Director of Public Prosecutions v Tukiwaho

[2023] VCC 831

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOMMY TUKIWAHO

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2023
DATE OF SENTENCE:	23 May 2023
CASE MAY BE CITED AS:	DPP v Tukiwaho
MEDIUM NEUTRAL CITATION:	[2022] VCC 831

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – recklessly causing serious injury – intentionally damage property – 33 years old offender – sole person responsible for the injuries – misjudged response to provocation – long term diagnosis of chronic schizophrenia – reduced ability to exercise good judgement – reduced moral culpability – lack of any serious violent history – additional hardship in custody due to COVID – utilitarian value of plea during COVID – demonstrated progress towards rehabilitation

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

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Verdins v R (2007) 16 VR 269; Guden v R (2010) 28 VR 288; Allouch v R (2018) 276 A Crim R 1; Matamata v R [2021] VSCA 253

Sentence:Total effective sentence 11 months combined with a community correction order for 2 years 6 months; 11 months reckoned as already served; 6AAA: 3 years, 6 months with a non-parole period 21 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	D. Gray	OPP
For Accused	D. Carolan	James Dowsley & Assoc

HIS HONOUR:

1Tommy Tukiwaho, you have pleaded guilty to recklessly causing serious injury and to damaging property, both occurring during an incident on 31 August 2020.

Summary of offending

2The agreed basis for your guilty plea is set out in the Agreed Facts for Sentence Indication dated 10 May 2023.

3In summary, on 31 August 2020 at about 7 pm, you were visiting friends at their home in Parrakeet Road, Werribee. At about 7:30 pm, the complainant Mr Burgess, your ex-partner Ms Wallace and another man Mr Davidson arrived. They parked their car nearby but not out front of the house.

4Mr Burgess knocked on the door and was allowed in by one of your friends. Soon, however, he started arguing with you about money he said you owed Ms Wallace. After a few minutes he left and returned to the car where the others had remained.

5You then walked out with Ms Habeeb and towards the car. As you approached, Ms Wallace and Mr Burgess attacked you. Mr Burgess had a small axe and hit you with it to the back of your head causing you to bleed. Others from inside the house had also walked out and saw this occurring.

6You walked away from Burgess, back towards the house, with Habeeb.

7Within a minute, you had gone inside, collected a knife and a cricket bat from near the front door, and returned to the car where Wallace and Burgess had got in and were preparing to leave.

8You ran towards the car as they did so and hit the rear window causing it to smash with the bat (Charge 2, damaging property).

9Burgess was in the back seat when you smashed that window and you and he proceeded with the altercation that had begun earlier, through the broken window. You had the knife in your hand and during the struggle caused serious injury to him.

10You caused a 2–3 centimetre wound to his chest, another to his abdomen and a laceration to his left flank, the latter two were later found not to be clinically significant (Charge 1, recklessly causing serious injury).

11The penetrating wound to the chest was found to involve 2 perforations to Mr Burgess' heart - a most serious injury indeed.

12Having said that, and consistent with the allegation being one of recklessness, I find that the altercation between you and Mr Burgess at that time involved you both moving and struggling with each other through a broken glass window of the vehicle as it was preparing to drive off. It was a fluid situation and not one in which you intended to penetrate any specific location on Mr Burgess' body.

13Ms Wallace, while this was going on, started the vehicle and drove away. Ultimately, she drove Mr Burgess to the Werribee Mercy Hospital about 20 minutes later, although it was only a few minutes' drive from the location where the injury was caused.

14Upon arrival at the hospital Mr Burgess was not breathing and required CPR. The injuries were considered life-threatening and at times his survival was not expected. He was airlifted to Royal Melbourne Hospital and underwent open chest and abdomen surgery. He remained in an induced coma for about 5 days.

15Mr Burgess has not provided a victim impact statement. The prosecutor indicated that he did not wish to engage in that process. In any case, the likely impact on him of the offending is relatively apparent in the description I have given. Such injuries as I have described to the chest and heart requiring the kind of surgical intervention that occurred, could only be described as having a most grave kind of impact. It is to be expected that Mr Burgess will live with the physical and psychological consequences of this incident for many years, if not the rest of his life. I have taken this into account in sentencing.

Procedural history

16Police went to the Parrakeet Road address at about 2:30 am the following morning, 1 September 2020, and arrested you. After taking you to Werribee police station they had you transferred to Werribee Hospital by ambulance for treatment to your head injury.

17At about 11:30 am, later that morning, they interviewed you and released you pending further enquiries.

18About a month later, on 9 October 2020, police arrested you again and interviewed you further. You were then charged and remanded in custody where you have remained since until May of last year.

