Director of Public Prosecutions v Waipouri
[2025] VCC 325
•26 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01759
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE WAIPOURI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2025 | |
DATE OF SENTENCE: | 26 March 2025 | |
CASE MAY BE CITED AS: | DPP v Waipouri | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 325 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of intentionally causing injury – repeated punches by offender to victim, who was 56 years of age and in a state of poor health due to liver disease and long-term substance dependence – offender frustrated by tensions between the victim and one other resident at offender’s house – offender administered three punches to victim’s face in quick succession followed by two punches to victim’s torso, with victim, at all times, cowering to defend himself and not retaliating – later, on offender’s instructions, victim left the house and soon thereafter borrowed a mobile phone from a neighbour and called 000 to report the assault but stated that he did not want an ambulance – passers-by noted the victim outside a nearby primary school and two people took water to him - one, who observed blood on the victim’s face, asked his wife to call 000 – subsequently, two off-duty police officers who observed victim to be incoherent, with dried blood on his fingers and hands called 000 – victim taken by ambulance to hospital in a critical condition and underwent splenic embolisation but his condition deteriorated and was taken off life support and died some 25 hours after leaving the offender’s home – post-mortem examination revealed multiple bruises to the face, fractures to the nose and to the left seventh rib with accompanying intercostal muscle bruising and large haematoma on the lateral aspect of the lower ribcage, together with lacerations to the spleen – a preliminary expert opinion of Dr Bouwer, who performed the autopsy, noted the cause of death was related to blunt force trauma to the abdominal region and observed injuries, including trauma caused by a broken rib which had perforated the victim’s spleen – offender originally charged with manslaughter, intentionally causing serious injury and intentionally causing injury – in a supplementary report, Dr Bouwer stated that he had found that the victim had an enlarged spleen due to cirrhosis of the liver, which pre-existed injuries found on autopsy – following a contested committal on the cause of the ruptured spleen and death of the victim, offender was discharged on the charges of manslaughter and intentionally causing serious injury and committed to the County Court on the charge of intentionally causing injury to which he pleaded guilty.
Legislation Cited: Sentencing Act 1991, Migration Act 1958 (Cth)
Cases Cited:R v Verdins [2007] VSCA 102, Bugmy v The Queen [2013] HCA 37, Guden v The Queen [2010] VSCA 196
Sentence: 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 3 months, s 6AAA declaration – 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett (Hearing) Mr David Bosso (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr D Cronin (Hearing) Mr Alex Cini (Sentence) | Papa Hughes Solicitors |
HER HONOUR:
1George Waipouri, you have pleaded guilty to one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are outlined in the Summary of Prosecution Opening.[1] The offending took place one week before your 56th birthday. At the time you were single, having separated from your partner and children. You were unemployed and living in a house at Melton and in receipt of unemployment benefits. You sublet three bedrooms at that address to others in order to supplement your income from Centrelink.
[1] Exhibit “A”.
3Your victim, who was also aged 56 years, had been paying you rent to live in one of the bedrooms for approximately seven weeks prior to the date of offending, as had another person, Peter Fitzpatrick, who was 45 years old and suffered schizophrenia and had an intellectual disability. Also, at the time of the offending there was a third person, Berkart Hashim, living in another bedroom at the address.
4Tensions had developed between the victim and Fitzpatrick. At 3.42pm on 2 March 2024, the day of offending, Fitzpatrick had knocked on the door of the victim’s bedroom and then walked away. You then took Fitzpatrick to his own bedroom and encouraged him to stay there and stop annoying the victim.
5At 3.42pm, the victim came out of his bedroom and was standing in his underwear at the end of the hallway, whilst putting on a t-shirt. A short time later, Fitzpatrick came out of his bedroom and walked down the hallway. As Fitzpatrick passed the victim, a verbal and physical exchange took place. My observation of the CCTV footage from the interior of the house[2] shows that, at 2.42.32pm (which is agreed by counsel to be one hour earlier than the actual time), Fitzpatrick walked towards the victim, who was leaning against the wall, and that Fitzpatrick appears to have laid a hand on the victim. The victim then pushed him away. Fitzpatrick then turned to his right at the end of the corridor and was out of view of the camera. There is no audio on the CCTV footage, so it is not possible to ascertain what words were exchanged between the victim and Fitzpatrick.[3]
[2]Exhibit “E”.
[3] The reference in paragraph 13 of Exhibit “A” to “a verbal and physical exchange” is accompanied by a footnote referring to two statements of a Berkart Hashim, another resident at the offender’s house, and the transcript of an audio recording of a conversation between Hashim and police the day after the offending. The latter is largely unintelligible. The description of the prelude to the offending and the offending behaviour, itself, by Hashim in his statement is very much at odds with the content of the CCTV footage, Exhibit “E”.
6Soon after the exchange between the victim and Fitzpatrick, you came into the hallway and punched the victim to the face causing his head to snap backwards and hit the plaster wall. The victim cowered and covered the sides of his head with his arms and, when he looked up, you struck the victim again with right, and then left, punches to the victim’s face. The victim again cowered and used both arms to cover his head. You then punched the victim to the left ribcage area and, according to the Prosecution Opening, gave another punch to the left side of the victim’s head. I here interpolate that, upon watching of the CCTV footage, I observed that, from 2.42.48pm (in fact, 3.42.48pm) to approximately 2.43.01/02pm (in fact, 3.43.01/02pm), you delivered five forceful blows to the victim in quick succession. The last of these blows comprised a second punch to the victim’s torso, rather than his head, as stated in the Prosecution Opening, which appears to be in error in this regard. I note that, in the Ruling of Magistrate Sonnet dated 10 October 2024, he had stated that in his opinion it was open to a jury to find that you punched the deceased twice to the left torso area[4] and that the evidence demonstrated that you “struck the deceased to the torso region with at least one punch (and possibly 2 punches)” in quick succession[5].
