Director of Public Prosecutions v Upokotea-kaukura

[2016] VCC 258

Pages 1 - 7   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02116

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR UPOKOTEA-KAUKURA

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 March 2016
CASE MAY BE CITED AS:	DPP v Upokotea-kaukura
MEDIUM NEUTRAL CITATION:	[2016] VCC 258

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams	Solicitor for Office of Public Prosecutions
For the Accused	Mr D. Gibson	Victoria Legal Aid

HIS HONOUR: 

1Mr Upokotea-kaukura, you may remain seated until I ask you to stand.  Today, Victor Upokotea-kaukura, you pleaded guilty to one charge of causing serious injury recklessly to your eight-week-old son.  The maximum penalty for this offence is 15 years' imprisonment. 

2Tendered as Exhibit A on the plea was the summary of prosecution opening that set out the facts that found the charge.  In the summary, after returning home from a family function on Saturday, 23 May last year, you eventually went to bed at about 1 am.  You had the care of your eight-week-old son as his mother had elected to remain at the family function. 

3At 3 o'clock in the morning, the child woke crying.  You attempted to settle to him but failed in that respect, until you gave him a bottle of formula at about
4 o'clock.  Your son went to sleep but woke shortly thereafter and began to cry once more. 

4You became frustrated and angry and shook your son vigorously.  You also struck the child to the back and front of his head with an open hand.  Eventually, the infant cried himself to sleep and you fell asleep shortly thereafter. 

5The rest of Sunday, 24 May was normal, in that you cared for the child appropriately and fed him every four hours as was the appropriate regime at that time.  Your partner returned home on Monday, 25 May, and noticed nothing untoward with the child.  The following day, 26 May, your partner took your son to see a maternal and childcare nurse and reported nothing untoward about that visit. 

6Upon your partner's return home, you fed the child and noticed that his arm was twitching.  You drew this fact to attention of your partner, Frances.  Symptoms of this kind continued to occur throughout the balance of the evening. Eventually this caused you and your partner, to attend at the Werribee Mercy Hospital, at about 1 o'clock on 27 May 2015. 

7Upon assessment, the child was transported to the Royal Children's Hospital.  Upon examination, it was found that your son had suffered a mixed-density subdural haemorrhages of the brain, extensive retinal haemorrhages in both eyes and cerebral ischemia hypoxia and focal seizures as a result of your assault.  The long-term prognosis for your son must be viewed as guarded.  See Exhibits B and C on the plea. 

8Police attended at the Royal Children's Hospital at about 6 pm that day.  At 6.45, a tape-recorded record of interview commenced with you at the hospital and continued in the police car until you arrived at the Footscray police station, at which point there was a short break and it was recommenced at or about 8.28 pm. 

9During the course of the record of interview, you made full and frank admissions as to your conduct.  You were charged and remanded in custody and remained so for 107 days.  You were released on bail under the Court Integrated Services Program - see Exhibit 3.  You progressed well under that program and as part of it, you were referred to other services.  See Exhibits 5 and 6. 

10You pleaded guilty at committal that proceeded by way of hand-up brief on 28 November 2015.  Since that time, you have complied with onerous bail conditions.  You reside with your mother and have obtained full employment since being released on bail.  See Exhibit 4.  You attend your local church.  You have not seen your son since the day of your arrest.  Your relationship with his mother is at an end. 

11The issue of supervised access to your son will be determined by the Children's Court some time in the future. 

12You are 22 years of age and were so at the time of your offending.  You are not an unintelligent man, having passed the Victorian Certificate of Education (VCE) despite some obstacles being placed in your way. 

13You are a native of the Cook Islands.  Your parents separated when you were three and shortly thereafter, your mother left for Australia and you did not see her for another 11 or 12 years. 

14You were brought up by your maternal grandparents.  Your grandfather was, and I believe still is, a strict disciplinarian.  You spent some years in New Zealand and a good portion of your secondary education was received there. This coincided with your grandmother's treatment for cancer.  She died in August 2007 which has affected you profoundly. 

15After your grandmother's death, you were sent to live with your mother in Australia when you were aged about 15 years.  Your transition to life in Australia was not a smooth one.  Trouble at school and the abuse of alcohol and cannabis marked your time here. 

16After obtaining your VCE, you returned to New Zealand and resided with your grandfather.  You obtained work but still abused alcohol and cannabis.  Whilst in New Zealand, you obtained a qualification in information technology.  Your grandfather returned to Australia and you travelled back to the Cook Islands in 2013 where you met Frances, the mother of your son and victim. 

17You came to Australia with your partner in February 2015 and together you resided with your mother in Springvale. 

