Director of Public Prosecutions v Tupou (a pseudonym)

[2023] VCC 1521

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

THEO TUPOU[1]

[1] A pseudonym

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 April 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v TUPOU (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1521

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:                    Sentencing – make threat to inflict serious injury, extortion with threat to destroy property, burglary, theft, home invasion, common assault

Legislation Cited: s5(2H)(a) Sentencing Act 1991, s6AAA Sentencing Act, Migration Act  1958

Cases Cited:Bolton v The Queen VSCA 342 - 46 VR 308, Haamid v The Queen [2018] VSC 330

Sentence:Imprisonment, total effective sentence 3 years imprisonment, non-parole period 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Paganis	Mr G. Martin, Office of Public Prosecutions
For the Accused	Mr P. Chadwick KC Mr M. Kowalski	Mr G. Balot, Balot Reilly Criminal Lawyers

HIS HONOUR:

1Theo Tupou[2] you have pleaded guilty to one charge of making a threat to inflict serious injury.  One charge of extortion.  One charge of burglary. 

[2] A pseudonym.

One charge of theft.  One charge of home invasion.  And one charge of common assault.

2You have also pleaded guilty to the related summary offence of unlawful assault.  The facts of your offending are set out in Exhibit A the prosecution plea opening.  Your counsel informed me I could treat the document as an agreed statement of fact.  I have incorporated that into these reasons for sentence.  And I sentence you on the basis of the facts set out therein.

3Very briefly stated, between 29 January 2021 and 10 February 2021, you threatened to seriously injure a Mr Santoso[3].  You threatened to burn down his house, you burgled his house, stole his car keys and then seriously assaulted him.  And assaulted his next-door neighbour during a home invasion on his neighbours house.

[3] A pseudonym

4This crime spree was aimed at recovering a $10,000 debt Santoso owed to one Ranjit Singh[4].  The full circumstances are clearly set out in Exhibit A and need not be repeated in these sentencing remarks.  You told Santoso that you were collecting the debt for Singh.  You told him that you would come to his house if he didn't pay and,

'You won't be able to talk as much as you are talking now.'

[4] A pseudonym

5You subsequently told him by telephone,

'That's what I do for a living, I collect money from people who don't pay up.'

6You demanded an additional $10,000 on top of the debt or,

'I'm going to burn your house down, and if I come today, I'll put you in hospital.'

7Two days later you and another man went to Santoso's house, disabled the power and CCTV footage, forced open the front door, stealing car keys from the kitchen.  Santoso was not at his home.  You saw him at his neighbours, you chased him into his neighbour's property, punching him and kicking him.

8When the neighbour tried to intervene, he was punched twice to the face.  Santoso suffered a broken nose, concussion, bruising, swelling, pain, and tenderness.  You threw away the car keys and decamped. 

9You rang Santoso again some days later, threatening to send,

'Those boys back again.'

10You were arrested on 4 March 2021.  A committal hearing was conducted in April 2022 and witnesses were cross-examined.  You pleaded guilty to these offences in October 2022 after a directions hearing.

11These offences are serious offences as demonstrated by the maximum penalty set out in Exhibit A. Significantly home invasion has a 25-year maximum penalty and is a schedule 2 Sentencing Act offence. The court is required to impose a term of imprisonment and a non-parole period for that offence unless you meet one of the exceptions set out in s5(2H) of the Sentencing Act.

12Significantly s5(2H)(a) reads,

'Unless the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence.'

13The evidence establishes that you have made two purported can
say statements to the police.  The first was a statutory declaration dated
29 March 2023, Exhibit 4.  In that document you state,

'The you were requested by Singh to recover the debt.  And nominate one Elijah Kumar[5] as the man who committed the home invasion with you.'

[5] A pseudonym

14You had refused to name your co-offender in your interview with the police.

15Police were aware of Kumar’s identity early in their investigation.  Phone records exposed him.  He died of cancer and his funeral was held in March 2023, days before you nominated him in Exhibit 4.  The first can say statement is of little, or no value.

16Your then counsel, Mr Kowalski appeared before me in April this year.  He realised its lack of value and the plea was adjourned so that a better statement could be provided to the police.