[4] “MFI-2”, pages 19 – 20 and paragraphs [25](a)] and [27].
[5] Ibid, page 24, paragraph [38].
7After the fleeting exchange between the victim and Fitzpatrick which I have earlier described, there was no ongoing confrontation between him and Fitzpatrick. At the time that you began to assault the victim, he was not confronting anyone. CCTV footage shows that, immediately before you attacked him, he was simply standing up against the wall outside his bedroom door. There appears to be a very substantial disparity in size and fitness between you and the victim. In the CCTV footage you are seen to move rapidly and purposefully towards the victim and to coordinate your leg movements as you punch the victim swiftly using alternate hands. It is apparent that you have a strong, muscly build compared to the victim. Indeed, photographs of the marks of injuries on the victim show him to have a body which appears to be in a very deconditioned state, with markedly thin arms devoid of any significant muscular development.[6]
[6]Exhibit “F”.
8My observation of the CCTV footage is that, without warning, you delivered a substantial, forceful punch with your right hand to the side of the victim’s head or face such that his head was knocked backwards towards the wall. This was followed up rapidly with a second punch to the victim’s face with your right hand and, then, another rapid punch with your left hand to the right hand side of the victim’s face. While the victim is cowering to protect himself, you are seen to be bending over him and to deliver a short, sharp uppercut to the victim’s torso, followed immediately by an overhand right punch to his torso.
9The assault came to an end when the previously mentioned other resident, Hashim, came out of his bedroom and stood between you and the victim, who then retreated to his bedroom. However, you followed him and ordered him to “pack your bags and get out”. At all relevant times, you were aware that the victim was suffering from drug addiction and needed surgery on his liver and that his legs were very swollen.[7]
[7] Exhibit “A”, page 78, paragraph [37].
10Following your assault of the victim, he packed some of his belongings into a backpack and left your house at 3.54pm. He walked a short distance to a house in the same street and borrowed a mobile phone, from a neighbour, which he used to call “triple 0” at 4.01pm. During the call, he stated that he had been “belted” by “George” at their shared residence, but he did not want an ambulance. He then walked across the street and waited outside Coburg Primary School for the police to attend. Approximately one hour later, the neighbour who had given the victim his mobile phone saw that the victim was still standing outside the school and he took him a bottle of water.
11At 5.02pm, a local resident was approaching the victim and noticed that he avoided eye contact and turned his head to face in the opposite direction. He observed a small amount of blood on the victim’s forehead. At approximately 5.45pm, the same local resident saw the victim still standing outside the school and observed blood on his face and asked if he wanted him to call an ambulance or police. The victim told him that he did not, however, the resident offered to bring the victim a bottle of water and returned home, where he asked his wife to call “triple 0”, which she did at 5.54pm. Meanwhile, at 5.47pm, two off duty police officers saw the victim sitting on the footpath outside the school. They became concerned, as he appeared incoherent and had dried blood on his fingers and hands, and they also called “triple 0”. A short time later, at 5.57pm, the local resident returned to give the victim a bottle of water and noticed the victim sitting on the footpath with his back against the school fence, looking “worse than before”. He called his wife and asked her, again, to call “triple 0” to tell them that they needed to “get there a bit quicker”.
12At 6.20pm, Ambulance Victoria paramedics arrived and transported the victim to Sunshine Hospital, where he arrived at 7.10pm. He was in a critical condition and admitted to the Intensive Care Unit, where he underwent splenic embolisation. Later, at approximately 8.59pm, police finally attended your address in response to the call which had been made by the victim at 4.01pm. Police had not received notification from Ambulance Victoria or Sunshine Hospital that the victim had been admitted to hospital. In a conversation between one police officer and yourself at your house, which was captured on a police body worn camera, you stated that you had kicked the victim out today and confirmed that there had been an assault and an argument between the victim and Fitzpatrick.
13At 11.30am on Sunday 3 March 2024, police were contacted by the victim’s mother, who asked why he was in the Intensive Care Unit at Sunshine Hospital. Police enquiries then established the sequence of events and discovered that the victim was on life support and likely to die. The Homicide Squad was then notified.
14When officers from the Melton Crime Investigation Unit attended your house at 1.10pm and advised you that the victim was on life support, you responded “mate, he walked out of here”. You then went on to state that the victim was “very judgemental, self-centred and cruel” in his interactions with Fitzpatrick.[8] You claimed that “it had been going on all day” and the victim was picking on Fitzpatrick. You claimed that, when you walked in, the victim was standing over Fitzpatrick, who was on the ground. You claimed that there had been two arguments between the victim and Fitzpatrick. You described the victim as a “fucking evil-evil … little man” and stated that the conflict between the two had been going on for five to seven weeks. You then stated “it wasn’t a fight, I just thumped him” and “I had enough of him” and, “I kept threatening him, but I didn’t want to do it". You stated that you slapped him twice to the side of his face, which shocked the victim. You claimed that the slaps had been to his face and to the back of the head with your open hand. You stated “he’s too small … he was supposed to go in for his operation for his liver”. You described him as “a junkie” and stated that “his legs were swollen to buggery”. You then curiously alleged that you had “put him in hospital about three … because he was passing out everywhere”.
