DPP v Tzatzakis

[2020] VCC 36

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

AT MELBOURNE
 CRIMINAL JURISDICTION

CR-19-00138

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOUI TZATZAKIS

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2020
DATE OF SENTENCE:	29 January 2020
CASE MAY BE CITED AS:	DPP v Tzatzakis
MEDIUM NEUTRAL CITATION:	[2019] VCC 36

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence, guilty plea, aggravated home invasion, recklessly cause serious injury, common assault, general deterrence, denunciation, just punishment, remorse, good prospects of rehabilitation, substantial gap between head sentence and non- parole period

Legislation Cited: S.10AC of the Sentencing Act 1991

Cases Cited:DPP v Wol [2016] VSCA 268; DPP v O’Brien [2019] VCC 738; DPP v Hogarth [2012] VSCA 302

Sentence:7 years imprisonment with a minimum non-parole period of 4 years imprisonment.

s6AAA declaration:   9 years imprisonment with a minimum non-parole period of 6 years and 9 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Michael Roper	Ms Cecilia Tulloch
For the Accused	Mr Phillip Dunn QC	Mr Adrian Lewin

HIS HONOUR:

Louie Tzatzakis you have pleaded guilty to 1 charge of aggravated home invasion, 1 charge of recklessly causing injury, 1 charge of recklessly causing serious injury and 1 charge of possession of a drug of dependence, namely cannabis.  The maximum penalties are as follows: aggravated home invasion - 25 years' imprisonment; recklessly causing injury – five years' imprisonment; recklessly causing serious injury - 15 years' imprisonment and possession of a drug of dependence – 5 penalty units - given that I am satisfied it was a small quantity for personal use.  

You have also pleaded guilty to the summary offence of unlawful assault for which the maximum penalty is 3 months' imprisonment.

Facts

1The facts of this matter are set out in the prosecution opening on the plea which was tendered as Exhibit 1.

2At the time of your offending you were aged 25 and you had been living with your mother, father and sister in Keysborough until around the end of June 2018.  You moved out after a disagreement with your family over your drug use and went to live in Balaclava with a friend, Alex Pattison-Sowden.

3Two of the victims in this matter, Stefan Pascal and Russell Gomes, who were also aged 25 at the time of the offending, lived at Wombat Court, Narre Warren South.  This is where the offences took place.  The third victim, Jerome Papain, had the misfortune to be visiting at Wombat Court at the time of the offences.  You knew Mr Pascal and Mr Gomes but you did not know Mr Papain.  

Circumstances of Offending

4On 14 July 2018 you arranged to visit the Wombat Court address to drop off money you owed to Mr Pascal. You arrived at the address at around 12:43 AM with two other males who remain unknown. You knocked at the door. Mr Pascal opened the door and he recognised you. You were armed with a baseball bat.  One of the other men forced their way past Mr Pascal into the house.  You entered as well. Mr Pascal struggled with the third male at the door.  This third man produced a knife and chased Mr Pascal down the street before returning to the property.  This is the basis of the unlawful assault.  Your liability is based on complicity with this third male.  Your entry into the premises is the basis of Charge 1, the aggravated home invasion.

5After you entered you went with the second male to the kitchen and the living room area. Mr Papain was ordered to sit on the couch and both you and the second male began hitting Mr Papain to the head and the ribs with your fists.  He was also struck to the hands during this assault. Mr Papain lowered his hands when the blows stopped and saw that the second male was holding a hammer.  You then walked off towards the bathroom.  Both of the co-offenders then joined you at the bathroom door.  Mr Gomes was in the shower.  He heard the commotion and he opened the bathroom door.  He recognised you.  He saw you and the second male advancing towards him.  He saw the second male was carrying the hammer.  

6Mr Gomes shut the door and tried to block your entry by pressing his body against the door but eventually you and the second male were able to force your way in.  Mr Gomes remembers being hit in the head with a hammer as he lay on the bathroom floor.  He recalls you asking where the drugs and the money were and yelling words to the effect of:

"This is what you get for getting my family involved".

7You and the other man left the room, but you then returned and stomped on Mr Gomes' back; you then left.  Mr Gomes called 000.