17Exhibit 5 is a 28 paragraph un-signed statement that was subsequently provided to the police.  That unsigned statement outlines in detail what you allege was Singh’s involvement in your offending. 

18It's clear to me that it is crafted to paint you in the best possible light, some of it is simply clearly false and in particular paragraph 17.  You indicate that you would give evidence against Singh.  The prosecution argue in Exhibit B the police are convinced that your first statement is useless.  And that your second is of little value because your purported conversations with Singh cannot be corroborated.  The prosecution argue that your second statement was made only after the first was rejected.  And that there is no value in obtaining an undertaking to give evidence against Singh or them prosecuting Singh.

19Whatever the prosecution position may be about prosecuting Singh.  I am of the view that your evidence as set out in Exhibit 5 would be of assistance if Singh were prosecuted. 

20As I discussed on your plea, your evidence would assist other evidence, such as Santoso's evidence of conversations with Singh.  And telephone records of Singh’s contact with you.

21Accordingly, I am satisfied that you have assisted in the investigation of an offence. Even if the police do not accept that assistance. It follows that in my view, the mandatory sentencing provisions in relation to schedule 2 offences do not apply in your case.

22That does not mean, however that the court is required to impose some other sentence.  It may well be that a consideration of the gravity and nature of the offending.  And the consideration of all the factors mitigating your offending, dictate that in all the circumstances, a term of imprisonment, an imposition of a non-parole period may still be required.

23Turning to your personal circumstances, you are now 32 years of age, being born in New Zealand in November 1990.  You and your family moved to Melbourne in 1994.  You have no prior convictions, no issues with drugs or alcohol.  And no subsequent or outstanding police issues.  You are married with four children aged between 10 years and 13 months.

24You were educated to year 12 level and grew up in a loving, caring and religious family.  You have two younger sisters.  Your complete history, are set out in Exhibit 2, the report of psychologist Jeffrey Cummins.  You have no psychological or mental health issues.  You expressed remorse for your conduct to Mr Cummins.

25You have worked hard throughout your life.  You did two years of a diploma of education at TAFE after leaving school.  And worked in a warehouse for some seven years.  You then worked as a concreter for two years until in 2019 you established your own business.  That business has been successful.  You employ 10 people and a number of sub-contractors.  I was told that last financial year your company turned over $1.5m and you expect to turn over $2m this year. 

26You pay yourself a hundred thousand dollars a year.  And the company makes a further hundred-thousand-dollar profit above that sum.  Your counsel filed written submissions, Exhibit 1.  And senior counsel Mr Chadwick KC made helpful submissions on your plea.  The thrust of those submissions was that the court should impose a community corrections order for your offending. 

[6]Bolton v The Queen VSCA 342 - 46 VR 308

Mr Chadwick relied on paragraph 131 of Bolton v The Queen VSCA 342 - 46 VR 308[6] in support of that submission.

27Alternatively, he argued a combination sentence of a short prison term and a community corrections order would be appropriate for your offending.  He correctly categorised your home invasion offence as a mid-level example of that offence.  There was substantial planning and pre-medication involved.  Threats and actual violence employed.  On the other hand, the home invasion was of short duration and did not involve weapons.

28He warned that the court should be alert to avoid double punishment for the home invasion and the corresponding assaults.  And I am careful to bear that warning in mind in sentencing you.  I take a number of matters into account in your favour in sentencing you.

29I accept that you are entitled to a reduction in sentence to reflect your assistance to the police.  Even if the police do not want that assistance.  I have considered the matters set out in Haamid v The Queen [2018] VSC 330[7] as is repeated and set out in Exhibit 1 in determining the extent of that discount.

[7]Haamid v The Queen [2018] VSC 330

30Secondly, I take into account your pleas of guilty.  Although those pleas were not entered at an early stage and after a committal where Santoso was
cross-examined.  You are nonetheless entitled to a reduction in sentence to reflect those pleas of guilty.  You have spared the community the time and expense of a criminal trial.  And your victims the need to give evidence at that trial.  The value of your pleas of guilty is increased because of the effect
COVID-19 has had upon our legal system.  You have facilitated the course of justice.

