria on 11 February 2017, without lawful excuse, recklessly caused injury to Rawiria Timothy.
The offence of recklessly causing injury is contrary to s.18 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment.
2 The prosecution has provided a document headed “Amended Summary of Prosecution Opening”, which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a) You were in a relationship with the complainant and such relationship produced two children, who at the time of the subject offending, were respectively two years of age and ten months of age. The relationship between you and the complainant ended in November 2016, after which you moved into the home of your parents and the children remained living with the complainant. You continued to have contact with the children by agreement with the complainant.
(b) On Saturday, 11 February 2017, the complainant took the children to your parents’ to visit you and arrived in her car at about 12 pm. You met the complainant and assisted her bringing the children inside, after which you stated that you wished to talk to her and asked your younger sister, to take the children to the back room so you could talk to her.
(c) You then pulled a coffee table over and placed it directly in front of the complainant so you were sitting face to face with her. You then began questioning the complainant about her past and where she had been the night before and telling her that if she did not tell the truth, you would hit her.
(d) You asked the complainant a question which she answered, after which you accused her of lying. You then hit the complainant with your right fist across the left side of her face, causing the complainant’s nose to bleed. (Charge 1, intentionally causing injury) You then gave the complainant some tissues and told her to clean up the blood, during which time you continued to question her, before hitting her in the same place, causing the complainant’s nose to bleed more profusely. (Again, Charge 1, intentionally causing injury)
(e) You then lifted the single armchair that the complainant was sitting on, flipping it backwards, causing the complainant to fall to the floor on her back, after which you said to her, “Get up and stop acting”.
(f) The complainant then sat on another chair, causing you to come and sit directly face to face with the complainant, after which you picked up
a piece of broken wood and started tapping the complainant on the forehead with the piece of wood, which began to get harder and then stopped. You then punched the complainant on the right side of her face, using your left fist. (Charge 1, again intentionally causing injury) The complainant continued to bleed and there was blood on her singlet top.
(g) You then left that room and returned with some paper towels and a bag of frozen vegetables which was held to the complainant’s face. You asked whether the complainant would like to go to the bathroom to clean up the blood, but she did not want to do this and she started to feel dizzy. The complainant was wiping her face with paper towels, with blood dripping down her singlet.
(h) You then laid down on a three seater couch in the same room and went to sleep, during which time the complainant went into the kitchen and picked up her daughter and returned to the room where she intended to give her daughter her bottle.
(i) Shortly after your daughter finished the bottle, your parents arrived home and your mother informed the complainant not to come to the house with the children anymore, because it was not safe. At that time, the complainant told your mother that she just wanted to leave the house with the children and your mother informed her that she would go and speak to your father, because she was worried about how you would react when they tried to leave. After some conversation between you and your father, you informed your father:
“Don’t worry Dad, Alex is sleeping with another man”.
You told the complainant to come into the lounge and talk to you further, after which the complainant refused, stating that she just wanted to go home and would not tell anyone what happened.
(j)You told the complainant to give your daughter to your mother, after which your mother grabbed the child off the complainant and you and the complainant walked out of the front of the house to the driveway. You informed the complainant that she should not have got your parents involved and that nobody was going to save her now. You told her to sit on the bonnet of the car, which she did, after which you punched her to the face with your right fist, causing the complainant to drop to the ground and her nose to start bleeding again. (Again, Charge 1, intentionally causing injury) Again, you told the complainant to “get up and stop acting”.
(k)In particular, I refer to Exhibit 1 as to what occurred thereafter:
“28.…asked the complainant if she wanted [you] put her in the boot and take her somewhere. She felt dizzy and was attempting to straighten up. She did not respond.
29.…[you then ran]… and got the complainant’s car keys. [You] opened the boot of her car and told her to ‘come here’.
30.The complainant ran from where she was standing at the front of the car, trying to escape. [You] followed her in every direction she turned. [You]… then jumped over the car and chased her down the street.
31.The complainant was screaming for help and turned to see [you] right behind her. [You] then tackled her to the ground, causing her to hit her shoulder on the concrete curb. (Charge 3 - Recklessly Causing Injury.)
32.A resident of the street,… has heard shouting and came outside. She saw [you] and the complainant running, before seeing them stop. [The resident] has yelled out ‘What’s going on?” but got no response.
