Director of Public Prosecutions v Tumai
[2021] VCC 1089
•6 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-01627
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TE HUINGA TUMAI |
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2021 | |
DATE OF SENTENCE: | 6 August 2021 | |
CASE MAY BE CITED AS: | DPP v TUMAI | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1089 | |
REASONS FOR SENTENCE
Catchwords: Sentence – Armed Robbery. Resulted in injury to the victim. Category 2 offence.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | David Barrese & Associates |
HIS HONOUR:
Introduction
1 Te Huinga Tumai, you have pleaded guilty to an indictment containing a single charge of armed robbery, contrary to s75A Crimes Act 1958. This offence carries a maximum penalty of 25 years' imprisonment.
2 You have also consented to this court hearing, and pleaded guilty to the following three summary charges:
· Assaulting an emergency worker, contrary to s51(2) of Summary Offences Act 1966. The maximum penalty for this offence is 60 penalty units or six months' imprisonment. (Charge 5)
· Possessing cartridge ammunition whilst not the holder of a licence, contrary to s124(1) of the Firearms Act 1996. This offence carries a maximum penalty of 40 penalty units. (Charge 7)
· Contravening a family violence intervention order, contrary to s123(2) Family Violence Protection Act 2008. The maximum penalty for this offence is 240 penalty units or two years' imprisonment. (Charge 9)
3 The armed robbery that I am sentencing you for is a Category 2 offence.[1] This is because the victim suffered injury as a direct result of the offending. That means under s5(2H) of the Sentencing Act, I am required to make an order under Division 2 of Part 3 (that is, a custodial order) unless one of the circumstances set out in paragraphs (a) to (e) are established. Quite sensibly, your counsel, Ms Anderson, made no attempt to invoke any of these circumstances.
[1] As defined in s 3(1) Sentencing Act 1991. ('Sentencing Act')
4 The circumstances of your offending are set out in the amended prosecution opening dated 22 July 2021.[2] Your counsel indicated that the opening was an agreed document. I will set out the facts of your offending briefly.
Armed Robbery
[2] Exhibit A.
5 At the time of the offending, you were aged 46, having been born in September 1973. You resided with your partner, Ms Kahu, your two step- daughters and your son aged eight, in a boarding house in a Melbourne suburb. Also living at the same house was the victim of the armed robbery, Joseph Elevenson, aged 34 at the time of the offending. Mr Elevenson was behind on his rent by some $650. You were told by another resident at the house, that you would have to pay more money towards the rent to make up for Mr Elevenson's missing contribution.
6 On the morning of the offending, you consumed ice.[3] You then decided to take Mr Elevenson's bank card by force to get some money to pay his share of the rent.
[3] Of course, you are not being sentenced for using ice.
7 Sometime between 6 am and 7 am on the 21 December 2019, you entered Mr Elevenson's bedroom, who was asleep in his bed. You were armed with an extendable baton. You struck Mr Elevenson with the baton to the back of his head, waking him up. You then continued striking Mr Elevenson repeatedly to the head with the baton and placed your foot on his chest. You uttered the words 'Where is your phone?' Mr Elevenson told you it was on the bedside table. You took the phone and handed it to Ms Kahu who was standing near the doorway to Mr Elevenson's bedroom.[4] You asked Mr Elevenson for the PIN to his mobile and continued striking him to the head with the baton until Mr Elevenson managed to grab a hold of it. You were provided with the PIN.
[4] Ms Kahu was placed on diversion by the Melbourne Magistrates' Court for theft of the phone.
8 You then asked him for his wallet. He told you it was in his pants. You took his wallet and asked him for his PIN to his debit card, which he also provided.
9 Mr Elevenson was in and out of consciousness during the armed robbery. During a period of unconsciousness, you awoke Mr Elevenson by pouring water on his face. You removed the covers and blankets from his bed and attempted to clean the blood.
10 Mr Elevenson fled from the house and ran to a neighbour's house where he was able to use a phone and call the police. Police and ambulance arrived, and he was conveyed to The Alfred Hospital where he remained for three days.
11 Mr Elevenson's injuries were photographed. He suffered cuts and bruises to his head, a fractured eye socket and mild bruising to his upper left leg.
