R v Te Ohaere
[2016] VCC 1409
•22 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00585
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
URIAH TE OHAERE
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 September 2016 | |
DATE OF SENTENCE: | 22 September 2016 | |
CASE MAY BE CITED AS: | R v Te Ohaere | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1409 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | OPP Victoria |
| For the Accused | Mr A. Pyne | VLA |
HIS HONOUR:
1 Uriah Te Ohaere, you have pleaded guilty to nine charges on indictment; five charges of theft (Charges 1, 2, 4, 7 and 8); two charges of handling stolen goods (Charges 3 and 5); one charge of dangerous or negligent driving whilst pursued by police (Charge 6) and; one charge of armed robbery (Charge 9).
2 You have also pleaded guilty to two summary charges of unlawful assault and committing an indictable offence whilst on bail.
3 Mr Hannan, who appeared for the prosecution, opened the circumstances of the offending by reading from a written "Summary of Prosecution Opening" which was tendered.
4 The offending occurred over a period of just beyond a month in October and November 2015.
5 Charges 1 and 2 concerned the stealing of alcohol from liquor outlets. Charges 3 and 5 concerned handling stolen motor vehicle numberplates. Charges 4, 7 and 8 concern stealing tool kits, two of which were valued at $1,399 and the third at $2,299, from tools sales stores. Charges 7 and 8 concern the same store.
6 When leaving the store that is the subject of Charge 4, you were involved in a scuffle with the manager, and this conduct constitutes the summary unlawful assault charge. After leaving the store that is the subject of Charge 7, you were approached and grabbed by a staff member. You threw a punch which did not connect and left. This throwing of a punch is not the subject of a charge.
7 Charge 6 concerns a police chase in Tarneit, when police observed you in a motor vehicle with stolen number plates. You travelled at speeds up to 150 km/h in a 70 km/h zone. At one stage, you were travelling on the wrong side of the road and locked the brakes of your car while travelling at 150 km/h. Police terminated the pursuit, losing sight of your car as it continued at high speed.
8 Charge 9 occurred about two hours after Charge 8, when you re-attended the same tools sales store that is the subject of Charge 4, where the assault on the manager occurred. The manager recognised you. You picked up a chisel and a toolkit valued at $1,573.95 and were approached by the manager. You used the chisel to threaten staff both inside and outside the store before leaving in a car.
9
You had been released on bail in October 2015, and so offended whilst on bail, which is the subject of the summary charge. I do not think it matters,
Mr Hannan, but I did not have the precise date on which Mr Te Oheare was released on bail.
10 MR HANNAN: We do not know it, it is before 12 October - assumed to be.
11 HIS HONOUR: So I could not work out whether all of the offences occurred or not.
12 MR HANNAN: All of them.
13 HIS HONOUR: But it does not matter much from the perspective of sentencing, and certainly the two more serious offences clearly occurred whilst he was on bail.
14 MR HANNAN: Yes.
15 HIS HONOUR: So additionally, any offences committed whilst on bail are to be served cumulatively unless otherwise directed.
16 You have consented to compensation orders concerning each of the tool store victims, and I will make those orders.
17 Pursuant to s.89(3) of the Sentencing Act, after a finding of guilt or conviction concerning Charge 6, I am required to cancel your licence and disqualify you for a period of not less than 12 months.
18
Mr Pyne, who appeared for you, tendered "Plea Submissions on behalf of the Accused", prepared by Ms Rebecca Sleeth, a psychological report from
David Ball, a neuropsychological report from Jane Lofthouse, and an attendance report from Natasha Treweller, an alcohol and drug counsellor from ISIS Primary care. You have some prior criminal history for driving matters, but they are of very little, if any, relevance.
19 Your counsel began by acknowledging the seriousness of your offending. He accepted that it would have had a significant impact on victims, even though no victim impact statements were provided. It was brazen and persistent, he acknowledged. He submitted that you pleaded guilty at the first reasonable opportunity and must benefit from this. He is correct.