33.Another resident… heard an ‘extremely loud blood-curdling scream’. She has walked outside and seen [you] and the complainant at the end of the driveway of 3 Pinoak Street. [The resident] saw blood pouring from the mouth and nose area of the complainant. [She] describes the complainant's head to be dropped backwards, as though she was semi-conscious, with her eyes to be closed. [She] saw [you] had a hand on each of the complainant’s shoulders and appeared to be supporting her.
34.[You] looked up and seen [the other resident], before calling out ‘It’s all good’. [You] then helped the complainant walk back to her car and leaned her up against the passenger door.
35. [You] were standing directly in front of the complainant when she has collapsed to the ground.
36.[You] yelled out to [your] brother, asking him to bring a roll of toilet paper. [You] then told the complainant to get in the car and that he would take her to the hospital.
37. The complainant got into the car in fear, believing [you were] going to kill her.
38.[You] started driving and continued to hit the complainant while doing so.
39.The complainant was unable to tell where [you were] driving as she was holding a tissue to her face, was unable to open her left eye and trying to block [you] from hitting her at the same time.
40.[You] continued to drive for about ten minutes, telling the complainant not to talk and to shut up. The complainant begged [you] to stop the car and let her leave. (Charge 2, False Imprisonment)”
(l)You then stopped the car at a park and directed the complainant to go to a public toilet and clean herself up. You then drove the plaintiff back to your parents’ home, arriving at approximately 5.30 pm, finding that the rest of the family, together with the complainant’s children, had left the home to go to church. You called your father and asked him to return home and open the house, which was done, allowing you and the complainant to enter the house.
(m)The complainant attempted to open her left eye in the bathroom, during which time you started apologising, telling her to have a shower and freshen up, which was done. You were informed by the complainant that her shoulder was really sore and she was advised by you to put Voltaren (an anti-inflammatory cream) on it.
(n)The complainant had gone to the back room of the house and fallen asleep, waking up at about 10.30 pm, but having difficulty waking up properly. [You] ultimately took the complainant to hospital - against the initial wishes of the complainant, because she did not want the police involved. However, because of ongoing pain in her shoulder, she agreed for you to take her to the Sunshine Hospital, where she was admitted to the emergency department at 4.33 am on 12 February 2017. You then called a friend of the complainant and requested that she come to the hospital, which she did, after which you left. You later returned to deliver the complainant’s phone charger, before leaving again.
(o)At the hospital, the complainant was assessed by medical staff and underwent an x‑ray. Her injuries consisted of the following:
(i)A fractured left scapular;
(ii)Two parallel linear red bruises to the left side of the upper back and extending up to the left shoulder. Below these bruises and extending towards the armpit, an area of red bruising with a maxi of graze and scratch abrasions.
(iii)Bruising over the left aspect of the face, including the eye, upper jaw and cheek.
(iv)A large area of raised swelling and bruising in the centre of the forehead.
(v)Abrasions to the centre and left hand side of the forehead, the left hand side of the face/cheek.
(vi)A vertical linear scratch abrasion to the upper left cheek.
(vii)Swelling to the left cheek.
(viii)Bruising to the left side of the upper neck.
(ix)A five centimetre scratch abrasion to the right side of the neck, accompanied by a further deeper one centimetre scratch abrasion at the anterior end to the five centimetre abrasion. Just anterior to these abrasions, was an area of pinpoint-type bruises.
(p) Dr Jo Ann Parkin, a clinical forensic medical senior physician, is of the opinion that such injuries are indicative of several impacts to the head and face.
(q) At the request of the complainant, her friend contacted the complainant’s family, who arrived at the hospital and contacted police, who spoke to the complainant. The complainant completed her statement in relation to the matter at 6.50 pm on 12 February 2017.
3
At 8.42 am on 12 February 2017, police attended at 3 Pinoak Street, St Albans. You were located asleep in the lounge room, cautioned and placed under arrest, before being transported to Sunshine Police Station. At 9.26 am, you participated in a recorded interview with police, during which time you were
co-operative with police and made admissions to the offending. At the time of the record of interview, you refused to provide a sample of your DNA, however consented to providing details of your fingerprints. You were remanded in custody and counsel for the prosecution informed the court that you had served 239 days pre‑sentence detention, up to but not including the first day of the plea.
4
Counsel for the prosecution also tendered a bundle of photographs of the complainant, taken on the day of her admission to hospital. (See Exhibit 2)
I have perused such photographs.
