Director of Public Prosecutions v Tupou

[2018] VCC 78

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01790

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAC JUDAH TUPOU

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 February 2018
CASE MAY BE CITED AS:	DPP v Tupou
MEDIUM NEUTRAL CITATION:	[2018] VCC 78

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L Gillihan	Office of Public Prosecutions
For the Accused	Mr N Jane	Robert Stary Lawyers

HIS HONOUR: 

1Isaac Judah Tupou, you have pleaded guilty to one charge of home invasion, one charge of affray and one charge of causing injury recklessly.  Those crimes carry maximum penalties of 25 years, five years, and five years respectively.

2Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample the police may use reasonable force to take it from you.

3The circumstances of this matter are unusual indeed.  You are 18 years of age and were 18 years of age at the time of the offending.  You are clearly a youthful offender.  You have no prior convictions or court appearances of any description.  When this offending occurred you were within a couple of months of having been within the jurisdiction of the Children's Court and I note that your 17-old year brother in the Children's Court received a non-conviction disposition.

4You have pleaded guilty at the earliest reasonable opportunity, made full admissions to police, and I take that into account, as well as your obvious profound remorse at what you have done.  You must also, of course, get the utilitarian benefit of that plea of guilty.

5A letter of apology was sent by yourself earlier in the proceedings and I accept that that apology is genuine.  You have no subsequent matters and no matters pending.

6You have in recent times commenced an apprenticeship and I have a reference from your employer commenting on your capabilities.  You have very strong family support and indeed your grandparents have flown from Tonga to be here to support you.  It is against that background and some other matters which I will describe in a moment that this offending occurs.

7In May of last year you were concerned that your girlfriend and still girlfriend was being bullied or threatened or badly spoken of.  On 19 May 2017, a party was being held in an address in Mitcham.  A group of Year 11 students were involved in that.  At approximately 11.30 pm about eight to ten uninvited males led by you entered the premises through an unlocked door.  Some of the males were wearing bandannas to cover their faces.  You led the group through to the kitchen area leading to the back deck and began demanding to see David.  You were holding a mobile phone with an image of David on it.  He was not present and you then began asking for Julian and Tailen.

8Tailen was in the backyard and was confronted by you.  He was threatened about a Facebook Messenger group chat.  He was not assaulted and was able to get out of the premises.  Another male was singled out by you and he was punched in the face by another person.  A Jonathan Hardman intervened to try and stop what was occurring and you essentially hit him.  He was punched and kicked to the ground and that gives rise to a charge of recklessly causing injury.  The entry to the premises is obviously the home invasion charge. 

9A man called Smith was being kicked and stomped, and as a result of that he suffered a broken jaw.  I take that into account insofar as the charge of affray is concerned because of the fear which that would invoke in others.  You are not, of course, charged with the assault on Smith himself.  As that was occurring you picked up a large wooden seat and threw it.  That is part of the affray as well.  When he was hit by that chair, the group who you were with fled.

10The parents of a number of the guests were called, an ambulance arrived, and Mr Hardman was, as was indicated, the subject of an assault charge.

11You were arrested, you were taken to the police station where you were interviewed, and you made a full and frank confession to the offending that had taken place.  You explained in the interview what the motivation was and that has been your position since that night.

12The offending has to be regarded as serious; it involves a confrontational home invasion.  In the normal course of events it would call for the application of general and specific deterrence, as well as denunciation, and obviously there must be an appropriate punishment.  Gaol would often be the result of offending such as this or, for someone of your age, a period of time in a Youth Justice Centre.  However, your particular circumstances in the lead up to this matter, as I have indicated, are unusual to say the least.

13Tendered on your behalf were a number of references and I have taken all those into account.  Importantly, tendered on your behalf was a report from a Heather Thompson, a counsellor.  She in eloquent terms describes what had occurred to you in the lead up to all this.  It should be pointed out that the references speak of you as being a very respectful, very polite, and very helpful young person.  There had been nothing in the past before January of last year which would have suggested that you would have in any way, shape or form offended in this way.

14Further, that description of the events that occurred should be prefaced by the fact that the girlfriend who you saw yourself as defending, her sister had committed suicide because of bullying exactly 12 months before this offending took place.  I will simply, because it is done so succinctly, read from the report of Heather Thompson.  She says,

"Isaac was one of the young men involved with the Bourke Street incident early in 2017.  Isaac was 17 at the time of the incident.  He and a cousin were the boys who attempted to stop the vehicle before the driver proceeded to Bourke Street.  He was on his way to a church youth group sporting event.  He was near Federation Square when he became aware of a driver driving erratically and causing people to run for safety.  Isaac and his cousin tried to stop the driver but were unsuccessful.  They felt that people were going to be harmed unless someone did something about stopping the vehicle.  No one else was doing anything to stop the vehicle.  Isaac felt disappointed at the time that he couldn't stop the vehicle.  He only became aware of the outcome of the driver's actions later in the day when he saw himself on TV as part of the media coverage of the events in the city and his father called to talk with him about what had happened.