19I accept that during that time access to personal visits in custody has been restricted due to lockdowns, making your time in custody more burdensome than it should have been. Likewise, many rehabilitative programs and treatment services that would have been delivered in person have been either unavailable or delivered remotely. I will reduce your sentence because of this.[1]

[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

20Your guilty plea in this case is of particular significance. Firstly, it comes at a stage in the proceeding when a significant evidential ruling was yet to be made. Had that ruling been favourable to you, the strength of the Crown case would have been very much reduced. Rather than take advantage of this prospect, you have elected to admit your wrongdoing and facilitate the course of justice, to your own detriment.

21Secondly, your plea means that a trial, requiring witnesses, some of them with mixed motives and perhaps unreliable, to give evidence about a traumatic event, has been avoided. At a time when the court's resources are under strain due to the Covid backlog, such a plea has added value and must result in a noticeable reduction in sentence. ^[2]

[2] Worboyes v The Queen [2021] VSCA 169, [35]-[39]

22I find that your guilty plea is consistent with and suggests a degree of remorse for what you did.

Personal circumstances

23You were born in New Zealand and remain a citizen of that country. You are now just 33 years old having moved to Australia in about 2000 and have remained here on appropriate visas.

24Your parents separated when you were younger and your mother relocated to Melbourne, where she lives with your younger brother who is undergoing treatment for leukaemia. Your father remains in New Zealand.

25Until about 10 years ago you were a highly sought-after and talented golfer. You had been granted scholarships both during your high school years and since that time to play at various clubs. You enjoyed the sport, and the prospects of a bright future were yours.

26During your late teens, however, you had your first contact with mental health services and in recent years have been the subject of multiple hospitalisations both in New Zealand and Australia. You have been diagnosed with chronic schizophrenia and relevantly, in July 2020 you were placed on a community treatment order.

27As far as work goes, your history has mainly related to your golfing where you played for various clubs.

28Currently, you live in a supported accommodation close to your mother and brother and have regular contact with them. Your community activities are rather restricted and have, since May 2022, been the subject of bail conditions.

29At the time of this offending your accommodation was unstable as was your mental health. It is pleasing to see that with the return of your immediate family to Melbourne you have been able to overcome those problems and focus on the future.

Sentencing issues

30The maximum penalty for recklessly causing serious injury is 15 years' imprisonment and for damaging property, it is 10 years.

31Your offending in this case does not attract any standard sentence provisions, nor are they regarded under the Sentencing Act1991 as a category 1 or 2 offence or a 'serious offence' as defined.

32Nevertheless, causing serious injury, even recklessly, regularly attracts a term of imprisonment. This reflects the very great concern that community has for punishing this kind of behaviour appropriately and seeking to deter others from engaging in it.

33I accept that you were the only person responsible for causing the serious injuries to Mr Burgess. In that sense your moral culpability is substantial. However, given the context in which you did so, including the fact that you had just sustained a serious blow to your head with an axe, and that your reaction to it in attacking Mr Burgess occurred almost immediately in response to such provocation, I find that your moral culpability is significantly reduced.

34I am comforted in making this finding by your lack of any serious violent history, and the fact that those who know you well provide ample evidence that this type of behaviour is out of character for you. I have had regard to the personal references to this effect written by Kayla Christiansen, Joshua Edwards, Joeanne Gage, and your mother Margaret Gage (Exhibit 3).

35In forming this opinion, I have also had regard to the opinions of forensic psychiatrist, Dr Prashant Pandurangi in his reports of 28 March 2022 and 5 May 2022 (Exhibit 1). He states that whilst there was no evidence of active psychosis on the day of this incident, you have a long-term diagnosis of chronic schizophrenia, you were on a compulsory treatment order (CTO) at the time, your compliance with medication was sporadic, you were observed during recent days to have been erratic and irrational, and the 'negative symptoms' (the long-term detrimental effects on your psychology of having schizophrenia) resulted in a reduced ability to exercise good judgement and make other decisions. The prosecution did not dispute this.

36The significance of the effect of your negative symptoms is further borne out by the assessment of neuropsychologist Ms Jane Lofthouse, who provided a report dated 2 February 2022 (Exhibit 2). She conducted an extensive examination of your abilities and concluded that you live with mild executive dysfunction that is likely to reduce your ability to consider consequences and exercise good judgement. I note the focus of Ms Lofthouse in her examination was the state of your abilities during a police interview on the very next morning after the incident. So, I regard her findings as being of particular relevance when assessing your state of mind the night before.

37I also note that by the time of your remand in early October 2020, about a month later, you were seen to be relapsing into florid psychosis.