5 I am informed by counsel for the prosecution that you entered a plea of guilty in relation to the subject offending at a committal mention on 11 May 2017 and the prosecution accepts that such plea of guilty is at the earliest possible time.
6 You are not quite 26 years old (being born in December 1991) and were 25 years old at the time of the offending
Your criminal history
7 I was informed that your criminal record set out in a document, dated 10 August 2017, was admitted. That document was not tendered and I do so and mark it as Exhibit 5.
8 I note the following:
(a) On 17 November 2008, at the Sunshine Children’s Court, it was found that you entered a building with intent to steal and, without conviction, you were placed on probation for a period of 12 months;
(b) On 30 January 2012, at the Broadmeadows Magistrates’ Court, you were convicted of theft from a shop (that it's, shop steal) and fined $250;
(c) On 1 April 2014, at the Sunshine Magistrates’ Court, you were convicted of various driving offences and failure to answer bail, for which you were fined an aggregate of $1,500 and your licence was cancelled and you were disqualified from obtaining a further licence for six months;
(d) On 1 March 2016, at the Melbourne Magistrates’ Court (sitting at the County Court), you were convicted of possessing ecstasy, heroin and cannabis and were sentenced to a community correction order for 12 months. Beyond the normal conditions, there was further conditions of you being supervised, performing 150 hours of community work and undergoing treatment and rehabilitation in relation to drug abuse, dependency and any offending behaviour programs, as directed.
Furthermore, on 1 March 2016 at the Melbourne Magistrates’ Court, you were convicted of the following offences - refusing to leave private place after warning, resisting police officer, refusing or failing to state name and address, committing an indictable offence whilst on bail, contravening
a conduct condition of bail, failure to answer bail, unlicensed driving, and refuse to accompany police for breath analysis; and also sentenced to
a Community Correction Order, as already described in the previous paragraph.
(e) On 13 May 2016, at the Melbourne County Court, you were convicted by this Court of one charge of armed robbery, two charges of theft and two charges of possession of drugs of dependence and also an uplifted charge from the Magistrates’ Court of theft from a shop.
In relation to the armed robbery, you were declared to have served, by way of pre‑sentence detention, 73 days and sentenced to a Community Correction Order for four years. Beyond the normal conditions of such an order, further conditions were that you perform 200 hours of unpaid community work, undergo supervision, and undergo assessment and treatment for drug use, participate in programs which addressed factors relating to your offending and be subject to judicial monitoring. In respect of the other offences, you were sentenced to various fines.
The contravention proceeding
9 Also on 9 October 2017, there was heard the summons in relation to you breaching the order made by this court on 13 May 2016. In particular, it was alleged and admitted by you that, pursuant to s.83AD(1) of the Sentencing Act 1991, you contravened the Community Correction Order made on 13 May 2016, without reasonable excuse, in that you:
(a) failed to report to the Community Corrective Service within two clear working days, as required;
(b) failed to be supervised, monitored and directed on a number of occasions; and
(c) further offended on 11 February 2017 (that is, the subject offending) during the currency of the Community Correction Order made on 13 May 2016 and to which you initially pleaded guilty on 11 May 2017.
10 I annex to these reasons, my earlier “Reasons for Sentence”, dated 13 May 2016. Counsel for the prosecution tendered the contravention report, dated 25 September 2017 (see Exhibit 3).
11 The earlier “Reasons for Sentence” set out the circumstances of the offending, which involved the armed robbery at a 7‑Eleven store on 13 July 2015. Following further thefts at a Myer store on 10 August 2015, you were arrested and ultimately made admissions in relation to the circumstances surrounding the armed robbery on 13 July 2015. On 10 August 2015, you were remanded in custody until 22 October 2015, a period of 73 days.
12 At the time of that earlier hearing, I was also informed by your counsel (who appeared in both proceedings) that subsequent to being bailed on 22 October 2015, you were subsequently charged with unlicensed driving, occurring on 1 January 2015, possession of cannabis on 28 July 2015 and later, resisting police following a verbal altercation at a McDonald’s drive-through, in company with another person on 4 February 2016. It is at that time - that is the incident on 4 February 2016 - you were apparently found in possession (in the vehicle) of ecstasy and heroin, but such drugs did not belong to you. These events were the subject of the proceedings before the Melbourne Magistrates’ Court on 1 March 2016, when you were ultimately placed on a 12 month Community Correction Order.