[8](Paragraph 37 of the Prosecution Opening erroneously refers to “Fitzsimmons”).
15At approximately 5.00pm on 3 March 2024, the victim’s life support was terminated and the victim was pronounced dead at 5.15pm.
16You were initially charged with manslaughter and intentionally causing serious injury. These charges were based upon a preliminary opinion of Dr Bouwer who performed an autopsy following the victim’s death. He opined that the cause of death was related to blunt force trauma to the abdominal region and the injuries that he observed. These included a fracture of the left seventh rib and accompanying intercostal muscle bruising and a large haematoma on the lateral aspect of the lower rib cage, including trauma caused by a broken rib which had perforated the victim’s spleen. Subsequently, a further report from Dr Bouwer addressed the fact that the victim had an enlarged spleen due to cirrhosis of the liver, which pre-existed your assault of him.
17Prior to a committal hearing, an alternative charge of intentionally causing injury was filed by the prosecution. You indicated an intention to plead guilty to that charge, but disputed the charges of manslaughter and intentionally causing serious injury. A contested committal on the issue of causation of the victim’s injuries and death was conducted in relation to those disputed charges. Following such committal, the presiding Magistrate made the previously-mentioned ruling on 10 October 2024.[9] He found that the evidence of the prosecution, “taken at its highest, demonstrates that (you) struck the deceased to the torso region with at least 1 punch (and possibly 2 punches) in quick succession. The injury to the victim’s liver (sic) involved the application of at least significant force - but it is not possible to make a more accurate assessment than that”.[10] Further, although the Magistrate found that you had some general knowledge that the victim had a liver impairment, he could not be satisfied that, when you punched the victim, you had specific knowledge of the victim’s vulnerability in the torso region such as to appreciate that your acts were exposing the victim to an appreciable risk of serious injury. Given the Magistrates’ findings, you were discharged in relation to both the charge of manslaughter and the charge of intentionally causing serious injury, and committed on the charge of intentionally causing injury simpliciter to which you have pleaded guilty.
[9] Ruling of Magistrate Sonnet published 10 October 2024, “MFI-2”.
[10] Ibid, page 24, paragraph [38].
18You are presently aged 57 years having been born in November 1967 in New Zealand. You have some criminal history in New Zealand dating from 1991 to 2007 (albeit that 6 of 8 offences dealt with in the Otahuhu District Court were committed in 1987). It comprises mostly driving offences, including being an unlicensed driver with excessive blood alcohol in your breath, but, also, two offences of breaching a Periodic Detention Order and two other offences for possession of cannabis, and procuring or possessing a cannabis plant.
19You moved to Australia in approximately 2012 and, since living here, you have appeared before one Court only, namely, Sunshine Magistrates’ Court on 9 June 2022 (albeit that several of the charges which you faced were the subject of old warrants for offending in 2018 and 2019). On that occasion you were convicted of exceeding the speed limit, failing to obey a lawful direction of police, failing to answer bail, using a handheld mobile phone whilst driving, using an unregistered motor vehicle and three charges of driving a vehicle whilst having a prescribed illicit drug in your oral fluid (namely, methylamphetamine). You were sentenced to undertake a Community Correction Order for a period of 12 months, with conditions that you undergo supervision, treatment and rehabilitation by way of assessment and treatment (including testing) for drug abuse or dependency, and also undertake offending behaviour programs as directed.
20You contravened the Community Correction Order made on 9 June 2022. A memorandum to the prosecutor in relation to such contravention, dated 9 March 2023,[11] noted a recommendation by Correctional Services that your Order be cancelled. The memorandum stated that you failed to report within two working days of the Order being made and contact was only established when your case manager contacted you. You failed to attend seven out of ten scheduled supervision appointments and, when your case manager attempted to re-engage with you via text messages, phone calls, emails and by contacting your emergency contact, she was unsuccessful. You had been referred to ACSO/COATS for an assessment appointment on 18 August 2022, but failed to attend. You had been provided with information so that you could book yourself in to attend a Road Trauma Awareness Program, but you failed to do so. You were deemed suitable for the LINCS Program,[12] which was scheduled to begin on 7 December 2022. However, that service was unable to notify you due to you having ceased contact with Correctional Services. The prosecutor, Ms Duckett, advised that, on 6 March 2024, you were brought before Sunshine Magistrates’ Court for contravention of the Community Correction Order, by which date the order had expired. You were convicted of the contravention and sentenced to one month imprisonment (by which stage you had already been remanded in custody for the subject offending).
[11]Part of Exhibit “3”.
[12] LINCS is a program run by Relationships Australia for medium-to-high risk offenders in order to support them in completing their Community Corrections Orders by developing pro-social skills and re-directing their lives in a positive way.
21In a plea on your behalf, Mr Cronin told the Court that you were part of a Māori family, the ninth child of your parents. The eighth child had died as a baby. The history which you gave to Ms Mynard, psychologist, embodied in a report dated 22 January 2025,[13] was relied upon by your counsel. You described to her that your father was a “jack of all trades” and you grew up with a good work ethic. He died in 2000, only six months after he had been diagnosed with prostate cancer. At this stage you would have been approximately 32 years of age. You described being very scared of your mother, whom you claimed was “heavy handed” and would physically strike you with objects or punch you. You stated that you were overweight and your father would emotionally abuse you by belittling you.
