R v Tapeka
[2012] VCC 974
•16 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-01263
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB TAPEKA |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 13 and 16 July 2012 | |
DATE OF SENTENCE: | 16 July 2012 | |
CASE MAY BE CITED AS: | R v Tapeka | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 974 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Vella | |
| For the Accused | Mr I. Halger |
HIS HONOUR:
1 Jacob Tapeka, you have been convicted by a jury of one offence of armed robbery on 30 May 2010 wherein you stole a Nokia mobile telephone whilst you had with you an offensive weapon, namely a pair of scissors. The offence of armed robbery carries a maximum penalty of 25 years' imprisonment.
2 The offence was committed sometime not long after 9 pm in the evening on a train at Bayswater railway station, in circumstances where you picked what has been described as a soft target, a young man who was on his own on the train. You enlisted the assistance of two other persons in carrying out the robbery by asking them to hold the doors to the train whilst you carried out the robbery. The robbery itself was carried out over a very short period of time and involved you threatening your victim with a pair of scissors which you had with you in your backpack. At one stage you thrust those scissors into his chest, not causing him any injury but no doubt causing him a good deal of fear. You backed up your actions with a verbal threat that you would stab him. You demanded his mobile phone and in fear he handed it over to you.
3 Offences of that kind are rightly regarded as serious offences, aggravated in this case by the fact that you carried out the offence in a brazen manner in public, on public transport, picking a soft target, somebody who was going about his ordinary business and made good your escape from the train, leaving him to fend for himself.
4 This was not your first excursion into offending of that kind. You had been convicted by a jury in October of last year and were sentenced by His Honour Judge Shelton in this court for similar offending conduct to a total effective sentence of two years' imprisonment with a minimum term of 16 months' imprisonment to be served before being eligible for parole.
5 It seems to me that the offending on this occasion was on a par with, although perhaps slightly more serious, than the offending that gave rise to that conviction and sentence. I note that this offence was your second excursion into criminal conduct of that kind. You have a criminal record which is not irrelevant but which is typical of a young man who has succumbed to the temptation of first experimenting in and then ending up addicted to a variety of illicit narcotic substances and for whom that experimentation and addiction has essentially ruined a good part of the teenage years and early adult life.
6 Turning to matters personal to you; your counsel tendered a report from a clinical psychologist, Mr Bernard Healey, which was provided to His Honour Judge Shelton in your previous plea hearing and arose from a visit by Mr Healey to Port Phillip Prison to visit you on 19 November 2011. So although strictly it is not an up to date report, it helpfully sets out a good deal of your background, childhood, your education and your use of various illicit drugs of dependence and your intellectual capacity and emotional/psychological difficulties.
7 All of that was taken into account no doubt by His Honour Judge Shelton when he imposed a sentence of two years on 6 December 2011 with a non-parole period of 16 months. It seems to me that His Honour was lenient with you in imposing that sentence for a serious offence. However, it also seems to me that that leniency was borne of a merciful view of you as an offender, having regard to the difficult background that you have undoubtedly experienced and was a reflection of the fact that the offending conduct occurred against a background of drug abuse and the effect of drugs upon you. His Honour Judge Shelton pointed out that the mitigating effect of drug addiction in the context of a crime of armed robbery is to be given little weight. He referred to the case of R v Bouchard [1996] 84 ACR, p.499. Your counsel at the plea hearing in this matter conceded that the effect of that decision was something that I needed to consider in imposing sentence upon you today.
8 Your counsel also tendered a draft letter which appears to have been written on your behalf and some certificates which suggests that you have made good use of your time whilst in custody. You have been in custody on and off for a significant period of time now and I note that in passing sentence His Honour Judge Shelton declared 432 days as time served upon the sentence that he imposed upon you in December of last year.
9 I am told that when you were arrested in relation to this matter on 21 July 2010 that you were just about to go and take your driving test; that you had, over a period of couple of months at any rate, settled into a way of life, living with your then-girlfriend's parents and obtaining work and settling into a structured environment and a structured way of life. I was urged to accept that you are capable of rehabilitating yourself when you have the opportunity of doing so. Unfortunately because you have a significant criminal record and because you have been abusing illicit drugs for quite some time, it is difficult to be very optimistic about your prospects of rehabilitating yourself and staying out of trouble once you are on parole. I suspect that there is a deal of good in you and that you are capable of pulling yourself out of this mess. I hope that you have learnt something from your period in custody and that it has taught you that there is a better way of life away from prison and away from drugs. It is only by weaning yourself away from illicit drugs on a permanent basis that you are going to be able to lead any sort of decent, productive and happy life.
10 I am required to punish you. I am required to express the denunciation of this court of offending conduct of this kind and this particular offending conduct and to impose a sentence which not only has the effect of deterring you from committing offences in the future but also deterring others. Perhaps that last factor is the most significant of all of the sentencing considerations that I have just outlined. But I have also got to give appropriate consideration to facilitating your rehabilitation.
11 It seems to me that if I was to pass a sentence today that is appropriate to the seriousness of the offending conduct, having regard to the fact that you have missed the opportunity of parole which, as I understand it, arose in late January of this year the total sentence would be unjustly severe. The circumstance that I am faced with is that you have essentially been serving the balance of the sentence that was imposed by His Honour Judge Shelton whilst you have been waiting for this trial to come on and have therefore, in effect, served an extra six months or thereabouts on the sentence that His Honour Judge Shelton passed upon you. I have to have regard to the totality principle and to ensuring that the sentence that I pass has proper regard to the sentence that you are presently undergoing and to the overall sentence that you will have to serve as a result of not just this offending conduct but also the offending conduct for which His Honour Judge Shelton sentenced you in December of last year.
12 If I had been sentencing you for both this offence and the offences for which you were sentenced in December of last year I would have imposed a total effective sentence that involved a degree of cumulation as between the sentences arising from the conduct for which you were sentenced in December of last year and the conduct for which I have to pass sentence upon you; but it would not have been total cumulation. I think the sort of sentence that I would have been looking to would have given rise to a total effective sentence of about 38 months with a non-parole period of about 25 months. Doing the best that I can, working back from that kind of approach (which I accept is not the orthodox way of approaching sentencing), I think that had I been sentencing you today just for this offence I would have been looking to a total effective sentence of two years and two months with a non-parole period of about 18 months.
13 Doing the best I can to work back and to give effect to the period that you have spent in custody serving the balance of the sentence imposed by His Honour Judge Shelton and passing a sentence that gives some effect to the sentencing principles that I outlined a few minutes ago, I have arrived at a sentence which comes close to, if not achieves, the object that might have been achieved if I had been sentencing you for all offences at the one time.
14 For the offence of armed robbery on the indictment, I sentence you to a term of imprisonment of 16 months and I convict you. I order that you serve a period of five months before you become eligible for parole. That sentence will of course run from today and the effect will be that once your current sentence has expired, which I think is 25 September of this year or thereabouts, you will have another 14 months of the total effective sentence to serve and you will have to serve five months from today before becoming eligible for parole.
15 Is there anything else that I need to order, gentlemen?
16 MR HALGER: I don’t believe so, Your Honour.
17 MR VELLA: No, I don’t believe so either.
18 HIS HONOUR: No? Very well. Thank you very much.
19 MR HALGER: If Your Honour pleases.
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