13 Again, I refer to my earlier “Reasons for Sentence” wherein at paragraphs [11] to [12], I set out your personal circumstances, education and vocational background, as known at that time. I also refer to the details of the evidence of your brother, Tom Tufuga, who gave evidence on your behalf at that hearing. At paragraphs 17 and 18, I also set out your counsel’s plea in mitigation in relation to those offences, including the armed robbery. I will not repeat these matters.
Matters referred to by your counsel and your plea in mitigation
14 Your counsel tendered the following documents:
(a) Plea submissions (Exhibit A);
(b) Bundle of supporting material, consisting of a letter of apology from you to the complainant (undated, but of recent times); references from your brother, Tom Tufuga, dated 9 October 2017 and from Alena Tufuga (your sister-in-law). (See generally Exhibit B.)
(c) Urine screen test results and certificates of courses completed since being in custody (Exhibit C).
15 Your letter to your partner does suggest you are remorseful for your actions in relation to your assaults on her on 11 and 12 February 2017. Furthermore, I have read the comments of your brother and sister-in-law in relation to your day-to-day attitude and the remorse that you have shown.
16 The urine screen test results over the period from July 2017, up to and including 9 September 2017, are negative. Also I note that you have undergone a drug and alcohol treatment program at the Metropolitan Remand Centre over the period from late-August 2017 to late-September 2017. You have been described as demonstrating an “outstanding commitment to the program”. Furthermore, you have been involved in other programs when in prison, including a Certificate II in Engineering (arc welding, traffic control and implementing traffic management plans) together with completion of the Gamblers' Help workshop, completion of a stress program, all of which have been performed successfully.
17 In particular, your counsel confirmed that since being sentenced by the County Court on 13 May 2016, you have used cannabis on some occasions -about once a week - but have only used methamphetamine on one occasion, either in late-December 2016 or early-January 2017. During the course of that Community Correction Order, you did drink alcohol on a small number of occasions, but such caused no issues.
18 Your counsel informed the court that since your conviction for armed robbery on 13 May 2016, you have been involved in the following employment:
(a) For about four months, commencing in about July 2016, you were employed by Laverton Cold Storage as a labourer, involved in forklift driving and despatch work;
(b) In late-2016, again for a period of about four months, you were employed by Roller Shutter Industries on the dayshift and also worked nightshift picking and packing;
(c) In late-2016 again, you worked for about two months doing picking and packing work on the night shift for a business which name you could not recall and also continued to work at Roller Shutter Industries at night.
Your employment came to an end on being remanded for the subject offences in early-2017.
19 Your counsel submitted to the court that over a period of time, you had become concerned that your wife had been unfaithful while separated from you and this came to a head on the visit where the offending occurred.
20 In particular, your counsel submitted the following matters are relevant in mitigation of any sentence in relation to the subject crimes or indeed, if the court should so decide to re-sentence you in relation to the armed robbery offence:
(a) Consistent with the submission of counsel for the prosecution, you pleaded guilty to the subject offending at the earliest opportunity. Furthermore, you made full admissions to assist the police in their investigation. Such plea of guilty obviated any need for the complainant to give evidence at a committal or trial hearing.
(b) That you have demonstrated genuine remorse in relation to your attack on your partner, as shown by your comments in your record of interview, the contents of the letter written to the complainant and indeed, the comments of other members of your family. Furthermore, your counsel also refers to you, on the day of offending, taking the complainant to the hospital for her to obtain treatment, ringing her friend and clearly putting yourself in
a position to be identified as the offender.
(c) Although conceding that the subject offending was “serious” and “aggravated, due to it being family violence-related offending”, your counsel notes that no weapons were used in the commission of the assaults. However, he notes that such assaults were on a vulnerable victim and were not provoked by any violence from the victim. Again, there was no evidence, so it was submitted, of any planning by you to commit the offending, nor did you make any attempt to conceal the offending, demonstrated by you persuading the complainant to let you take her to hospital for treatment. It was also suggested by your counsel that, given your background as a boxer, the assault could have been far more serious.
(d) It was submitted that you are still a reasonably youthful offender and although having a prior criminal history, there are no prior convictions for assaults, although the armed robbery incident did involve the threat of violence and use of a weapon. You have strong family supports in Melbourne - that is to say, your immediate family where you were living before remand - and also have a reasonable work history leading up to your remand.