[13]Exhibit “1”.
22You claimed that all of your family were alcoholics and you had begun drinking from your early teens, mostly binge drinking on weekends to the point where you would black out. You stopped drinking at age 28 years and ultimately gave up alcohol some 17 years after that. However, you continued to smoke cannabis but ceased this about 10 years ago, although you began using methylamphetamine. The latter was allegedly in the context of your 19 year old daughter having died in either 2010 or 2012.[14] Your daughter had apparently gone to the beach with a friend one night, had an argument with the friend, and then sat in the middle of the road and was run over by a car and killed. You told Ms Mynard that you were too overwhelmed to go to her funeral and have never recovered from her death, “wailing in [your] sleep”, waking up in tears and feeling very distressed and, when driving as a truck driver, would sometimes pull over to the side of the road and sob.
[14] Ms Mynard’s report at page 4, paragraph [31] states that the offender’s daughter died in 2010, however, the report from CISP dated 15 July 2024, part of Exhibit “2”, states 2012.
23You also told Ms Mynard that, in 2014, you were diagnosed with “heart problems”, which required a stent to be put in, and another to be inserted in 2016 and, then, in 2022, you underwent a double bypass operation and now take medication, including five tablets to thin your blood and for elevated cholesterol.
24On the basis of your self-report of symptoms on a “prolonged grief questionnaire” administered by Ms Mynard, she considered that you had symptoms of intense distress, in that you suffered at least three or more of eight symptoms (albeit that the particular ones applicable to you were not identified by Ms Mynard), such that you satisfied the DSM-V TR Prolonged Grief Disorder. She stated that you had told her you continued to experience intense longing for your daughter, are preoccupied with your daughter’s death day and night, and preoccupied with thoughts of this loss even 15 years later.
25On the basis of your self-report, Ms Mynard opined that this disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, and that the symptoms of prolonged grief have impacted on you over a long period of time such that you had struggled with a focus in your work, had had suicidal thoughts, and claimed that your grief led to methylamphetamine use over many years in an effort to cope with your mental health issues.
26You told Ms Mynard that you could become quite paranoid when you were affected by methylamphetamine but these symptoms seemed to dissipate when you were not using it. She thus diagnosed you as suffering a Drug Induced Psychosis (intermittent).
27You told Ms Mynard that you were exposed to significant trauma as a child, having been physically abused by your mother who, confusingly, could also be comforting, which Ms Mynard opined had created a disorganised attachment style. You also told her that, for approximately three years during your childhood, one of your sisters and other girls in the neighbourhood had sexually abused you. This caused you to have feelings of being trapped, confused, unable to escape the abuse and anger towards your parents for not protecting you. In addition, you were taunted by your father and bullied at school for being overweight.
28On the basis of your self-report on the “international trauma questionnaire” administered by Ms Mynard, she considered that you suffered Complex Post-Traumatic Stress Disorder as a response to prolonged or repeated trauma. You reported re-experiencing symptoms relating to your childhood and claimed that you smoked cannabis, consumed alcohol, and then used methylamphetamine to try to stop thinking about the abuse you suffered. Ms Mynard noted that you had a very low mood, suffered hyperarousal-related symptoms, and also disturbances in self-organisation, namely, difficulty managing emotions, experiencing a negative self-concept, and having difficulties forming and maintaining close relationships.
29Ms Mynard concluded that you had low insight into your mental health issues and little understanding of treatment options. She concluded that your judgement at the time of offending was impacted by your ongoing mental health issues. She opined that your anger at the victim was displaced anger from your childhood trauma and concluded her report with a relatively lengthy list of a range of evidence-based trauma theories that might assist you.
30Your counsel, Mr Cronin, submitted that, on the basis of Ms Mynard’s report, the Court should accept that you suffered childhood trauma and intense unresolved grief following the death of your child and should find, in accordance with Ms Mynard’s opinion that you suffer Complex Post-Traumatic Stress Disorder, a Prolonged Grief Disorder and Drug Induced Psychosis. Further, the Court was urged to accept Ms Mynard’s view that these ongoing mental health issues impacted upon your judgement at the time of offending and, in particular, your anger towards the victim was displaced anger from your childhood trauma. In addition, it was submitted that during a period of imprisonment, such mental health issues would most likely cause your mood to deteriorate, your hypervigilance to increase and your Complex Post-Traumatic Stress Disorder symptoms to worsen.