12 Mr Elevenson's mobile phone was handed to the police by Ms Kahu on 7 February 2020.
Arrest, execution of search warrant, and the offending subject to the three summary charges
13 On the morning of the 30 December 2019, police attended the boarding house and executed a search warrant. You were found by the police hiding in a walk-in robe in your bedroom. You were arrested and handcuffed. During the search, you struck Detective Sergeant Carmelo Leonardi to the side of his body with your right elbow and tried to headbutt him. You were restrained and the search continued. Detective Leonardi did not suffer any injury. (Summary Charge 5)
14 The black extendable baton, used during the armed robbery, was located and seized. The police also found and seized four boxes containing 92 shotgun shells. (Summary Charge 7)
15 At the time of your arrest, you were subject to a family violence intervention order in respect of which your now ex-partner, Ms Kahu, was the affected family member. The order prohibited you from being within 200 metres of an address where she resided. Your presence at the house was clearly in breach of that condition. (Summary Charge 9)
Police Interview
16 You were taken to the Dandenong police station where you were interviewed that same day. In relation to all the questions concerning the armed robbery, you exercised your right to make 'No comment'. You denied possession of the shotgun shells saying that you had no knowledge of their presence in the house. You also denied assaulting Detective Sergeant Leonardi. You did, however, admit breaching the intervention order by your presence at the boarding house, saying, 'I'm not supposed to be there.'
17 Since your arrest on 30 December 2019, you have been on remand in custody.
Prior Criminal History
18 Mr Tumai, you have admitted a criminal history that dates back to 17 January 2017. Your history reveals a total of eight court appearances in the Magistrates' Court. On 17 January 2017, you were sentenced to a fine without conviction for an offence of entering a private place without authority or excuse. On 21 June 2017, you were sentenced to an adjourned undertaking without conviction in respect of an offence of possessing a controlled weapon without excuse. On 13 November 2017, you were convicted and fined for offences including possessing a controlled weapon without excuse, possessing a dangerous article in a public place, possessing cartridge ammunition without a licence or permit, and a number of driving offences.
19 On 19 February 2018, you were convicted and fined in respect of several driving matters. On 16 April 2018, you were convicted and fined for an offence of theft of a motor vehicle. On 12 July 2018, you were placed on a six-month community correction order for a number of driving offences. On 10 October 2018, for possessing methylamphetamine and another drug of dependence, you were convicted and fined.
20 On 4 June 2019, in addition to being resentenced for contravening the community corrections order imposed on the 12 July 2018, you were sentenced in respect of trafficking methylamphetamine, reckless conduct endangering serious injury, unlawful assault,[5] two offences of attempted theft, and possessing a prohibited weapon without exemption or approval. In respect of this offending, you were sentenced to a total effective term of five months' imprisonment and a 12-month community corrections order. The order included a condition that you be assessed and treated for drug abuse. You were also placed on a 12-month good behaviour bond in respect of an offence of using a carriage service to menace.[6] Having been released from custody, you commenced the community corrections order on 7 October 2019. The offending in respect of which I am going to sentence you occurred whilst you were subject to the community corrections order and whilst subject to the good behaviour bond.
[5] Ms Kahu was the victim of this assault.
[6] Pursuant to s 20 Crimes Act 1914.
21 You are not being sentenced for your prior offending; however, your prior history is relevant in the assessment of your rehabilitation prospects and in imposing a sentence that specifically deters you from re-offending.
22 ASSOCIATE: Sorry, Your Honour. The DPP counsel have dropped out. Do you wish to continue or wait until they return to the meeting?
23 HIS HONOUR: I will continue. There is a solicitor present.
24 ASSOCIATE: Thank you.
Victim impact
25 HIS HONOUR: Mr Elevenson has chosen not to make a victim impact statement. However, the armed robbery would have been a frightening and distressing experience for him. The force that you used upon him caused him injuries for which he required medical treatment.
Personal circumstances
26 In relation to your personal circumstances, your counsel relied upon Mr Warren Simmons' psychological report dated 2 April 2019, Exhibit 1.[7]
[7] Exhibit 1.
27 You were born in Huntly, a town in the North Island of New Zealand. Your father worked as a schoolteacher and your mother as a nurse. You have three younger siblings. You had an older brother who passed away at the age of two. Growing up, you were particularly close with your mother. Your father was a strict disciplinarian and would hit you and your brother with a belt if you misbehaved. Your parents and your siblings continue to reside in New Zealand.
28 At school, you enjoyed playing sport. You left school having completed Year 11.
29 At about the age of 10, you and a male cousin of yours were sexually assaulted, on a single occasion, by an older cousin, aged in his twenties. The matter was not reported to the police, but you told your father who then assaulted the offender.
30 Around the age of 15, you ran away from home and went to live with your girlfriend. You worked, intermittently, in vegetable gardens until the age of 20. You then worked on a stock farm for two years before moving to South Auckland with your girlfriend. There you worked as a concreter. In the last decade, you have worked as a truck driver.
31 From the age of 16, you have been in some eight relationships of varying lengths lasting between three and 15 years. Three of those relationships produced children. You are a father to five children aged 24, 21,17, 14, and 10. All of them, except the youngest, reside in New Zealand. I was told you are also now a grandfather.