Isaac was overwhelmed with distress when he realised he had not been able to stop the car and that six people had died.  At the time he was treated by the media and many others as a hero but he felt overwhelmed with regret that he had not been able to prevent the murders of the six people who died.  His family decided it would be in the best interests of the Australian community for him to discuss what had happened as a way of helping people come to terms with the horrific event.  They also felt it was good for their Islander community that two young men were acting in a manner that indicated their sense of duty and community wellbeing.

He did dozens of media interviews for Australian and national networks.  There was no monetary return for any of these interviews; however, he continued to feel badly about what had happened and tried as much as possible to avoid people.  Whenever TV footage was replayed of him trying to stop the car he would become traumatised over and over again with the memory of what had happened and that he could not stop harm from occurring.  This continues to occur whenever the footage is shown or when it is discussed in public.

As a result of this incident Isaac has experienced symptoms of depression and anxiety.  He feels deep guilt that he was unable to prevent harm and that people died.  The vision of the broken pram on the footpath and other images of that event continue to haunt him.  Isaac felt that he should have been able to stop the car and if he had, six lives would not have been lost".

15That is a very heavy burden for a 17-year old boy to carry.  The report goes on to say:

"His life was significantly impacted by this event.  He was not provided any counselling by the police or any other service.  His family were unaware of support that may have been available to him.  He initially was unable to return to school due to his trauma.  He secured an apprenticeship that did not work out but then successfully secured and commenced another apprenticeship,that was in June, where he is currently working and benefiting from routine and a sense of purpose.

This is significantly helping him to manage his depressive symptoms and is a distraction from issues of the past and anxiety about the outcome of this matter that is before the court.  It was around this backdrop of events that the fight occurred where again Isaac was trying to prevent harm to his girlfriend who was being bullied.  The girlfriend's sister had died by suicide just 12 months prior to the event.  She, too, had been bullied".

16In other words, a young man who was doing his absolute best in what must have been a frightening situation has had to carry that burden.

17As I indicated already, there is absolutely nothing else in your history to suggest that you would be guilty of or would commit the sort of offending that has taken place here.  It is a gross error of judgment but it is an error of judgment in my view of effectively a child.  You have done everything, as has your family since, to endeavour to repair the damage.  As indicated, there has been an apology sent and an article in the newspaper was tendered which indicates that even a couple of days after the event you were telling journalists that you were plagued with guilt.  It is very, very unfortunate that people were not aware of the potential seriousness of what in all probability is a post-traumatic stress disorder and that nothing could be done.

18I do not in this situation intend to read from all the references that were tendered on your behalf, just simply the one that has been tendered from your father.  He very eloquently describes the impact that this has had on you, your family, and your extended community.  He points out or tells me, and I accept this, that you have always been a caring, loving and a gentle person who used to babysit people's children when they were away.

19You were brought up with younger siblings and you have always been of a protective nature with a sense of empathy for those most vulnerable.  "His teachers", he says, "used to comment on many occasions about how students who were victims of bullying or not as social as other children would be drawn to him because of their sense of acceptance, safety, and Isaac's non-judgmental way about him".

20He then points out, again very succinctly, the things that you have done since; that is the writing of the apology, you have undergone and completed a mental health plan with a doctor, you have completed an anger management course and you are still receiving professional counselling from the person that I have referred to.

21In the time since you have got your probationary licence and you now have your own vehicle.  As he points out, you have the apprenticeship, you have been on strict bail conditions and have not breached any of them.

22You, as is clear in this case, come from a very strong and very protective family and it is to be hoped, and I have the total confidence that this glitch in your life will not be repeated.  The prospects of your rehabilitation are excellent and the risk of you reoffending in my view is very low indeed.  You are receiving the appropriate treatment now and for me, in my view, to impose any form of detention would simply be unfair.

23I have had you assessed for a community corrections order and the Crown do not demur from that position.  That then gives me some concern in that you will be doing work hours, and they have to be significant because of the seriousness of the offending that occurred, and you also have the mental health condition which you are complying with effectively in any event.  I do not really want a young man such as yourself being involved with other people during work hours, but unfortunately in a situation such as this I really do not think I have any choice other than to impose work hours.

24Accordingly, on those charges you will be placed if you agree on a community corrections order.  It will be for a period of three years.  There will be 250 work hours and there will be a mental health condition as well as supervision.  Unfortunately, bearing in mind your age and lack of prior convictions, it seems to me that the home invasion crime at least means that it would be inappropriate for me to impose this community corrections order without conviction and accordingly it will be with conviction, which is a significant punishment in itself for one so young.

25The only other thing I am going to put on that is that any hours spent in mental health treatment are to be counted as work hours under that component.  I should also point out that upon completion of the hours if the mental health aspects are in place then the matter can always be brought back before me to be reviewed as to whether it is necessary to continue with the order.  So get the hours done and see how you go.

26All right, that order is made.  I simply say in conclusion to you, Isaac, that you have learned from this, I have no doubt, that violence is not a solution to anything.  I can understand totally how in your situation all this arose.  You come from a very strong, very proud family; honour them.

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