31The prosecutor took issue with Mr Cronin’s submission that the principles in The Queen v Verdins[15] should be applied by the court to mitigate the sentence imposed upon you. I must say that I have difficulty finding on the balance of probabilities that such principles apply. Ms Mynard’s opinion is based on your self-report to her. I note that, in a number of material particulars, the history given to Ms Mynard when you saw her for an assessment on 23 November 2024 is at odds with the history recorded in the CISP report dated 15 July 2024. The latter contains a history that you believed that you had a good relationship with your parents, but were “always shut down” whenever you would try to seek help. The history taken by Ms Mynard is that your parents, themselves, were responsible for your trauma to some extent, in that your mother would physically abuse you by striking you with weapons or punching you, but then confuse you by being comforting, and that your father would emotionally abuse you by belittling you because you were overweight.[16] There is no mention in the CISP report of you having been sexually abused, albeit that I am prepared to accept that the unexplained reference to your parents “shutting you down” when you sought help was probably a reference to the sexual abuse perpetrated by your own sister and/or other local females. Further, contrary to Ms Mynard’s opinion that your “anger at the victim was displaced anger from (your) childhood trauma”,[17] the CISP report states:
“Mr Waipouri advised that he would not be described as an angry person, he explains that people gravitate towards him due to his ‘happy go lucky’ nature, which he notes he developed similarly to his father. Mr Waipouri expressed that he does not have trouble managing his emotions and has never participated [sic] any type of Anger Management Program. Mr Waipouri highlighted that he does not believe he needs further support with this treatment domain and is not seeking to engage with any support services within the community with anger management.”[18]
[15]VSCA 102; 16 VR 269.
[16] Exhibit “1” at page 2, paragraph [17].
[17] Ibid, page 9, paragraph [49].
[18] Part of Exhibit “2”, page 3.
32The diagnosis of “Drug Induced Psychosis (intermittent)” in Ms Mynard’s report is based solely upon the following:
“Mr Waipouir [sic] admitted that he can be quite paranoid when he is affected by methylamphetamine. He denied any other psychotic symptoms, such as visual or auditory hallucinations. These symptoms seemed to dissipate when he is not using substances such as methylamphetamines.”[19]
The CISP report states that you had self-reported symptoms of psychosis, depression, anxiety and post-traumatic stress disorder, but had conceded that you had never been officially diagnosed, nor had your ever engaged with any counselling or other treatment services for any such condition.[20] In this sense the diagnoses were unsubstantiated. Indeed, the CISP report noted that:
“Mr Waipouri presented as calm throughout the entire assessment, he would volunteer information without hesitation. Mr Waipouri appeared to be disconnected from emotion when explaining his personal experiences in childhood and adulthood, often dismissing the severity of his trauma and minimising the impact that this had to his development in specific decision-making abilities. Mr Waipouri presented with limited insight into the underlying psychological factors that may have contributed to his alleged offending.”[21]
[19] Exhibit “1”, page 7, paragraph [41].
[20]Part of Exhibit “2”, page 2.
[21]Ibid, page 3.
33Apart from the inconsistent histories, the difficulty in finding any causal nexus between the commission of this offence and any mental impairment is also complicated by your heavy long-term use of methylamphetamine. Again, there are inconsistencies in your history about this factor. Ms Mynard had noted that, while smoking cannabis and drinking alcohol problematically was part of your culture growing up and it impacted on your daily life, you turned to using methylamphetamine after your daughter died, helping you to “turn [your], mind off”. She went on to note that, when you developed heart issues, you ceased smoking cannabis around 10 years ago and, also, stopped smoking cigarettes and had been abstinent from drinking alcohol as well. Ms Mynard specifically noted that “he had still been using methylamphetamine intermittently and reported that he did use ICE a few nights before the offending on the last occasion.”[22]
[22]Exhibit “1”, page 3, paragraph [22].
34In contrast to the history taken by Ms Mynard in November 2024, only four months earlier, in July 2024, the history recorded by the author of the CISP report as to your methylamphetamine usage is as follows:
“Mr Waipouri informed that the first time he had tried any illicit substances was in his early twenties, during which time he experimented and partied with Speed, Ecstasy and Xanax. Mr Waipouri stated that he first smoked ICE in his early thirties, at which time he expressed that he began using ICE again as it had a greater effect than Speed and had ceased the use of Speed, Ecstasy and Xanax. Mr Waipouri admitted that he was on ICE at the time of the arrest and that he would use ICE daily since 2012.”[23]
[23]Exhibit “2”, page 2.
35According to the latter history, you had an established methylamphetamine use from your early thirties, long before the tragic death of your daughter in either 2010 or 2012, by which time you were into your forties. Whilst I do not for a moment doubt the terrible impact that the loss of your daughter in such circumstances would have had upon you and that it may have caused an increase in your usage of methylamphetamine, I find that I cannot be satisfied on the balance of probabilities that this factor has led to long-term depression, anxiety, Post-Traumatic Stress Disorder or a Prolonged Grief Reaction which is somehow connected with your offending. If it had been, one might have expected it to have surfaced at the time you were assessed and found suitable for a Community Correction Order at Sunshine Magistrates’ Court on 9 June 2022. The treatment and rehabilitation condition attached to that order refers to assessment and treatment for drug abuse or dependency and other offending behaviour programs, but it makes no mention of any assessment and treatment for any mental health condition. Further, the author of the CISP report records that a report of a Forensicare Mental Health Liaison officer had noted that there had been contact with Forensicare at Sunshine Magistrates’ Court in 2022, but there was no listed diagnosis of mental health conditions or admissions.[24]
[24] Part of Exhibit “2”, page 2.
36It is plain that you were apprehended for and ultimately found guilty of driving with the presence of methylamphetamine in your system on 5 December 2018, 30 January 2019 and 28 February 2022. In my view, your methylamphetamine use on a daily basis (as you told the author of the CISP report) is likely to explain to some extent your lack of engagement in employment since 2022, along with the fact that you had a double bypass operation on your heart in that year (having previously had stents inserted in 2014 and 2016). Further, your counsel pointed out that, after you were intercepted in 2022 whilst driving a vehicle and suspected by police to have committed a number of offences, you pleaded guilty to such offences, which resulted in a loss of licence following your convictions at Sunshine Magistrates’ Court. Clearly the latter would have impacted adversely upon your capacity for employment, particularly as a truck driver. I do not accept your counsel’s submissions that, by 2022, having separated from your wife (in 2015 or 2016), you were so depressed and also so grief-stricken about the death of your daughter (in 2010 or 2012) that you just stopped work because you ceased to care about yourself anymore.