32 You first moved to Australia in 1998, returning to New Zealand in 2000. You commenced your last and longest relationship, with Ms Kahu, in 2005. In 2012, you came back to Australia with Ms Kahu. Together, you have a son who is now aged 10. During your relationship with Ms Kahu, you were working as a truck driver. Due to drug use, in 2015, you lost your employment and your relationship with Ms Kahu broke down. You ended up being homeless. The instability in your life led you to committing crime.[8] You and Ms Kahu ended and re-commenced the relationship more than once and were together at the time of this offending. It finally ended following your arrest on the 30 December 2019.
[8] As set out in [18].
33 You have had a significant and long-standing drug addiction. Around the age of 11, following the sexual assault, you began using cannabis. The use of cannabis evolved over time to a daily habit. I am told that you ceased using cannabis in early 2019. Through your teens and early twenties, you have used illicit substances such as mushrooms, LSD, cocaine and amphetamines. About 16 years ago, you began using ice. Since 2014, other than the times you have been in custody, you have used ice daily. In addition, you began drinking alcohol at the age of 12. It became a regular habit until you stopped about five years ago.
34 I have had regard to Mr Simmons' report. The report outlines your background, including your drug use, relationship, and employment history. It also alludes to the traumatic incident of sexual assault that you were the victim of at the age of 10. At paragraph 32 of his report, Mr Simmons states: 'There was clear evidence that Mr Tumai experiences symptoms of Post-Traumatic Stress Disorder, although it was not felt that he necessarily meets all the criteria for a DSM-5 diagnosis at the present time. However, he continues to have intrusive memories which disturbed him. It is certainly the case that this symptom is often the most distressing for individuals, as they often experience many others as being less distressing and disruptive.'
35 Mr Simmons states that the sexual assault has been a factor in your substance use. In particular, the use of cannabis helped block the memories of the abuse you suffered. Mr Simmons opines, that you would benefit from counselling regarding the sexual assault and the associated intrusive memories. You would also benefit from drug and alcohol counselling and relationship counselling.
36 I note Mr Simmons' report was prepared for your court hearing before the Dandenong Magistrates' Court on 4 June 2019. In line with Mr Simmons' recommendations, you were given the opportunity to undergo counselling to address your issues. As a result of the current offending, you, regrettably, failed to take advantage of that opportunity.
Gravity of the offending
37 The court must also have regard to the objective gravity of the offending for which you now fall to be sentenced.
38 Armed robbery is an intrinsically serious offence. This is clearly demonstrated by the maximum penalty fixed by Parliament, namely 25 years' imprisonment.
39 The offence that you committed has many serious aspects to it. Having got up on the morning of the armed robbery, you decided to steal Mr Elevenson's bank card by force. Therefore, some thought had gone into your offending, although I accept it was opportunistic and relatively unsophisticated. In the early hours of the morning, armed with an extendable baton,[9] you entered Mr Elevenson's private room where he was entitled to feel safe. You struck him repeatedly with the baton whilst he was in a vulnerable state, lying down, and initially asleep. It was an unprovoked attack committed in order to steal his bank card and mobile phone. In addition to striking him to the head, you placed your foot on his chest, demanding his phone and his wallet. As a result of your offending, Mr Elevenson suffered injury requiring medical intervention. As Ms Anderson rightly stated, the fact that you had consumed ice and were under pressure with paying additional rent, provides no excuse for what you did. I regard your moral culpability for the offending as high. The summary offences involve you possessing 92 shotgun shells. They involve you assaulting a police officer in circumstances where the officer was going about his lawful duties. It also involves a blatant disregard for a court order which prohibited you from being within 200 metres of the address where your ex-partner resided. All this offending was committed shortly after your release from custody and while you were subject to a community corrections order and a good behaviour bond.
Matters in mitigation
[9] The possession of the baton is an ingredient of the armed robbery and not a separate aggravating factor.
40 I take into account a number of matters raised by your counsel in her oral and written plea submissions.[10]
Guilty plea
[10] Exhibit 1 – Plea Submissions.
41 Your plea was not entered at the earliest opportunity. Several witnesses, including the victim, Mr Elevenson, were cross-examined at a contested committal hearing in the Magistrates' Court on 25 November 2020. Once the case was committed to this court, the matter resolved at an early stage at an initial directions hearing on 11 March 2021. Therefore, I regard your plea as being entered at a relatively early stage. As a result of your plea, you avoided a jury trial where the witnesses would have had to give evidence again, saving valuable court time and expense. Further, your plea has additional mitigatory significance at a time when the County Court is facing a considerable COVID‑19 related backlog of trials.[11]
[11] See Worboyes v The Queen [2021] VSCA 169 at [35] – [39].
