Director of Public Prosecutions v Tui

[2023] VCC 2366

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

Case No. CR 23-01301

DIRECTOR OF PUBLIC PROSECUTIONS

v

TJ TUI

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2023
DATE OF SENTENCE:	8 December 2023
CASE MAY BE CITED AS:	DPP v Tui
MEDIUM NEUTRAL CITATION:	[2023] VCC 2366

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW      

Catchwords:  Recklessly cause injury – Corrections Prison Officer – Offender on remand – Substantial criminal history – Youth Adult Offender ­­–

Worboyes principles – Principle of totality.

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

Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; DPP v Tui [2023] VCC 869

Sentence:  Six months imprisonment wholly concurrent.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	Office of Public Prosecutions
For the Accused	Ms B. East	Slades & Parsons Criminal Law

HIS HONOUR:

1TJ Tui, you have pleaded guilty to one charge of reckless cause injury.[1]  This carries a maximum penalty of five years' imprisonment.

[1]Crimes Act 1958 (Vic), s 18.

2At the time of offending, you were being remanded in custody at the Metropolitan Remand Centre.  On 30 December 2022, you were informed of your transfer to Barwon Prison.  You initially followed directions and placed your hands through the trapdoor to be handcuffed, however, as the handcuffs were being applied you attempted to pull them back through the trapdoor into your cell.  A baton was used, and OC spray was deployed to stop you pulling the handcuffs into your cell.

3A short time later the door of the cell was opened by the complainant together with other officers.  You proceeded to head butt the complainant in the face striking him above the bridge of the nose.  The offending was captured on CCTV footage.

4The complainant presented at the emergency department at the Sunshine Hospital with a left sided nosebleed and a slight degree of nasal swelling and deformity.  He underwent an X-ray on 10 January 2023 which revealed a transverse facture through the tip of the nasal bone area.

5On 6 January 2023 you were recorded on a prison telephone call with a female during which you said the following.

'They tried to move me.'

'And they had one - one of my hands handcuffed to the door and then they opened - they opened my door and they tried to run in on me.'

'So I head butted one of the - one of the Soggies and then punched the other one.'

6I pause here to note that you are not being charged for punching the other officer you claim to have charged.

7There is no victim impact statement in this case.

8Reckless cause injury is a level 6 offence which carries a five-year maximum.  The offence is a category 1 offence under the Sentencing Act1991 (Vic). Section 5 sub-section (2G) of that Act therefore applies.

9Section 10AA sub-section (4) of the Sentencing Act requires that a term of imprisonment of not less than six months be imposed for an offence against s18 if the victim was a custodial officer on duty, as your victim was, unless the court finds under s10A of that Act that a special reason exists. No special reason has been identified in this case.

10You have, Mr Tui, a substantial criminal history. 

11The prosecution submission in this case is that a term of imprisonment ought to be imposed.  Mr Teo, on behalf of the Director, submitted that there ought to be some cumulation between this sentence and the sentence you are currently undergoing.  I imposed that sentence on you on 25 May 2023.  I will have a little bit more to say about that presently.

12Ms East, on your behalf, filed plea submissions with the court dated 7 December 2023 and in them it is accepted that your offending on this occasion is serious and involves an unprovoked attack.  She however stresses that the offending was of relatively short duration and did not involve the use of a weapon.

13It is accepted that the injuries sustained by the complainant are not insignificant although without any current update it is expected that the complainant will have made a full recovery from his injury.

14It is accepted that your charge, Charge 1, is a category 1 offence and it is accepted that pursuant to s10AA sub-section (4) of the Sentencing Act the court must impose a term of imprisonment of not less than six months unless a special reason exists.  It is not submitted in this case that a special reason exists and it is accepted that you must be punished by way a term of imprisonment of at least six months.

15Your personal circumstances are to be found at paragraphs 56 to 65 of the sentencing remarks I made which were published on 25 May this year and I do not intend to recite those personal circumstances again here.[2]

[2]DPP v Tui [2023] VCC 869, [56] – [65].

16I have been told that you remain in high security at Barwon Prison.  You have a single cell, and you are allowed out between 9.30 and 11 am and 1.30 to 3 pm each day.  You are not working in custody due to being in high security.

17Over the past two months you have engaged in weekly counselling with Mr Anthony Pedulla from Forensicare to assist with anger management.  The counselling takes place once a week by video conference and runs for approximately an hour.  I have also been told that you are receiving medication for nerve damage daily but no other medication.

18You continue to have video contact with your family from custody and you continue to be precluded from contact visits until you are able to be moved out to a unit with lesser security.  That is unlikely to occur before the end of 2024.