37For the foregoing reasons, after careful consideration and undertaking the rigorous analysis required of judges in determining whether the principles in the Verdins case apply, I find that I cannot be satisfied on the balance of probabilities that they apply in your case to reduce your moral culpability for your offending.
38On the other hand, the Prosecution has conceded that, in a generic sense, the principles in Bugmyv The Queen[25] apply. The Court acknowledges that growing up in a large family where drug and alcohol abuse and apparently some degree of violence was present can impact adversely upon a young brain still in its formative stages and that the impact of such trauma can be enduring. Indeed, your counsel told the court that two of your older siblings were drug addicts. However, I do not see that this background has necessarily predisposed you to commit the offence of violence to which you have pleaded guilty, noting that you have no prior history of violence. There is a history of abuse of illicit drugs by you and I am satisfied beyond reasonable doubt that you were addicted to methylamphetamine and regularly using it at the time of committing this offence and that is the explanation for your unrestrained violence towards a person whom you plainly did not like and, who, himself, was vulnerable and not engaging in any actual conflict with anyone at the time you viciously attacked him.
[25] [2013] HCA 37; 249 CLR 571.
39Although I have rejected the diagnoses of Ms Mynard concerning complex Post-Traumatic Stress Disorder, Prolonged Grief Disorder and Drug Induced Psychosis as being causative of your offending, I do take into account in a general way as part of your personal circumstances that you did have an early and inappropriate exposure in your background to alcohol and drug abuse as well as to some form of sexual abuse (although the precise nature and extent of it is not apparent), and that the tragic death of your daughter undoubtedly would have caused you great distress and may well have caused an increase in your dependence upon methylamphetamine.
40Your counsel indicated that you had done well since being remanded in custody on 3 March 2024 and had not sought or been administered any treatment for any mental health condition during that time. This tends to suggest that, when not using illicit drugs, you do not have psychological problems which are a cause of any great mental impairment. Mr Cronin stated that you had been productively completing courses whilst in custody and have participated in various types of employment as a billet in metal work, in the kitchen, as a peer educator and are currently working in the prison timber workshop. Further, he submitted that, whilst housed at the Metropolitan Remand Centre, it is an indication of your good behaviour that you are permitted to reside in a four bedroom self-contained unit, rather than in a cell block. These factors are to your credit, albeit that I do not accept the submissions that your mental health is likely to make serving a term of imprisonment more onerous or to deteriorate whilst in custody.[26]
[26] Verdins principles 5 and 6.
41In sentencing you, I take into account that you did suffer anxiety by reason of being charged with manslaughter of the victim, or, alternatively, intentionally causing serious injury, and that you had these charges hanging over your head for some 7 months before the matter resolved, during which time you were not only in custody, but in custody for the first time. The court acknowledges that the first time in custody for any person can be very daunting, especially if the charges a person faces include one as serious as manslaughter. It is also likely to be an extra challenge if one is aged 56 years for such a first custodial experience.
42You successfully ran a contested committal on the question of causation which is, of course, your legal entitlement and, prior to that committal you had indicated an intention to plead guilty to the charge of causing injury simpliciter. In these circumstances, you are entitled to have your plea of guilty regarded as an early plea of guilty and it has important utilitarian value. However, as stated to your counsel during the plea hearing, I have struggled to find evidence of true remorse.
43When you spoke to the police on the day of the offending you simply made mention of an assault, but not that it was you who had assaulted the victim. The day after the offending (but prior to the death of the victim), when police attended your house and told you that the victim was on life-support, they captured a conversation with you on body worn camera footage, in which you were disparaging of your victim. You initially lied in claiming that the victim had been standing over Fitzpatrick, who was on the ground, but, ultimately made some admissions when you stated that “it wasn’t a fight, I just thumped him”. However, you minimised what you had done by claiming that you had slapped him in the face and the back of his head with an open hand. Even as recently as 23 November 2024, when assessed by Ms Mynard, you continued to make derogatory remarks about the victim, claiming that he was stealing from others when, of course, the deceased victim could not defend himself against any such allegation. Somewhat hypocritically, given that you were a long-term methylamphetamine addict, you told Ms Mynard that the victim “was on drugs” and that you “should have kicked him out of the house before”.
44Ms Mynard had been specifically asked by your instructing solicitor to consider if you had any remorse in the light of other denigrating remarks about the victim which you had made.[27] Ms Mynard stated that she “is aware that Mr Waipouir (sic) made disparaging remarks about the victim, and he did not hide his negative opinion of the victim and the victim’s behaviour prior to the assault”.[28] It was in this context that you told Ms Mynard that you had never felt “so guilty” since his death and claimed that you felt particularly bad for the victim’s family as you knew what it was like to lose a family member. Feeling guilty is not the same as being remorseful. At the plea hearing, your counsel stated that he had been asked to convey his condolences to the victim’s family. Whilst it is possible that you may have been developing some empathy for the victim and his family in recent times, in the context of a report to be produced to the Court in mitigation of sentence, and a plea by your counsel for the purpose of mitigating sentence, little weight can be afforded to such remarks.