(e) Although you have breached your Community Correction Order made by the court on 13 May 2016, it was submitted that you have shown motivation towards rehabilitation in the past. In particular, reference was made to the following:
(i) In 2014, you moved to Queensland temporarily to address your substance abuse and to avoid negative friends, only returning when requested by police to undergo an interview.
(ii) You have shown the ability to remain abstinent from any serious drug use and generally maintain employment;
(iii) Although it is clear that you have not performed any of the unpaid community work, pursuant to the order made on 13 May 2016, it was stressed that in relation to the community corrections order made by the Melbourne Magistrates’ Court on 1 March 2016, you had completed 66 hours of the 150 hours ordered.
21 It was submitted that given your youth, rehabilitation is still a primary factor and given the lack of any relevant prior convictions for violence, you had “good prospects” for rehabilitation. It was accepted that the matters going to rehabilitation must be balanced with compliance of previous sentences.
22 It was submitted that taking into account your immediate family support and stable accommodation available, lack of relevant prior convictions, your rehabilitation towards substance use issues and ongoing abstinence and your past employment history, the remorse shown by you and your youthfulness, that you should be sentenced to a community corrections order, perhaps following a term of imprisonment.
23 In this respect, it was submitted that the present provisions relating to community corrections orders permitted imprisonment up to 12 months, followed by a community corrections order up to five years.
The response of counsel for the prosecution
24 Counsel for the prosecution tendered a further document, headed “Outline of Prosecution Submissions on Plea” (see Exhibit 4).
25 In particular, counsel submitted that the subject offending was “extremely serious offending” and cannot be explained by a momentary loss of temper. Your actions, so it was submitted, amounted to a sustained attack, where assaults were occurring over a six hour period. Although it was clear that the children did not witness the assaults, but knowing that the children were in another room and feeling as though no one was coming to her aid, added to the distress experienced by the complainant. The children would have at least witnessed the effects of the assaults, given that the complainant’s nose and face were bleeding. Although there is no injury alleged from the use of the piece of wood, such action could be described as “antagonising and threatening”, bearing in mind that the woman was hit over the head while she was sitting.
26 Counsel for the prosecution submitted that general deterrence was a significant factor in the sentencing disposition, as was specific deterrence, given that you have demonstrated poor compliance with two Community Correction Orders in the past. In particular, it was submitted that the Court should view your prospects of rehabilitation as “guarded”. Furthermore, it was submitted that you could no longer be viewed as a youthful offender, being on the cusp in terms of age.
27 Counsel for the prosecution noted that in the contravention proceedings, the officer from Corrections recommended that the community corrections order be cancelled and that you be re-sentenced. In this respect, the prosecution submitted that any “combination sentence” - that is to say a sentence of imprisonment followed by a Community Correction Order - would be outside the range in these circumstances.
28 If the Court was to re-sentence you in relation to the earlier armed robbery, such offending did involve a degree of planning and caused the victim of that robbery to be terrified as demonstrated on the CCTV footage which was shown at the earlier hearing. Counsel accepted that totality does apply in all the circumstances.
The risk of deportation
29
When this matter was heard on 9 October 2017, your counsel expressly disclaimed any reliance on issues pertaining to deportation, as a result of being sentenced in these proceedings, as it was unclear as to what your status was in Australia. The Court was subsequently informed that further information had been obtained and the matter was again brought on for limited hearing on
8 November 2017 for such submissions to be made.
30
At that time, your counsel had limited information and the prosecution submitted, rightly in my view, there was no proper foundation to make any submission in relation to the risk of deportation. Ultimately, the matter was adjourned to this date, in order that any further information could be obtained by your counsel, in order to support any submission relating to deportation. On 4 December 2017, the court received further documentation from your solicitors, which consisted of a Visa Entitlement Verification Online (“VEVO”), which describes you as a “temporary resident” who was granted
a visa on 9 November 2010. The nature of the visa was a “TY/444” class. Such visa permits indefinite stay in Australia and also unlimited work and study entitlements.
31 It was submitted that you are subject “to deportation under the same character test as other non-permanent residents”.
32 It was accepted that the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on you in two possible ways:
(a)During the currency of incarceration, because it makes the imprisonment more burdensome on the offender than otherwise would have been, due to the offender serving imprisonment in a state of fear and concern about being deported upon expiry of a sentence (Guden v R (2010) 288 at [27]; Darcie v R [2012] VSCA 11 and in particular at [29] to [46]); and
(b)Upon release, because it amounts to additional “punishing consequences” of the offence, such as where the offender lives and the opportunity of settling in Australia (Guden v R (op. cit.) citing R v Qwon [2005] NSWCAA 456 at [14]).