20 In addition, he submitted that you are remorseful, and I should treat your pleas of guilty as accompanied by remorse and reflecting a desire on your part to rehabilitate. I accept this.
21 Mr Pyne sketched your background. You are 28 years old. Your mother attended court to support you. Other members of your family are here today.
22 You suffered some disadvantage in your upbringing, including a violent father. However, very importantly argued Mr Pyne, you also have the benefit of a family who love you and care for you, and who provided a supportive environment. That is currently available to you.
23 You were given a solid moral foundation, he argued, and although your offending is very concerning, you have not become antisocial, treating crime as normal and acceptable.
24 The history you gave to Mr Ball and Ms Lofthouse suggests an unsettled upbringing in a dysfunctional family. And although you have a reasonable relationship with your mother, you told Ms Lofthouse you do not speak to your father or siblings.
25 Your offending, Mr Pyne submitted, should be understood in the setting of your intellectual limitations and substance abuse.
26 In short, given recent rehabilitative progress, access to a stable and supportive family network, drug counselling and psychological assistance, the acceptance of responsibility for your criminal conduct, and a desire to make amends and further rehabilitate, I should impose penalties that do not require you to return to prison, but provide an opportunity to demonstrate that you can remain crime and drug free.
27
You were arrested for the current offending on 18 November 2015, and served 119 days in presentence detention before being released on CISP bail on
15 March 2016. Your time in custody was spent at the MRC, and I was told that most of this was in lockdown, involving 24-hour detention in your cell. This had a salutary impact on you, it was submitted, as your rehabilitative progress on release suggests.
28 You lived in New Zealand with your family until you came to Australia age 17. You are now a permanent resident, although not a citizen. You have five siblings. There was some history of instability in New Zealand, and you went to live with an uncle and auntie from the age of 13.
29 Your education was disrupted, with you attending a number of schools. You left at the start of Year 10, age 14. You then attended an alternative school which emphasised practical skills in a farm setting. This lasted for about eight months, when you were too old to continue. In Australia you have lived mainly with your family, except for a period of about 18 months, when you were in your early 20s. Your family have lived in the same location for about a decade.
30 You have a reasonably good work history, except for the period between early 2015 and March 2016, when you were released from custody. You worked, as did your parents and older brother, for the same company, a labour hire firm for several years until early 2015, when you lost your job due to your drug addiction.
31 You returned home to live with your parents in April 2016. Initially you had your wages paid into your brother's bank account to avoid the temptation to spend money on drugs, but over the last month you have been managing your money.
32 You have had problems with alcohol from about the age of 16 or 17, and began using ice when you were introduced to it whilst on holiday on the Gold Coast in September 2014. During the current offending, you were using up to a gram of ice per day. Your offending was to finance your addiction, however you were also gambling.
33 After losing your job in early 2015, you financed your addiction by using your savings and selling assets, and then began offending to do so. You are no longer using ice or gambling.
34 You returned to work with the same company after release from custody.
35 As well as the current offending before me, you also committed a number of dishonesty offences, principally shop thefts from late September 2015 and overlapping with the current offending. The shop theft charges were heard in the Magistrates' Court, and you were released on a community correction order on 11 April 2016, which you are currently undergoing.
36 As noted earlier, you were subject to psychological and neuropsychological assessments. David Ball determined you have a full-scale IQ of 76, doing better on verbal comprehension, but worse on perceptional reasoning. Mr Ball considered you to be a low-functioning and dependent man with some impairment to your capacity to exercise good judgment. He thought you tended to be impulsive, often making poor decisions and frequently acting on short-term considerations. You learnt poorly and slowly from negative consequences. Your social reasoning is unsophisticated, and reflects persisting personality features and dull intelligent. You tend to reduce complex problems to simplistic concrete terms.
