R v Rakatau
[2008] VSC 460
•30 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1718 of 2008
| THE QUEEN |
| v |
| JAMES LYLE RAKATAU |
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JUDGE: | Osborn J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2008 | |
DATE OF SENTENCE: | 30 October 2008 | |
CASE MAY BE CITED AS: | R v Rakatau | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 460 | |
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Sentence two counts of conduct recklessly endangering life – use of weapon - actions taken with the intent of avoiding arrest – need for general deterrence where victims police officers acting in the course of their duty – pleas of guilty – total effective sentence 5 years imprisonment with a minimum of 2 ½ years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Barry | Office of Public Prosecutions |
| For the Accused | Mr S. Langslow | Revill & Papa Lawyers |
HIS HONOUR:
James Lyle Rakatau you have pleaded guilty to two counts of recklessly endangering life; the first that at Point Cook on 14 November 2007 without lawful excuse, you recklessly engaged in conduct that placed Matthew Flood in danger of death in that you attempted to discharge a firearm in the vicinity of Matthew Flood. The second, that at the same place and on the same day, you without lawful excuse, recklessly engaged in conduct that placed Travis Merlo and Adam Radley in danger of death, in that you attempted to discharge a firearm whilst it was pointed in the direction of Travis Merlo and Adam Radley.
On 14 November 2007 at Point Cook, four members of the Victoria Police intercepted a motor car in which you were travelling as a passenger. Their purpose was to arrest you pursuant to a warrant of the District Court in Western Australia.
On getting out of the car at the request of police and being told the purpose of the interception, you broke free and ran along Point Cook Road. You were pursued on foot by Detective Senior Constable Flood and Senior Constable Radley. Another officer, Detective Senior Constable Merlo followed in a police car. You ran into a side street and were pursued by Flood, Merlo and Radley.
Flood caught up with you and tackled you as you attempted to get over a picket fence between the side of a house and a boundary fence. The picket fence gave way and you and Flood fell to the ground. Flood was on top and sought to pin you to the ground, pushing your head downwards. You struggled vigorously to get out from under Flood.
Shortly after the struggle began, you reached behind you and managed to take possession of Flood's loaded .38 Smith & Wesson service revolver from the holster at his belt. You said to Flood, "Now you freeze cunt" and pointed the gun at Flood's midsection. Flood grabbed for the gun and took hold of it in one hand, holding the cylinder and the other, the back of the gun. Flood attempted to stop the cylinder from spinning which would prevent the revolver from firing, and pushed the gun away from him so that it pointed back towards the front of the premises.
Flood then heard a metallic clicking sound and when the hammer came back on the gun he placed his left index finger between the hammer of the gun and the primer. Flood then felt pain in his finger as the trigger of the gun was pulled and the hammer impacted upon his finger. Flood's finger prevented the gun from firing and he maintained his finger in this position as you continued to try and pull the trigger. All this occurred as both of you were in effect wrestling on the ground.
Merlo and Radley came in turn, around the corner of the house no more than a few metres away, and came over the top of Flood to subdue you. Flood yelled to Merlo, "He has got my gun." You continued to pull the trigger on the gun as first Merlo, then Radley intervened. The hammer again struck Flood's finger each time you pulled the trigger. Throughout the struggle you yelled out that you were not going back to gaol. Radley ultimately subdued you using both physical force and capsicum spray. Not surprisingly, each of the police officers believed at the time that they might be shot during the struggle with you.
It is submitted on your behalf that your actions were not premeditated and took place in the context of a short-lived and vigorous struggle which lasted for less than a minute. It is also submitted that it should be recognised that you remained on the ground and were only able to partially raise the gun. Flood was bearing down with both hands on the gun from a more elevated position and this kept it close to the ground. In addition, the gun did not discharge.
I accept these submissions, but I do not accept that the danger to the lives of Merlo and Radley was necessarily a small possibility only, nor that you were unaware of their presence in the final stages of the struggle.
More particularly, it is plain on the uncontested facts that you caused the hammer of the gun to operate, both when Flood was struggling with you and immediately above you, and when Merlo and Radley arrived at the struggle, came towards you, called out to you, and assisted to overpower you.
It is plain that your conduct was dangerous and that if Flood had not been able to place his finger between the hammer and the primer, the consequences of your actions could well have been the infliction of very serious injury, with potentially fatal consequences. Indeed, but for Flood's courageous action you would in all likelihood be facing far more serious charges.
In making the findings that I have, I have proceeded on the basis that I must be satisfied of matters adverse to you beyond reasonable doubt, and the matters favourable to you on the balance of probabilities.
There are a number of aggravating circumstances associated with your conduct. First, you were not content to struggle with Flood on an unarmed basis, but escalated the conflict by taking his service revolver.