38Your counsel, Mr Carolan submitted that the state of your mental health reduced your culpability, the need to use your sentence as a means to deter others and opened up an alternative type of sentence as an option.[3] The prosecutor, Mr Gray, submitted that while there was no demonstrable causal connection between your symptoms and the offending, he accepted there was a reasonable relationship between your negative symptoms and the offending.

[3] Verdins v R (2007) 16 VR 269, limbs 1, 2 and 3.

39Indeed, I find that there was a reasonable relationship between at least the long-term symptoms of your psychotic illness and the decisions you made on the day in context. In particular, I have had regard to the heightened pressure-filled moments following the attack on you and the head injury you sustained from Mr Burgess hitting you with an axe. Your conduct was far from a wanton act of violence against an innocent bystander, rather a misjudged response in the heat of the moment against an armed attacker. Having said this, I have not lost sight of the fact that you walked away, entered the house, collected weapons before returning to the car in short compass.

40Such violence must be deterred and met with stern punishment. For this reason, along with the need to denounce this kind of behaviour and to impose just punishment, the only appropriate sentence in this case is one that involves imprisonment. But that is not the end of the story.

41You do not have a significant criminal history. The only matters on your record relate to minor charges arising from an incident in a New Zealand hospital when you were psychiatrically very unwell.

42You have a relatively good character in spite of the challenges you have faced in your life. I do not find the need to give any significant weight to deterring you specifically from further criminal conduct, or to protecting the community from you, when imposing sentence in this case.

43Your time in custody, as I have set out already, has been difficult and prolonged.

44I find you to have good prospects of rehabilitation. On bail, you have been a compliant and successful participant in the Court Integrated Support Program (CISP), as revealed in a report from your case manager dated 2 May 2023 (Exhibit 4). You have maintained your medication and treatment for your mental illness. Indeed, I find that you have travelled a significant way down the path to reform, if that is the right term for you.

45As the prosecutor accepted, I find your risks of future offending to be very much reduced.

46An important feature of your circumstances is the relationship with your mother and extended family. Your younger brother has recently been diagnosed with serious cancer and is undergoing treatment that involves both him and your mother living in hospital related accommodation. You support them and they you.

47The importance of their support of you is reflected in the fact that your mental health took such a significant downturn in 2020 after your mother and brother went to Western Australia and were effectively trapped there due to Covid travel restrictions, leaving you unsupported in Victoria and with unstable accommodation.

48We are now almost three years down the track from this offending, and your progress in the circumstances, as well as your ongoing needs, gives rise to questions of fairness and how best to ensure your ongoing recovery, which also serves the interests of the community.

49The delay in finalising your case has given me the benefit of being able to see how your rehabilitation has progressed. Given that positive progress and the important role played by your relationship with your mother and brother, I would regard it to be unfair to a degree to then place you at risk of being removed from that family setting and sent to New Zealand. In light of section 501 of the Migration Act1958 (Cth) and related provisions, I would regard that risk as being very high if I were to impose an imprisonment term of 12 months or more.

50I take the risk of your deportation into account when determining the type and duration of your sentence, as the prosecutor agreed I should.[4] Indeed it was agreed that a combination sentence of imprisonment with a community correction order would be appropriate in the unusual circumstances of your case.

[4] Guden v R (2010) 28 VR 288; Allouch v R (2018) 276 A Crim R 1

51It would be wrong in my view to imprison you for any longer than you have already served, running the real risk of undermining the proper rehabilitative purpose of sentencing in this case.[5] Further, your removal from Australia where you have sought to make a permanent home, would be additionally punitive, appropriate punishment already having been achieved in my view by your lengthy detention before being granted bail on 23 May 2022.[6]

[5] Matamata v R [2021] VSCA 253

[6] Allouch v R (2018) 276 A Crim R 1.

52Your counsel submitted that a combined sentence in all the circumstances would be appropriate, and the prosecutor agreed.

53Upon your application for a sentence indication heard on 11 May 2023, I indicated that I would make such orders. You have accepted that indication and today have proceeded with your guilty plea as proposed.

54I will sentence you as follows:

(a)   On Charge 1, recklessly causing serious injury – 11 months combined with a community correction order;

(b)   on Charge 2, damaging property – a community correction order;

(c)   The single community correction order is with conviction, and it will last for 2 years and 6 months.  It will contain conditions requiring:

(i)Supervision

(ii)Assessment and treatment for alcohol and drug use and assessment and treatment for your mental health

(d)   I declare that you have served 11 months by way of presentence detention, and I direct that this be reckoned as a period already served under this sentence.

55In accordance with s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed 3 years and 6 months and fixed a non-parole period of 21 months.

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