8Mr Papain also grabbed his phone to ring 000.  He ran outside and chased you for a short distance before returning to the property.  Mr Pascal who was still hiding outside saw you and both unknown males leave the premises in a white van.

9As a result of this assault, Mr Gomes suffered two large scalp lacerations, two facial lacerations, a concussion and a fractured skull.  On the plea, photographs were tendered of his injuries both before and after treatment.  He required a craniectomy to remove the fractured fragments of the skull and a reconstructive cranioplasty with titanium mesh.  At the committal proceeding in this matter, Mr Gomes said that he was in the Alfred Hospital for five days and then he had three months off work.  He said this was because he suffered from seizures and was told by a specialist not to drive for three months.  He said he did not have any ongoing problems now from the injuries.  

10Mr Papain suffered a displaced fracture of his right ring finger and an open fracture of his right little finger.  At the committal he gave evidence that he was off work for nine weeks.  He was working as a forklift driver at that time.  He also gave evidence that he needed therapy for his injury for approximately ten to twelve weeks.  He said that he had not regained full flexion of his finger.

11Your housemate, Mr Pattison-Sowden told police that a day after the incident you told him you were in big trouble as you and a couple of mates went around to the house of a guy that owed you money.  You said that there was a lot of blood and you tried to chase the guy that owed you money, but he ran out of the house and your mates went in.  You told Pattison-Sowden that one of your mates had bashed in a guy's head with a hammer.  It is not alleged that you used the baseball bat in your possession to physically assault anyone in the house.  

Victim impact

12None of the three victims in this matter have made victim impact statements.  However, the injuries sustained by Mr Gomes and Mr Papain speak for themselves and this must have been a terrifying incident for all of the three victims inside the house when you and the other two unknown males entered.

Arrest, Search and Interview

13The arrest in this matter took place some five days after the incident when you were arrested at 2 Exhibition Street in Melbourne, which was your place of employment.  Subsequently, a search warrant was executed on your property and several items of clothing were seized including a zip lock bag containing a small quantity of cannabis which is the basis of Charge 4.

14Before you were interviewed by police, you were handed your mobile phone to retrieve the contact details of your lawyer.  A police officer observed you delete two text message conversations which were later retrieved.  In them you admitted attending the house to 'sort shit out' with Pascal and that things got out of hand, but you denied touching Gomes.

15During your recorded interview with police, you answered no comment to the allegations put to you.

16The identities of your two co-offenders remain unknown.

Gravity of Offence

17Prior to December 2016 the offence of aggravated home invasion, which carries a maximum penalty of 25 years, would have been charged and dealt with as an aggravated burglary.  Home invasions were the species of aggravated burglary that generally attracted the longest sentences.  In the case of Hogarth v The Queen, the Court of Appeal, after describing home invasion as, a 'particularly nasty form of criminal conduct', went on to say: 

“Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong.  The entry of the offenders — acting in anger and often fuelled by alcohol — is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.”

18These comments are applicable to the offending in this case.

19In the decisions of  DPP v O'Brien[1] and DPP v Wol[2], two recent Crown appeals against sentences imposed for aggravated home invasions both of which resulted in increased sentences, the Court of Appeal reiterated the need for substantial sentences as a response to this kind of offending and that general deterrence is of great importance in such cases.

[1]DPP v O’Brien [2019] VCC 738

[2]DPP v Wol [2016] VSCA 268

20S.10AC of the Sentencing Act 1991 provides that a term of imprisonment must be imposed for the offence of aggravated home invasion and that a non-parole period of not less than three years must be fixed unless the sentencing court finds under s.10A that a special reason exists.  It was not argued on your behalf that any special reason exists under s.10A.

21Mr Tzatzakis your offending was obviously extremely serious.  It is clear from what you said to Mr Gomes as he lay on the bathroom floor that you were angry that your family had been told about the money you owed to Mr Pascal and that you were also motivated by desire to get your hands on drugs and money.  You had a baseball bat with you when you arrived with the two unknown males at approximately 12:43AM. Immediately upon entry Mr Papain was assaulted by both you and the other male who inflicted multiple punches on him causing a fracture to his fingers. 