33
I note that the Migration Act 1958 changed in 2014, in that, after that date,
a person holding a visa, such as the visa held by you, will have that visa revoked if, amongst other things, you are sentenced to a term of imprisonment of 12 months or more. There are remedies open to such people to overturn such revocation in the legislation.
34
At the time of Guden v R (op. cit.), the prospect of deportation was
a discretionary decision made by the Minister of Immigration. Under the present regime, it is a matter of speculation as to what a responsible Minister may or may not do when an application for revocation is made, following any automatic cancellation decision (see Nguyen v R (op. cit.) at [52]).
35 I refer to Konamala v R (op. cit.) at paragraphs [34] to [37], where the Court of Appeal (consisting of Maxwell P, Redlich and Priest JJA) stated:
“Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous, will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation may be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.
In Guden, it was recognised that, subject always to the state of the evidence before the sentencing judge, the prospect of deportation is
a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.
For the reasons given in Lima Da Costa Jnr v R, the amendments do not require any change to the approach in sentencing. What was said in Guden still applies. It is apparent that the judge directed herself correctly in considering the evidence of the risk of deportation.
As already mentioned, the judge said that she considered that ‘there is the possibility that [the applicant] may lose the opportunity of settling permanently in Australia’ and that there ‘is a degree of risk that [his] concern and fear of being deported upon serving [his] sentence will make [his] imprisonment more burdensome than it would have otherwise’. The sentencing judge said specifically that she had ‘taken these factors into account’.”
36
In response, counsel for the prosecution submitted that, based on the further material, it was open to the court to take into account the added hardship of
a sentence of imprisonment, if it be for 12 months or more, in the way I have already enunciated.
37 In this respect, I accept that if you were ultimately deported and that such deportation was not revoked, it would give rise to hardship, as you, your family and your children are now well settled in Australia.
Conclusion
38 I consider that each of the charges in relation to the subject proceeding is serious offending and clearly a form of domestic violence. Seemingly on the basis of your belief building up over some period of time that your partner had been unfaithful during her separation from you, you saw fit to interrogate her and when given answers that you perceived to be untruthful, initially struck her with your right fist across the left side of her face (causing her nose to bleed), later hitting her in the same place (causing her nose to bleed more profusely) and later punching the complainant on the right side of her face using your left fist. These events constitute Charge 1, intentionally causing injury. As accepted by your counsel, the complainant had done no more than bring her children to your parents’ house and in no way provoked you. One can only imagine how frightening it was for the complainant to suffer such a beating, also with the knowledge that her two young children were in the room next door and that no one was coming to her aid.
39 During this period, you flipped backwards the single arm chair that the complainant was sitting on, causing her to fall on her back and later, again when sitting directly opposite her, started tapping the complainant on the forehead with a piece of wood, which began to get harder and harder.
40 Later you threatened to place the complainant in the boot of the car and when standing near the front of the car, the complainant tried to escape from you, causing you to chase her down the street while she screamed for help. You tackled the complainant, causing her to hit her shoulder on the concrete kerb, which is the event which gives rise to Charge 3, recklessly causing injury. It is to be noted that one resident heard “an extremely loud blood-curdling scream” during the course of these events and she noticed blood was pouring from the mouth and nose area of the complainant.
41 When she was placed back in the car, you continued to hit the complainant and she had no idea where you were driving, as she was holding a tissue to her face and was unable to open her left eye and furthermore, trying to block you from hitting her at the same time. During this period of time, the complainant begged you to stop and let her leave the car, which you did not allow (constituting Charge 2, the false imprisonment).
42 I accept the submission of counsel for the prosecution that your actions cannot be seen as a momentary loss of control, but rather a sustained period of violence, from when the complainant arrived on that day, until such time that you finally took her to hospital for treatment.
43 It is to be noted that the complainant arrived at your parents’ premises on 11 February 2017 at approximately 12 pm and she was ultimately taken to hospital by you at about 10.30 pm that night.
44 In mitigation, I do accept that your plea of guilty to the offences was at the earliest reasonable time. Furthermore, I also accept that you have shown some remorse for your offending, as evidenced by taking your partner to the hospital after the offending, assisting the authorities with their investigations, writing the letter to your partner and indeed, your expressions of remorse to other members of the family. I also take account of your recent letter, which I am informed has been written in the last couple of days and has now been marked as Exhibit D, which states, amongst other things, your remorse and regret for your actions. In the letter you seek another chance. By that, I understand you to be seeking a further community corrections order, as indicated by your counsel.