Secondly, Flood and the other police officers were performing their duty in arresting you pursuant to the Western Australian warrant.
Thirdly, it is apparent your conduct was motivated by a desire to escape lawful arrest.
Fourthly, although in terms of physical injury the police officers escaped with bruises, cuts and abrasions, they were left with the psychological and emotional impact of a near death experience.
I accept the victim impact statements which each of them has lodged, to the effect that this has left a lasting impression upon them and has adversely affected their peace of mind, sense of personal security and their enjoyment both of their jobs and of life generally.
Fifthly, as the Court of Appeal again emphasised in the recent decision of Arvanitidis,[1] the fact that the victim of violence is a police officer, acting in the execution of his or her duty, is generally to be regarded as an aggravating circumstance. More particularly it calls for an additional element of deterrence. It must be plain that the courts will protect police, so far as they are able, in the lawful execution of their duties.
[1][2008] VSCA 189.
As against this, the actions that bring you before the court did occur over a very short space of time, after you had first run away at full speed and then crashed through a fence as you were tackled, and then became locked in a struggle on the ground with Flood.
I accept your actions were impulsive and undertaken in the context where flight had suddenly turned to fight.
You are aged 25, having been born on 14 March 1983. You have a series of convictions going back to April 1999, for burglary, assault, theft and other matters. Most significantly you were convicted in the Perth District Court in August 2002, of burglary and robbery, and sentenced to a total effective sentence of four years' imprisonment.
In September 2004 you were convicted at the Fremantle District Court of possession of explosive and sentenced to a term of imprisonment for a period of 16 months.
The robbery conviction arose out of an incident in which you inflicted serious injuries upon the victim, fracturing his eye socket, breaking his nose and causing other facial injury when you bashed him.
You thus come before this court with a serious prior conviction for violence and in circumstances where previous sentences of imprisonment have failed to deter you from further offending.
You have arrived at this situation, despite coming from a good and supportive immediate family in Western Australia, and in turn, a good and supportive extended family in Victoria. Both your parents have flown from interstate to express their support for you at the plea hearing. Members of your extended family who reside in Melbourne have also attended the court and I accept that they are hardworking and responsible people.
At the time of your arrest you were working in the mini skip business of one of your uncles. You had demonstrated good work skills and a genuine capacity to fit in well with, and contribute to the life of your extended family. I accept that you will have the support of your family in the future and that that support provides a framework for a better engagement with society on a more satisfactory basis as you grow older.
This possibility must also be assessed, in part, by reference to your relative youth and the fact that you offended at an age when there is general medical acceptance most young men have not achieved full mental maturity. This factor also supports the view that your rehabilitation must be regarded as a significant sentencing consideration. That factor also gains weight from your plea of guilty. That plea has both avoided the need for a trial and acknowledged your criminal responsibility for your actions.
Taken together, your plea of guilty, your age and the level of your family support, encourage the view that a relatively extended opportunity for parole is appropriate.
Ultimately the sentence of this court must however, for the reasons I have set out, reflect the gravity of the offence to which you have pleaded, which carries the maximum penalty of 10 years imprisonment; reflect the very real need for general deterrence in order to protect police officers acting in the course of their duties and reflect the need for specific deterrence, having regard both to your history and the nature of the offences to which you have pleaded. Indeed, it seems to me that, looking at your actions in the light of your personal history, you have reached the point where you will either have to grow up and learn to manage your anger and your fists or, alternatively, continuing violent behaviour will destroy any prospect of a happy and fulfilling life in the future.
Having regard to the factors I have mentioned, it seems to me that not only must an immediate custodial sentence be imposed, but that the penalty for Count 2 must involve a cumulative element upon that imposed for Count 1. On the other hand, the sentence of the court must acknowledge your plea of guilty, your relative youth and your prospects of rehabilitation.
Mr Rakatau, would you stand up please.
Having regard to the above matters, I sentence you on both the first and the second counts to four years imprisonment respectively. I order that one year of the imprisonment imposed with respect to Count 2 be cumulative upon that imposed in respect of Count 1, resulting in a total effective sentence of five years, and I fix a non-parole period of two and a half years.
If it had not been for your plea of guilty, then in my view the appropriate total effective sentence would be seven years and the appropriate non-parole period five years. There is a greater differential between the non-parole period I have imposed and that which I would have imposed but for a plea. That is because I take the view that your plea of guilty supports a greater reduction in your non-parole period than in the head sentence.
I declare pursuant to s. 18(4) of the Sentencing Act 1991 that you have already served a period of 352 days in custody.
Would you remove the prisoner please. We will stand down until half past ten.
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