[27] Email from offender’s instructing solicitor, Andrew Papadimitropoulos, to Alison Mynard dated 19 November 2024, part of Exhibit “2”.
[28] Exhibit “1”, page 8, paragraph [45].
45Your counsel stated that you had a good work history as a truck driver and furniture removalist, although no specific particulars of any employers or references were made available to the Court, and it is plain that you have not worked since 2022. It is perhaps difficult to understand how daily methylamphetamine use since 2012 could have resulted in a solid work history but, in any event, as I have said, it is to your credit that you have been working whilst in custody and endeavouring to improve yourself in circumstances where the Court was told that you had limited education. In relation to the latter, Ms Mynard had taken a history that you had been taken out of a school to work on the family farm in Year 9 and “never went back to school properly after you were around 13 years old”.[29] Your counsel submitted that you remained working on the family farm until you were 16 years old (although the report of Ms Mynard states it was until the age of 18 years[30]), and you later obtained jobs in a bakery, a butcher shop and as a mechanic and delivery driver. The CISP report states that you completed Year 7 at school and then “continued to complete future college training whilst on the family farm and finished once he was 18”.[31] When asked for clarification by me, your counsel stated that he understood that, after you had left the family farm, you went to Auckland and undertook further TAFE training in order to qualify for other employment.
[29]Exhibit “1”, page 3, paragraph [23].
[30]Exhibit “1”, page 3, paragraph 25.
[31] Part of Exhibit “2”, page 1.
46Your counsel stated that, although you had separated from your second wife (who is the mother of your four children, all of whom live in Melton) some eight years ago, you have a close relationship with each of your children, who are respectively aged 27, 26, 24 and 22 years old. He submitted that this bodes well for your rehabilitation. Given that none of your children were in Court to support you at the plea hearing or even submitted references on your behalf, it is difficult for the Court to know the quality of such support as alleged. However, as you are not an Australian citizen and were living in Australia apparently on a special category (Sub-Class 444) Visa granted on 14 April 2015, and all four of your children reside in Melbourne, along with 3 grandchildren, the Court is conscious that the sentence intended to be imposed will result in your failing the character test pursuant to the provisions of the Migration Act 1958 (Cth) and being at risk of deportation. This is a significant factor to be taken into account in your case, given that in or about 2012 you apparently left New Zealand following the death of your daughter to come to Australia because of your grief and the negative associations of your childhood trauma in New Zealand, and you have only returned there once, in or about 2015, in order to erect a memorial stone to your deceased daughter. In accordance with the principles in Guden v The Queen,[32] the Court takes into account the risk of you losing the opportunity to settle permanently in Australia and that there would be some psychological hardship in returning to New Zealand, even though this is the country of your birth and culture and that the risk of deportation is likely to weigh on you whilst in custody. I note from your counsel’s written submissions that you have no contact with those of your remaining siblings who are alive and live in New Zealand. In addition to your 3 children and 4 grandchildren, your counsel stated that you have four siblings who live in various parts of Australia, albeit the extent to which you have contact with them was not expanded upon by your counsel.
[32] [2010] VSCA 196; 28 VR 288.
47Mr Waipouri, while it is clear that I am to sentence you for one charge of intentionally causing injury and not the far more serious charges upon which the Magistrate discharged you, I regard your offending as a relatively serious example of this charge. Your violence towards you victim was totally gratuitous. There was no physical or verbal interaction continuing between the victim and Fitzpatrick at the time of your assault. The victim was simply leaning up against a wall outside his bedroom. Your attack was brutal and relentless. You repeatedly struck the victim while he was cowering and trying to protect himself and in no way being aggressive towards you. You struck him with five blows in quick succession over a 13 or 14 second period. The assault only came to an end because another resident intervened between the two of you. I have already commented on the considerable disparity in size, strength and fitness between yourself, with a large, stocky, muscly build and an apparent ability to move your feet and hands in coordination with alacrity as you physically attacked the victim, who was taken by surprise by your vicious attack and is shown in the photos tendered to be feeble looking with painfully thin arms and a deconditioned torso. The force of your blows was sufficient to cause the victim’s head to strike the wall behind him and cause damage to the plasterboard, and to break his nose and one rib, and leave multiple bruises on his face as well as some blood.
48The comments you made to police, and indeed, to the psychologist Ms Mynard, make it clear that you did not like the victim and had had enough of him living in your house having spats with Fitzpatrick. As was pointed out by the prosecutor, you could simply have issued a directive that he should leave the house, rather than laying into him in an irrational, brutal, uncontrolled outburst of violent anger. Moreover, you knew that he was in a very vulnerable position. You told Ms Mynard that you knew that he had been living under a bridge before he came to live in the room at your house. You knew he was drug dependent and very physically unwell awaiting an operation on what you understood to be for his liver, and that he had grossly swollen legs. You minimised your offending to police and also told Ms Mynard that you “hit him and then walked away”. This is clearly untrue. You repeatedly punched him and then followed him into his bedroom and hounded him out of the house knowing that he was vulnerable, and in circumstances where there was clear evidence at that stage that, as a result of your assault, he had blood on his face and there was blood on the wall near the point at which you had punched his head into it.