42 The question of remorse is more difficult. There was no evidence of remorse at the time of your arrest and interview. You ran a contested committal. However, I am prepared to accept that your plea in this court, at an early stage, indicates some remorse.
43 You have been on remand at Port Phillip Prison since 30 December 2019. Your time on remand has coincided with the commencement and the height of the COVID-19 pandemic. I accept that the pandemic has caused you additional stress and concern not only for your own safety, but also the safety of your family. I have been told that, following a sore throat, you were placed in isolation and underwent a COVID-19 test which returned a negative result. You have endured many periods of lockdown and have had limited access to courses and visits. I accept this has made your period on remand more burdensome. The pandemic is not over and your time in custody following sentence will continue to be burdensome.
44 Having said that, you have used your time on remand, as far as possible, in a constructive manner. I am told you have been a model prisoner and have been working as a level 1 gym billet. You have completed many courses, including courses relating to drug and alcohol addiction.[12] You are currently undertaking a numeracy course. You have been free from drugs since your remand[13] and have been exercising regularly. Not surprisingly, I am told you are enjoying a lucid mind.
[12] Bundle of certificates – Exhibit 3 on the plea.
45 You are a citizen of New Zealand and have permanent residency here in Australia. I raised the issue of deportation with your counsel during the plea hearing. I am told that deportation is not relied upon in any way as a mitigating factor. You have told your counsel that you are not concerned about the prospect of being deported. Other than your son who is residing with your ex-partner, you have no other family in Australia. Your parents, siblings, and children from other relationships all reside in New Zealand. You have no material assets here in Australia.
Relevant sentencing principles
46 General deterrence and denunciation are important sentencing considerations in this case. Armed robbery is an offence that strikes fear into the minds of those upon whom it is perpetrated and is a cause of concern for the community generally. Members of the community should be able to go about their business without being confronted and placed in fear by an armed offender stealing their belongings by force. The sentence I impose must seek to deter other like-minded persons from engaging in this type of conduct and make clear, on behalf of the community, that it will not be tolerated.
47 Given the nature and the gravity of the offence of armed robbery, the fact that you committed it whilst subject to a community corrections order and a good behaviour bond, and your criminal history, there is also a need to deter you from engaging in this or any similar conduct in the future.
48 Protection of the community and just punishment also assume importance.
49 Your counsel, Ms Anderson, and the prosecutor, Ms Maguire, both submitted that your prospects of rehabilitation are at best, guarded. I adopt that categorisation. They hinge very much on your continued motivation to remain free from illicit substances once released into the community. You were given an opportunity in the form of two community correction orders but failed to take advantage.
Sentencing
50 Ms Anderson was realistic in conceding that a term of imprisonment consisting of a head sentence and a non-parole period was the only appropriate disposition.
51 I bear in mind that any term of imprisonment must not be longer than is necessary to achieve the sentencing purposes.
52 Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Tumai, as follows:
53 On Charge 1 of the indictment, armed robbery, Mr Tumai will be convicted and sentenced to a term of four years' imprisonment. I set a non-parole period of two years and six months.
54 On the related summary charges: assaulting an emergency worker (Charge 5), you will be convicted and fined $250; possessing cartridge ammunition whilst not the holder of a licence (Charge 7), convicted and fined $350 and contravening a family violence intervention order (Charge 9), convicted and fined $400.
Pre-sentence detention
55 Pursuant to s18 of the Sentencing Act 1991, the period of 585 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Section 6AAA declaration
56 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had Mr Tumai pleaded not guilty to the armed robbery and been convicted of it, he would have been sentenced to a term of five years and three months with a non-parole period of three years and six months.
Forfeiture and Disposal orders
57 Pursuant to s151 of the Firearms Act 1996, I grant the forfeiture order in relation to the four boxes of shotgun shells (92 shells in total).
58 Pursuant to s77(1) of the Confiscation Act 1997, I grant the disposal order in relation to the black extendable baton.
59 Thank you. Anything arising, Ms Maguire, Ms Anderson?
60 MS MAGUIRE: No, Your Honour. As the court pleases.
61 HIS HONOUR: Thank you.
62 MS ANDERSON: No, Your Honour.
63 HIS HONOUR: Thank you. Ms Anderson, would you like an opportunity to speak to Mr Tumai?
64 OFFENDER: Yeah.
65 MS ANDERSON: Your Honour, I already have a phone call booked with Mr Tumai this afternoon at 3 o'clock. So I am content to speak to him this afternoon.
66 HIS HONOUR: Thank you very much.
67 MS ANDERSON: Thank you, Your Honour.
68 HIS HONOUR: All right. I will now rise.
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