31Thirdly, I accept that you are remorseful for your crimes.  Your pleas of guilty, your interview with Mr Cummins and the reference material tendered all evidence that remorse.

32Fourthly, I find that your prospects of rehabilitation are good.  Your work history, family support and character references support such a finding

33Fifthly you have no criminal history and fall to be sentenced as a man of prior good character.  You have continued to demonstrate that good character since your offending.  The character references, Exhibit 3, describe you as a man who is honest and respectful.  You are said to be efficient, reliable and meticulous.  You have strong family and moral values and you have reconnected with your church.  You have a strong work ethic and I accept this offending is out of character for you.  Your wife is highly supportive of you and she described you as a true gentleman, a good husband and father.  I take all the reference material into account in sentencing you. 

34Sixthly I accept that your family will suffer when you are in prison.  That unfortunately is often the case.  I do take into account that your time in custody will be more onerous for you because of your concerns for your wife and children.  There is no issue under the Migration Act[8] you and your family are Australian citizens.  And so there is no spectre of deportation in this case.

[8]Migration Act  1958

35It remains a mystery to me, how a man with your antecedents and abilities could find yourself committing multiple serious criminal offences for the benefit of a man you did not know.  Mr Chadwick could not give me an explanation.  There are many strange factors in this case that I simply do not understand.  I doubt
I have been told the whole truth as to all the matters in this case.  That said,
I draw no inferences adverse to you as a result of my doubts and concerns.

36Home invasion is a particularly nasty crime.  The authorities mandate that such offending must be seen as serious.  And parliament intends that usually terms of imprisonment with a non-parole period will be imposed for such offending.

37Your burglary and theft offences are less serious and low range of objective gravity.  Your threat and extortion offences are of a much more serious nature.  Although no weapons were used, your conduct was protracted, escalating, planned and threatening.  I regard the offending as an upper mid-level example of such offending.

38Principles of general deterrence, denunciation and just punishment are the principle sentencing factors in your case.  I have had regard to principles of totality and the need to avoid double punishment and principles of parsimony in sentencing you.

39I have read the cases provided by your counsel and have taken current sentencing practices for offences such as yours into account in sentencing you.

40No victim impact statements have been provided in this case.  And that said, I consider both Mr Santoso and Mr Khan[9] would have been terrified by your conduct.  Your physical presence and the injuries caused distressed both of them.  Your moral culpability was high for this offending, standover tactics, threats and violence cannot be tolerated.  I am of the view that the seriousness of your conduct is such that nothing other than a term of imprisonment is appropriate in your case.

[9]A pseudonym

41The term of imprisonment I must impose means that I cannot impose a combination sentence of imprisonment and a community corrections order.  Your offending is such, too serious.  That is so, even after I have significantly reduced those sentences I would otherwise have imposed, to reflect the mitigating factors to which I have referred. 

42Would you stand up please.

43On all charges, you are convicted.  On Charge 1, making a threat to inflict serious injury.  You are sentenced to be imprisoned for nine months.

44On Charge 2, extortion with threat to destroy property.  You are sentenced to be imprisoned for 12 months.

45On Charge 3, burglary.  You are sentenced to be imprisoned for six months.

46On Charge 4, theft.  You are sentenced to be imprisoned for one month.

47On Charge 5, home invasion.  You are sentenced to be imprisoned for
two years.  And,

48On charge 6, common assault.  You are sentenced to be imprisoned for
12 months.

49On the related summary offence of unlawful assault.  You are sentenced to be imprisoned for one month.

50I order, that six months of each of the sentences imposed on Charges 2 and 6, be served cumulatively on the sentence imposed on Charge 5.  Which I declare to be the base sentence.

51All other sentences are to be served concurrently.

52That is a total effective sentence of three years imprisonment.  And I order that you serve 18 months of that term before being eligible for parole.

53I have imposed a long parole period to reflect your rehabilitative prospects.

54I declare pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty
I would have imposed a term of imprisonment of six years with a non-parole period of four years.

55Are there any other orders required Mr Prosecutor?

56MR PAGANIS:  No, Your Honour.

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