45 In general, I also accept that in distinction to many relatively young offenders, you appear to have some family support around you and have demonstrated your ability to obtain employment, as seen by the work you undertook following your armed robbery in May 2016. Such work came to an end, only because of being remanded in early-2017.
46 Furthermore, I accept that you have seemingly committed yourself to undergoing drug and alcohol treatment programs at the Metropolitan Remand Centre in August and September 2017. Also, you have involved yourself in various certificates to improve your vocational capacity. All of this is to your credit.
47 However, I have come to the view that, for whatever reason, you have shown poor compliance with both community corrections orders made, in particular, the order made by this court on 13 May 2016, the subject of the contravention proceeding. I consider that the prospects of your rehabilitation are “guarded”, notwithstanding your relatively young age.
48 Your counsel has urged that you be sentenced to a further community corrections order, given your youth, your family support and the potential for you to obtain employment after any period of incarceration.
49
Bearing in mind the nature of the subject offending, which can only be described as violent and frightening and totally unprovoked, I do not consider that
a community correction order is an appropriate sentencing disposition. This is reinforced, as I have commented, by your poor compliance with previous community correction orders and in particular, the order made on 13 May 2016. It must be remembered that you were convicted, in particular, of a very serious offence - and the court gave you the opportunity to help rehabilitate yourself by ordering a community corrections order. You revealed little commitment to such order.
50 I intend to convict you of each of the offences and sentence you to an immediate period of imprisonment. Furthermore, based on the material before me, I do find, pursuant to s.83AD of the Sentencing Act 1991, that you have contravened the community corrections order made by this court on 13 May 2016.
51
Pursuant to s.83AS of the Sentencing Act 1991, I intend to cancel the community corrections order made on that date and re-sentence you in relation to the armed robbery committed by you on 13 July 2015 (That is, Charge 2).
I refer to and repeat what I stated in paragraphs [22] to [24] and [30] of my earlier “Reasons for Sentence”, delivered on 13 May 2016.
52 I do note that when convicted and sentenced to that charge, there was declared a period of time served of 73 days’, relevant to your offence. Pursuant to s.83AS(2) of the Sentencing Act 1991, I also take account of the extent to which you have complied with the order made on 13 May 2016.
53 In relation to the subject offending, I consider that general deterrence, specific deterrence and just punishment, denunciating the nature of the offences, are all part of determining an appropriate sentence. I also take account of the various mitigating matters I have detailed, including the prospects of deportation, as already enunciated.
54 Please be upstanding.
(a)In relation to Charge 1 (that is, of the subject offending on CR-17-00917), you are convicted and sentenced to a period of imprisonment of
15 months. This is the base sentence.
(b)In relation to Charge 2, you are convicted and sentenced to a period of nine months imprisonment;
(c)In relation to Charge 3, you are convicted and sentenced to a period of six months’ imprisonment.
55 In relation to the armed robbery charge (that is, Charge 2, the subject of the contravention proceeding CR-15-01924), you are convicted and sentenced to a period of 12 months’ imprisonment.
56 I order that six months of the sentence in relation to Charge 2, three months in relation to the sentence in relation to Charge 3, and eight months of the sentence in relation to the armed robbery charge (CR-15-01924), is served cumulatively upon each other and upon the sentence imposed in relation to Charge 1.
57 The effective sentence is 32 months. I order that there be a non-parole period of 21 months.
58 I declare that you have served 297 days in pre-sentence detention in relation to the subject offences and such period is to be administratively deducted from your sentence.
59 In relation to Charges 1, 2 and 3 of the current offending, I declare that, save for your pleas of guilty to these offences, I would have ordered a period of imprisonment of four years.