37 Mr Ball considered that you suffer a raft of dependent personality features. You operate on the assumption that you are not capable of taking care of yourself, and must find someone who is dependable, and who will support and protect you. You feel inadequate and insecure most of the time, and see yourself as being less effective or able than everyone else.
38 Mr Ball you present as illiterate and innumerate. He confirmed that you must have been affected by your intellectual impairment and the dependent features of your personality at the time of the offending. He thought your intellectual impairment may not remit, and that your dependent personality features will require long-term treatment and management.
39 Mr Ball thought you required intensive and structured cognitive behavioural treatment, as well as drug and alcohol relapse prevention treatment.
40 Ms Lofthouse thought your full-scale intelligent was within the borderline range, with an IQ of 73. She administered a battery of tests, concerning which you fell between the average and borderline ranges.
41 She thought your mild to moderate level of executive dysfunction was of particular concern. This was likely to result in you struggling to process "the abstract nature of day to day life, and also have an effect on the more complex aspects of his life".
42 Accordingly, you are at risk of "impulsive, ill-considered, and rigid problem solving, such as is noted in his drug taking and alcohol use and criminal offending".
43 Ms Lofthouse thought you presented with mild to moderate intellectual impairment that was most liklely present at the time of the offending. She thought your intellectual impairment was not consistent with you having "a significant and generalised development disorder such as intellectual disability". She thought it possible that your intellectual impairment restricted your capacity for reasoned and informed problem solving, and played some part in contributing to your criminal offending. In comparison, she considered substance abuse and gambling are likely to be the factors that played a significant role in contributing to your offending.
44 Ms Lofthouse thought you would be able to benefit from rehabilitation programs, particularly if they were tailored to take account of your intellectual impairments. Counselling to address your substance abuse and gambling is required to reduce the risk of reoffending. You would benefit from developing more positive social skills and having access to community facilities that allow for social engagement, particularly given your difficult childhood, abuse being "passed around" in the family, and unstable housing.
45 Your counsel submitted initially that the Verdins principles were activated, and when the submission was first made the parties may have overlooked the passage in the report of Mr Ball that you must have been affected by your intellectual impairment and dependent features of your personality at the time of your offending, however this statement tells me little about how you would have been affected or to what extent, and what is the relative contribution of your intellectual impairment and dependent personality disorder. It does not address the obvious matter raised by Ms Lofthouse, namely the impact of your substance abuse, and whether this can be sensibly unravelled from the impact of your intellectual impairment.
46 I consider the difficulty of unravelling the contribution of you being drug affected at the time of the offending from any contribution from your intellectual impairment to be such that I cannot adequately assess on the material before me the extent to which any intellectual impairment is likely to have contributed to your conduct on any particular occasion.
47 However, as noted in discussion, the fact of your intellectual impairment and personality issues remains relevant. It helps me to understand who you are, why you did what you did, and what might be done to foster your rehabilitation. This is important.
48 As noted earlier, you are currently subject to a community correction order imposed in the Magistrates' Court. Your counsel tendered "Attendance Report" from ISIS Primary Care. The report is positive, and notes that you are well-supported in your goal of maintaining abstinence. It also noted your plans to study and work towards your goal of becoming a chef.
49 Your counsel submitted that I should release you on a combined sentence of imprisonment, not exceeding time already served, and a CCO.
50 I had you assessed, and determined your suitability for such release, as well as requesting a report on your progress to date. Your compliance is not particularly encouraging. You have incurred a significant number of unacceptable absences from unpaid community work. The reason for this was discussed this afternoon.
51 I accept that there have been family pressures requiring you to attend at your day job.
52 You have incurred two unacceptable absences concerning the drug and alcohol counselling condition, although I do place considerable weight on the positive report from your alcohol and drug counsellor.
53 Mr Hannan identified what I consider to be the critical question, whether I must impose a sentence that requires you to return to prison.
54 I intend to pay regard to your disadvantaged background, as well as your low IQ and personality disorder, to impose a sentence that I consider particularly generous in all the circumstances. Perhaps too generous, because I consider it highly desirable to not require your return to prison at this stage, and to give you the opportunity to prove that you can put this spate of serious offending behind you, avoid substance abuse, and remain crime free.