22Following on directly from this assault, Mr Gomes was attacked in the bathroom, after the two of you forced your way in against his resistance.  I infer from the immediacy and seriousness of the assaults that took place after you and the others entered, that your intent when you entered was unequivocally to cause serious harm to those inside.  It's true that you and the other two males did not enter by breaking the door down or smashing in windows and that no one was in possession of a firearm and that the time you were inside the house may have been relatively brief, but this aggravated home invasion was undeniably very serious offending.

23The entry into the premises was no doubt made easier because you had pre-arranged to attend to repay the money that you owed.  Mr Pascal, of course, did not know that when he opened the door you would be there with a baseball bat accompanied by two other males.  The presence of the weapon and the fact that you were in company are elements of the offence of aggravated home invasion and as such are not aggravating features, but they exemplify the inherent seriousness of an aggravated home invasion offence.  

24This offending involved a level of pre-planning and you must be considered to be the instigator since you knew two of the occupants and it was your debt that led to your attendance.  I regard your moral culpability for this offending as high.

25The offence of aggravated home invasion was of course complete after you had entered the premises and I have drawn inferences regarding your intent at the time of entry based on your behaviour inside and I must be careful to avoid double punishment in relation to the assault offences against Mr Papain and Mr Gomes in which you participated inside the house.  

26However, the assaults on those two victims constitute separate serious crimes distinct from the aggravated home invasion even though they inform your intent at the time of entry.

27The assault on Mr Gomes was very serious indeed.  He was a defenceless man who had just gotten out of the shower.  He attempted to thwart your entry into the bathroom but could not resist the combined force of you and the other male.  You must have been aware that the other male was in possession of the hammer.  You were right there when the other male struck Mr Gomes to the head with the hammer causing the fracture his skull and you have acknowledged by your plea your complicity in this recklessly causing serious injury.  You did not personally deliver the hammer blows to Mr Gomes' head but when Mr Gomes was lying on the floor with a fractured skull you came back into the bathroom and stomped on his back, in a clear demonstration of your willing participation in the attack on Mr Gomes.  

28Blows to the head using a hammer with sufficient force to cause a fractured skull carry with them the potential to cause catastrophic injury or death.  Fortunately, Mr Gomes' injuries have resolved, and the evidence does not point to any serious long term affects.  This outcome seems to me, to be a matter of good luck.  

29These two charges merit substantial sentences in their own right and require a measure of cumulation on the sentence for the aggravated home invasion.  Of course, I must have regard to totality when sentencing for these matters and the need to avoid double punishment.

Personal Circumstances

30Your personal circumstances were outlined by Mr Dunn on the plea.  They are also dealt with in the defence chronology and submissions and in the psychological report of Mr Warren Simmons all of which are contained within Exhibit D1, the folder of defence materials. 

31Mr Tzatzakis, you are now aged 27 years.  You were born and raised in the eastern suburbs of Melbourne to parents of Greek background.  You have one younger sister who is aged 26.  Clearly, your family are decent, hard-working people. They remain entirely supportive of you, despite the heartache your behaviour has caused them over a number of years, culminating in this offending and your subsequent period on remand.  

32I have no doubt they will continue to support you when you are eventually released from prison and their continued support is an important matter in my assessment of your prospects of rehabilitation, to which I will return.

33You attended St. James High School and then Wheelers Hill Secondary College.  Your father gave evidence on the plea that when you were about 14 years old you were bullied, and you subsequently fell in with a negative peer group after which you started using drugs. You told Mr Simmons that you commenced using drugs in 2009.  I am told that you got in some trouble with police in your teenage years.  This trouble seems to be represented in your prior convictions as an affray and an assault in February 2011.

34You completed year 10 at high school and then did a pre-plumbing apprenticeship at TAFE whilst living at home.  Apparently, you were not suited to working as a plumber and at some point, decided that you would like to be a chef.

35By the age of 21 you had worked in a number of unskilled jobs whilst living at home with your parents. You had several relationships over this period, and you continued to use drugs. Around this time, you were working at The Smith Restaurant in Prahran where you met Mr Pattison-Sowden.  You then worked together for two years and you became close friends.