60 I grant the orders sought for disposal and forfeiture.
61 COUNSEL: As Your Honour pleases.
62 HIS HONOUR: Any issues arising out of all of that?
63 MR BARKER: Can I just clarify one number? The non-parole period was 21 months, was it?
64 HIS HONOUR: Sorry, the non-parole - 21 months.
65 MR BARKER: Yes.
66 HIS HONOUR: Total effective sentence, 32 months. If you want to, we can check that, but I do not say I am always - - -
67 MR BARKER: I had down a total 32 with 21.
68 HIS HONOUR: Yes. Yes. And 297 days pre-sentence.
69 MR BARKER: Yes.
70 HIS HONOUR: Yes. I will allow you to approach your client, just to briefly say anything. Do you want you?
71 MR BARKER: It is all right, Your Honour, I can go downstairs and have some time - - -
72 HIS HONOUR: You can go - yes. Very well, take the prisoner.
73 MS BATE: Your Honour, can I just clarify that, on the actual contravention itself, Your Honour's found that proven, but made no sentence that is attributable to that charge.
74 HIS HONOUR: No, I should have made that clear, but no, on the actual contravention, no, it is only the re-sentencing for the armed robbery.
75 MS BATE: Thank you, Your Honour.
76 HIS HONOUR: Yes, sorry, I should have made that clearer.
77
MR BARKER: I also have one question perhaps, just so that other people don't hear it, it's simpler. The 73 days originally declared, that's not to be taken
as - - -
78 HIS HONOUR: No.
79
MR BARKER: It is simply taken into account for today's sentence, it's not
been - - -
80 HIS HONOUR: No, because it is only - it is an interesting question raised, because I gave thought to that, but when you look at the - what you are substituting here today is the - cancelling the community corrections order and this is the sentence, in lieu of the community corrections order and the community corrections order was made on the basis that he had already served that number of days.
81 MR BARKER: Yes.
82 HIS HONOUR: That is taken into account, so really, I suppose another way of looking at it, if I was probably at that time, I do not want to go too far with this analogy, but I would be looking at 12 months, plus the extra days, saying that would have been an appropriate sentence at that date.
83 MR BARKER: Around about 15 months.
84 HIS HONOUR: Well, whatever - - -
85 MR BARKER: I don't disagree with that. It is just to make it clear, so that nobody asks these questions.
86 HIS HONOUR: No, there is - - -
87 MR BARKER: It is on the transcript though.
88
HIS HONOUR: No, no, look, so there is no doubt about this, what I have - my intention and I think probably, I hope it makes plain that there is three charges on the current proceeding, there is the armed robbery charge, the subject of the contravention proceeding in the earlier case. I have given sentences for each of the charges here and I have allowed a further sentence of 12 months in relation to the armed robbery charge after cancelling the order. I have cumulated those amounts, consistent with the principles of totality and I have got a sentence of 32 months, of which he must serve a non-parole period of
21 months and his 297 days are counted as to the pre-sentence detention.
89 The distinction you have to make in my view is this. It is the cancellation of the order and what do you replace the order with, of the order, being the CCO?
90 MR BARKER: That is how I took it.
91 HIS HONOUR: Yes.
92 MR BARKER: I simply wanted to clarify it to make sure there was no issue, that's all.
93 HIS HONOUR: Yes. No, so the only - when I say "the only", the pre-sentence detention is 297 days, which will be administratively taken off. So, before parole, he has got 21 months, less the 297 days.
94 MR BARKER: Yes.
95 HIS HONOUR: Is that your understanding? You accept that?
96 MR BARKER: That is my understanding. I really wanted to do it to make it - so it's clear that - - -
97 HIS HONOUR: Yes, Ms Bate, have you got any issues about that at all?
98 MS BATE: No, Your Honour.
99 HIS HONOUR: Yes. It seems to me that is the only way that section can be appropriately interpreted.
100 MS BATE: Yes, Your Honour.
101 HIS HONOUR: Yes.
102 MS BATE: I would agree.
103 HIS HONOUR: Yes. Anything else to raise with me?
104 You can take the prisoner, thank you. Wait a minute. Are the members of the family here? Well, hang on for a second. Gentlemen, is there any problem with me just allowing this man to have a quick word to his brother? You are the brother, are you not?
105 MR BARKER: Yes, the brother and the mother and father are here, Your Honour.
106 VOICE (from body of the court): Yeah. And my mum and sister and dad.
107 HIS HONOUR: Yes, as I understand it, are family allowed downstairs?
108 MR BARKER: No.
109 HIS HONOUR: No. Look, I will allow you just a very quick - but do not touch the prisoner or go anywhere near him. You can approach him, all right?
110 MR BARKER: Thank you for that, Your Honour.
111 HIS HONOUR: I will stay on the Bench while that occurs.
112 Yes, thanks gentlemen, you can take the prisoner.
113 Yes, otherwise we will adjourn sine die.
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