18After the birth of your son, you fell out with your mother over her opinion of your partner's ability to care for your son.  You left Springvale and your employment and went to live with extended family in Werribee, the scene of your offending. 

19You had no work and became the primary carer for your son.  It is in these circumstances that you offended against him. 

20By Exhibit 2, a report dated 3 September 2015 of psychologist Ms Lechner, you were assessed as "immediate/high" risk of violent behaviour.  Of course, that opinion was subject to ongoing therapy to reduce the factors that brought about that risk assessment.  Since your release from custody, you have addressed these factors. 

21Your crimes are grave.  It is the type of crime that shocks the community.  You breached what could be regarded as the most sacred trust that any adult can take on – namely the responsibility of parenthood.  This offending calls for particular consideration of the sentencing principles of just punishment, denunciation and general deterrence.  Having said that, you are a young man without prior convictions.  You made full and frank admissions to the police on interview and in doing so, provided information to the police concerning your offending that they otherwise would not have uncovered - namely your striking of the infant. 

22You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you from that plea - namely, that it is some evidence of your remorse of which I am satisfied; and that it has utilitarian benefit. 

23You have spent 107 days in custody, part of which was in lockdown owing to a prison riot.  You have made the most of your period on bail to address your personal difficulties or traits that contributed to your offending. 

24You are in work.  You have stable accommodation with your mother, to whom you have reconciled; and you have sought the solace and support of your church.  You have lost the ability to see your son and must satisfy a court that supervised access ought to be permitted.  You have lost the relationship with your partner, the mother of your son, your victim. 

25I regard your prospects for rehabilitation as good and further, that they should be fostered by the sentence that I impose upon you.  To that end, I had you assessed for suitability for a community corrections order and you have been assessed as suitable. 

26By this sentence, I must denounce your conduct.  I must punish you and deter you and others from committing crimes of a same or similar kind.  I must look to your rehabilitation.  Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.  Will you please stand?

27I sentence you to 107 days' imprisonment together with a community corrections order of three years' duration.  I can only sentence you to a community corrections order with your consent.  Do you consent?

28OFFENDER:  Yes, Your Honour. 

29HIS HONOUR:  The community corrections order of three years will be with conditions, namely, that you undertake 300 hours unpaid community work; that you be subject to the supervision of the Secretary of the Department or his nominee; that you undergo treatment and rehabilitation in respect of your mental health; and that you undergo treatment and rehabilitation in the form of programs that reduce your risk of re-offending.  I declare that you have spent 107 days by way of pre-sentence detention. 

30Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years' imprisonment with a non-parole period of 18 months' imprisonment.

31Apart from the ancillary orders, are there any other matters that need to be dealt with?

32COUNSEL:  No, Your Honour.

33HIS HONOUR:  Then, you may sit down.  Please, sit down.. My associate will bring you the document that sets out your obligations under the community corrections order. 

34Would you please stand up?  I have sentenced you to 107 days of imprisonment.  You have already served those 107 days, so you will be permitted to leave this court today.  You will do so under a community corrections order that will last for three years from today. 

35There are a number of conditions of that order that are set down by statute and you will be provided with this document that sets out those conditions.  But in addition to that, I have placed further conditions.  That is, that you must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager.  If you fail to comply with this order, the Secretary of the Department of Justice or his delegate may give you a direction to perform additional hours of unpaid community work, in accordance with the Sentencing Act 1991. In the alternative, he may breach you which brings you back to me.

36The next order or condition is that you must be under the supervision of a community corrections officer through the period of this order, which is three years.  Further, you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. 

37If you breach this order by re-offending, you come back to me and you will almost certainly go to gaol. 

38I intend to grant the application for a forensic sample under s.464ZF(2) of the Crimes Act.  The forensic sample will be a scraping of your mouth.  I grant that because of the seriousness of the circumstances of the offending warrant the order and the granting of the order is in the public interest.  Whilst your rehabilitation is only in its early stages, there are aspects of your personality and upbringing that in my opinion, make the risk of further offending real. 

39I need to inform you that if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Victoria Police, then the sample taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. 

40The form of the order that I have granted means that you need to attend upon the Springvale police station for the taking of that sample, and that is expressed in a rather ham-fisted sort of a way, so I will explain it to you.  You are under an obligation to report to the officer-in-charge at the Springvale police station within a period of 28 days commencing four weeks from today.  So, a period of four weeks passes, and then in the next 28 days you have got to front to the police station at Springvale for the purposes of this sample being taken.  Do you understand?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  You may be seated.  Mr Upokotea, you can come out of the dock and sit behind your barrister.

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