36By the age of 23, you were working as an apprentice chef; and you were still living at home.  In August 2015, you appeared before the Moorabbin Magistrates' Court on charges of dangerous driving, speeding and other offences.  You were convicted of these charges and released on a community correction order with a drug treatment component.  

37In the course of the correction order you saw a counsellor to deal with the drug issues and later attended Headspace as a voluntary patient.  In 2016, The Smith Restaurant closed down for renovations and you went to work at The Gazi Restaurant in Flinders Street.

38By June 2018, as I follow it, you were working at a restaurant called Tonka but your abuse of drugs had again become a real problem and your father, understandably, could no longer tolerate your behaviour and your drug use and he gave you an ultimatum to either cease using drugs or leave the family home.  You moved to a share house in Balaclava with Mr Pattison-Sowden.  As I mentioned, during this period you were working at The Tonka Restaurant in the city and you were using drugs daily, in particular methyl amphetamine.  

39The evidence of your father and your friend, Mr Smith, suggests that in this period your personality had changed, and you had become an unpleasant young man, no doubt because of your constant use of methyl amphetamine.  At the time the offences took place you had lost control of your drug use.  The report for Dr Cyngler of the Hennessy Clinic dated 25 September 2019, contained within Exhibit D1 establishes that you sought assistance for Ice abuse in July 2018.  This is the context in which the offending took place.

Prior Convictions

40You have a prior conviction for affray and an assault in 2011, and as I mentioned earlier, you were placed on a community correction order for driving offences in 2015 which involved drug treatment.  As I understand it your early offending took place in the context of drug problems.  These prior convictions do not assume great importance in my sentencing task in this matter, but they do have some relevance to considerations of specific deterrence and my assessment of your prospects of rehabilitation.

Guilty Plea

41Mr Tzatzakis you ran a contested committal in this matter and the three victims were cross-examined.  The matter was eventually resolved after negotiation with the prosecution and you were arraigned and entered pleas of guilty in August 2019.  Your plea cannot be considered an early plea, but it is still significant in its utilitarian value and I am satisfied that your guilty pleas are also an indication of remorse on your part for your very serious criminal conduct.

Remorse

42In addition to your guilty pleas, I have heard evidence from your father Christos Tzatzakis and your close friend Samuel Smith, both of whom said that after some time in custody your attitude transformed and you expressed, in their view, genuine remorse for your conduct.  I am satisfied that your remorse is genuine and that you appreciate the very serious nature of your offending and its significant impact on the three victims who were subjected to your violent conduct in company with the two unknown males.  In my view your remorse and insight into your offending and into your drug-influenced lifestyle bodes well for your rehabilitation.

Prospects of rehabilitation

43I am also satisfied based on the oral evidence from your father and Mr Smith and in their written references, and from the other character references provided, that when you have been relatively drug-free you have been a hardworking and caring person who has been able to sustain positive relationships with friends and family.  Their continued support for you is encouraging.  I am also satisfied that since the offending you have been able to reflect on your lifestyle, drug use and your offending.  You have also taken positive steps whilst in prison towards your rehabilitation.  I have been provided with drug screen results taken in prison, all of which are negative, and a group of certificates relating to courses you have successfully completed whilst on remand.

44I have given particular weight in this regard to the glowing reference provided by Dr Marietta Martinovic, a senior lecturer at RMIT who taught the Inside Out exchange program at Ravenhall Correction Centre from February to June 2019.  This program taught the subject "comparative criminal justice systems" to 15 prisoners and 15 higher education students.  She describes your dedication, participation and academic achievement in this program as outstanding.

45I have had regard to the psychological report of Warren Simmons dated 7 November 2019 and to all the references tendered on your behalf and all of the material contained in the folder of defence materials tendered as Exhibit D1.  I am also mindful that this will be your first sentence of imprisonment and that the time you have spent on remand has been your first experience of prison.  In my view your prospects of rehabilitation are very positive.