19Ms East has emphasised that you entered your plea of guilty at an early opportunity.  No witnesses were subject to cross-examination at a contested committal hearing.  By your plea you have accepted your criminality and you have expressed remorse.

20She also placed reliance on the fact that your pleas were entered during the aftermath of the COVID-19 pandemic when the courts in the State of Victoria were significantly congested and for that reason you attract an amelioration of your sentence in keeping with the principles in Worboyes v The Queen and I quote.[3]

A sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.

[3]Worboyes v The Queen (2021) 96 MVR 344, 356 [35].

21Whilst it is accepted on your behalf that you are not a youthful offender; you were 22 years of age at the time of the offending and you will be 23 at the time of this sentence.  For this reason, it is contended that your relatively youthful age remains a sentencing consideration heightening the importance of rehabilitation as a sentencing consideration.

22However, it is accepted that in your case, given your prior relevant criminal history, there are other matters which ought to be taken into account.  Those other matters, of course, include general deterrence and denunciation.

23As to your prospects of rehabilitation, it was submitted by Ms East that the following matters are relevant in assessing your prospects of rehabilitation: 

a)At 23 you are still relatively young; and 

b)You maintain contact with your family and you have family support; and

c)You have engaged with treatment for anger management in the past two months; and

d)There has been no further offending since 30 December 2022.

24It is accepted that you have no pre-sentence detention despite remaining in custody since the offending occurred nearly 12 months ago and since being sentenced by me in May of this year.  There has, it is argued, been a lost opportunity for concurrency.

25This offending took place late last year.  I dealt with you on 25 May 2023 for a variety of offences and as a consequence of requests for disclosure which were perfectly orthodox and responsible requests to have been made, it was not possible for this charge to have accompanied the others.  Had it been, then you would have been dealt with, if not with substantial concurrency then with complete concurrency.

26Accordingly, Ms East relies upon the principle of totality and the need that any sentence imposed on you be a 'just and appropriate measure of the total criminality involved'.

27Whilst it is accepted on your behalf that a term of imprisonment is appropriate Ms East also relies upon the principles of parsimony and proportionality, noting that the court must avoid a crushing sentence and the court must not impose a sentence that is more severe than that which is necessary to achieve the purposes for which it is imposed.

28It is conceded, of course, that these principles are important sentencing purposes in this case considering the nature of the offending and your prior criminal history.  That is a reference to the operation of general and specific deterrence, just punishment and community protection.

29Included amongst the offences that I sentenced you for in May of this year were two that involved assaults upon Corrections officers and that is a troubling aspect of your offending.

30In discussion in the court this morning I sought to make the point, Mr Tui, that you are undergoing a substantial term of imprisonment and you are undergoing that term of imprisonment as a relatively young man.  This is, by some distance, the longest term of imprisonment that you have been obliged to serve.

31It is understandable if, from time to time, you express frustration at the way you are being handled but if you continue to lash out at Corrections officers the ultimate victim is you.  This sort of conduct in prison has ramifications far beyond any sentence that a court imposes on you.  It involves notations on your record.  It involves you being written up and these are matters which will weigh in the balance when it comes time to consider your application for parole.

32You are still relatively young, and you have reasonable prospects of reformation but if you repeat this kind of conduct your prospects in the gaol system will be bleak. 

33I have taken the course today of imposing a sentence on you which I will render wholly concurrent.  So, I would ask you to stand, Mr Tui.

34Mr Tui, on the charge of reckless cause injury I convict and sentence you to six months' gaol.  I order that that sentence be served wholly concurrently with the sentences you are presently undergoing.

35Sit down now.

36Pursuant to s6AAA the sentence I would have imposed but for your plea is a sentence of nine months which again I would have rendered wholly concurrent with the sentence you are presently undergoing.

37You need to understand, Mr Tui, that I have taken a view that I am not going to interfere with your non-parole period, and I am not going to interfere with your head sentence.  I am doing that here and now today but if you appear before me again and if you appear before me again in relation to lashing out at a Corrections officer, I will have no option but to impose a prison sentence which will extend your non-parole period and extend you head sentence.  Do you understand?

38OFFENDER:  Yep.

39HIS HONOUR:  You are still relatively young, and it is to be hoped that you will grasp the opportunities that are being provided to you in prison and one of those, of course, is completing an anger management course.  As I have explained to you, you are the one who is ultimately going to suffer as a consequence of any lashing out that you do in gaol.  You will pay a very heavy price for it.  So bear that in mind.

40Are there any ancillary orders?

41MR TEO:  No, Your Honour.

42HIS HONOUR:  Very well.

43MR TEO:  No, Your Honour.

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