49After you saw the victim walk out of your house, you showed a callous lack of concern for him and did not even ask anyone else to check to see whether he was alright. In short, your offending was a senseless, violent attack upon a vulnerable victim who was present in a place which constituted his home and for which he was obliged to pay rent to you. The maximum penalty of 10 years’ imprisonment for this offence shows its relative seriousness. Although your offending behaviour was short lived, you did not voluntarily desist from it, rather another resident put himself between you and your cowering victim. The surrounding circumstances and relative lack of remorse as far as I can ascertain, put this well beyond the mid-range of seriousness for this type of offence, in my view.
50In sentencing for this sort of brutal, senseless, gratuitous violence to a vulnerable, defenceless victim, who was in no way provoking or retaliating to your attack, the Court must denounce your conduct and place emphasis upon general deterrence and just punishment. There is simply too much violence in our community and, in particular, too much violence committed by people who are dependent upon illicit drugs and the court needs to send a message to likely violent offenders that such violence will not be tolerated. That is the meaning of the principle of general deterrence which must apply in your case.
51It is true that you have no prior offences of violence, however, both Ms Mynard and the author of the CISP report comment upon your lack of insight into your psychological makeup, reasons for your anger and why you hit the victim. Ms Mynard assesses your risk of reoffending as moderate. I have made it plain that I consider the principal and immediate cause of your offending to be your methylamphetamine addiction and its effects upon you. Even though you told Ms Mynard that you were not affected by it at the time, you had mentioned to the author of the CISP report four months earlier that you were on ICE at the time of your arrest and had used ICE daily since 2012, having begun using it in your early thirties because it gave you a greater effect than Speed.
52You are now a man well beyond middle age and, as recently as 9 June 2022, when you were aged 54 and a half years, you were given the opportunity to engage in a rehabilitative disposition by way of a 12 month Community Correction Order which specifically included supervision and treatment and rehabilitation for drug abuse. However, you thumbed your nose at that opportunity, by not engaging in any meaningful way. In all of the circumstances, I am somewhat guarded about your prospects of rehabilitation, whilst acknowledging that apparently you have been well behaved and motivated to work and study whilst in custody. However, there is no evidence that you have undertaken any drug education or rehabilitation whilst in custody and, given the longevity of your drug abuse, you have a long way to go before you could be considered to be securely on a path towards addressing such abuse.
53Much was said at the plea hearing about your disadvantaged background and I have indicated that I take that into account in the general sense according to the principles in Bugmy v The Queen.[33] However, it is plain from the Ruling made by Magistrate Sonnet on 10 October 2024 that the victim, himself, had a truly tragic, cruel, deprived, and abusive childhood at the hands of his own father and, then, his step father, such that the state intervened. He ended up in a boys’ home at a relatively young age, where he suffered physical, sexual and emotional abuse. Later, in adulthood, he suffered a very serious back injury in a motor vehicle accident and was prescribed the powerful analgesic medication, Endone, for pain relief. He became addicted to it and, apparently, this led to his addiction to drugs of an illicit nature. Incredibly, after battling all of these hardships he managed to find a relationship and married in 2000 and, together, he and his wife had one child. His wife inherited a significant sum of money, which enabled them to purchase their own home. Unhappily, both he and his wife had significant problems with drug addiction and his wife died in 2019, which resulted in the victim increasing his illicit drug use and becoming involved in criminal activity and being imprisoned. Whilst imprisoned, apparently his home was overrun by criminal associates and squatters, and a fire lit in a fire pit in the backyard spread to and engulfed his home in flames. He was uninsured, and left homeless and in a state of perilous health because of liver disease and spent considerable time in and out of hospital. It was in these circumstances that he had found his way to renting a room from yourself only seven weeks prior to his death.
[33] [2013] HCA 37; 249 CLR 571.
54Notwithstanding your victim’s reduced health and circumstances, he had people who loved him. In Court at your plea hearing were his mother and two of his sisters and a niece. His mother and two sisters provided Victim Impact Statements which were filed respectively as Exhibits “B”, “C” and “D”. The Victim Impact Statement of one of his sisters, Exhibit “C”, was read in open Court. The authors of each of the Victim Impact Statements in their own way express their love for your victim, who had tried as a young boy to try to protect his mother and sisters from the brutality of his father and his mother’s subsequent partner. The authors of the Victim Impact Statements speak of his good qualities, the regret of the authors that they could not help him, their alarm over your attack upon him and how anxious that makes them feel in a world that, to them, feels unsafe. The Court acknowledges the distress of your victim’s relatives and their deep concern about what you did to him and the adverse impact that that has had upon them (whilst being mindful of the charges upon which you were discharged).
55You have spent a total of 357 days in custody. Your counsel submitted that the court should impose a sentence which did not involve any further incarceration. The prosecution submitted that a sentence of imprisonment comprising a head sentence and a non-parole period or, alternatively, a combination sentence was in range for what the prosecution described as offending appropriately categorised as being in the mid to upper range for this type of offence. In my view, the features of your offending to which I have earlier referred give it a gravity, which, even taking into account the mitigating factors which I have acknowledged in your favour, mean that the only appropriate sentence is that of a term of imprisonment by way of a head sentence and a non-parole period.
56On the charge of intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of two years and six months. I direct that you serve a period of one year and three months before becoming eligible for parole.
57I declare a period of 357 days to be time reckoned as already served under the sentence imposed this day.
58Pursuant to s 6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been three years and six months with a non-parole period of two years and four months.
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