46However, it is also clear that your long-term rehabilitation is dependent on leading a drug-free lifestyle as you have struggled with drug use for many years and it has caused you to offend in the past.  Once you are released from custody abstinence from drugs will be the key to your rehabilitation.

Submissions

47Mr Dunn, in his submissions on your behalf, outlined aspects of your background and argued that I should make positive findings about your remorse and your prospects of rehabilitation, which I have done. Mr Dunn accepted that the only appropriate sentence is a period of imprisonment with a head sentence and a minimum non-parole period. It is argued in the defence written submissions that the effect of s.10AC is that that there will be a 'compression of sentences towards the lower end of the range with offences at the bottom end of the range being treated effectively in the same way as those towards the lower end'. Mr Dunn also argued that the evidence of remorse and the positive prospects of rehabilitation along with your relative youth and the fact that this is your first sentence of imprisonment are a basis for a substantial gap between the head sentence and the non-parole period.

48The prosecutor, Mr Roper, conceded that there is some force in this latter argument and pointed out the need to apply the totality principle to the sentences for the various different offences.

Sentencing principles

49The purposes for which a court may impose sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances as well as current sentencing practices.  I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.  In my view an offending as serious as this, I must give particular weight to general deterrence and denunciation.  Just punishment and specific deterrence are also relevant.  I have been persuaded to reflect considerations of rehabilitation in part by imposing a significant gap between the head sentence and the minimum non-parole period.

Totality

50In formulating the sentence in this case, I have had regard to the totality of principle which requires me to ensure that your overall sentence remains 'just and appropriate' for the whole of your offending.  Any orders for cumulation must be moderated to the extent necessary to give effect to the principle of totality.  

51If you could stand now, Mr Tzatzakis, please.

Sentence

52On the charge of aggravated home invasion, that is Charge 1, you are sentenced to a period of five years and three months' imprisonment.  This is the base sentence.  On the charge of reckless injury that is Charge 3 to Mr Papain you are sentenced to 15 months imprisonment.  On the charge of recklessly causing serious injury to Mr Gomez that is Charge 2 you are sentenced to 3 years' imprisonment.  On the summary offence of unlawful assault, you are sentenced to two months' imprisonment.  And I will deal with the cannabis in a moment.

53In relation to Charge 2, that is the reckless serious injury, I order that 15 months of that sentence is cumulative on the sentence of Charge 1, which is the base sentence.  On Charge 3, I order that 6 months is cumulative on Charge 1, which is the base sentence. 

54Now, that should make a total effective sentence of 7 years and I am fixing a minimum non-parole period in this matter of 4 years. 

Presentence detention

55Pursuant to section 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 557 days of pre-sentence detention and I direct that this be entered into the records of the court.

56In relation to the charge of possession of cannabis, you are convicted and fined $100, that being a small quantity for personal use. 

57HIS HONOUR:  Are those figures correct?  Have I got the maths right?

58MR ROPER:  Yes, Your Honour.

59HIS HONOUR:  Yes.  Seven years?

60MR DUNN:  Yes, Your Honour.

61HIS HONOUR:  I impose a minimum non-parole period of four years.  You understand, Mr Tzatzakis?

62OFFENDER:  Yes.

63Pursuant to s.6AAA, but for the plea of guilty in this matter, I would have imposed a sentence of nine years, with a minimum non-parole period of 6 years and 9 months.

64Now, was there a disposal order in this matter?

65MR ROPER:  There was, Your Honour.  Yes.

66HIS HONOUR:  Yes.  All right.  There's no opposition to that disposal order?

67MR DUNN:  No, Your Honour.

68HIS HONOUR:  I make that order, as well, any other ancillary orders required?

69MR ROPER:  No, thank you, Your Honour.

70HIS HONOUR:  No.  All right.  Thank you. I will adjourn the court to 10.30AM.  If you could remove Mr Tzatzakis, please. I will sign the disposal order in chambers, and it will be sent through.

71MR ROPER:  Thank you, Your Honour.

72HIS HONOUR:  So no other orders?

73MR ROPER:  No, Your Honour.  If it pleases the court.

74HIS HONOUR:  All right.  Thank you.  I'll adjourn the court.

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