55 On the five charges of theft (Charges 1, 2, 4, 7 and 8), you will be convicted and released on a community correction order for 30 months.
56 On the charges of handling stolen numberplates (Charges 3 and 5), you will be convicted and fined an aggregate of $500.
57 On the charge of dangerous or negligent driving whilst pursued by police (Charge 6), you will be convicted and sentenced to 119 days' imprisonment, combined with a CCO for 30 months. Your licence is cancelled, and you are disqualified from obtaining a licence for 12 months from today.
58 On the charge of armed robbery (Charge 9), you will be convicted and sentenced to 119 days' imprisonment and a CCO for 30 months.
59 On the summary charge of assault, you will be convicted and fined $250.
60 On the summary offence of committing an indictable offence whilst on bail, you will be convicted and fined $250.
61 I order that the sentences be served concurrently. That also means that each sentence of 119 days' imprisonment is to be served concurrently.
62 You have already served 199 day in presentence detention. I declare that this period is to be reckoned as time already served under the sentence I have imposed.
63 That means you will have to pay a fine, a total fine of $1,000, and be released on concurrent CCOs for 30 months.
64 The conditions of each CCO will be the same, and as recommended, namely:
(i)That you be under supervision.
(ii) That you undergo treatment and rehabilitation for drugs.
(iii) That you undergo treatment and rehabilitation for alcohol.
(iv) That you undergo treatment and rehabilitation for mental health.
(v) That you undergo programs to reduce re-offending.
(vi) That you perform 200 hours of unpaid community work.
65 I have limited those hours, largely because of the matters that were put to me this afternoon by your counsel.
66 I want to see you remain in employment.
67 The identification of what the sentence on Charges 6 and 9 would have been had you not pleaded guilty is quite artificial. All other things equal, which of course they would not have been, I expect I would have sentenced you to a term of imprisonment of about ten months had I combined it with a CCO. It would have been longer had I not so combined it.
68 Now, you must understand that if you fail to take this opportunity and you breach the CCO, you will have to come back before me, and you are likely to be returned to prison for a substantial term, all right? You can come out of the dock now, and we will prepare the documents. My associate - is there anything that needs correcting?
69 MR PYNE: Just two matters, Your Honour. The first was that Your Honour said that during the time that he spent in custody he was held at the MAP. It was the MRC, the Metropolitan Remand Centre.
70 HIS HONOUR: I had in mind the prison in the city, have I got that right or wrong?
71 MR PYNE: No, it's not the - - -
72 HIS HONOUR: Where is the MRC?
73 MR PYNE: I do not know what suburb it is in.
74 MR HANNAN: It is over the Westgate Bridge.
75 HIS HONOUR: Yes, all right, well I will have that corrected when I revise the order, so I will make that correction.
76 MR PYNE: And there is one other matter - Your Honour, you said that he - - -
77 HIS HONOUR: I mean, I think it makes no difference which prison he was at, it is the lockdown that was critical.
78 MR PYNE: No. The other thing that Your Honour said was that he was released back to his home in Aptril 2016. That actually happened in March, he was granted bail in March.
79 HIS HONOUR: I thought he was released in March and he went home in April?
80 MR PYNE: Release in March and went home in March. Got the CCO in April.
81 HIS HONOUR: The note I made is that he was released in March in went home in April, but if he went home in March after his release, all the better.
82 MR PYNE: I just thought I would raise those two factual matters, that is all.
83 HIS HONOUR: Thank you.
84 MR HANNAN: Your Honour, I was a little confused when Your Honour spoke about the phone call made to Corrections, whether or not the hours are concurrent. Did you mean between Charges 6 and 9?
85 HIS HONOUR: They are.
86 MR HANNAN: They are?
87 HIS HONOUR: Between Charges 9 - but they are also concurrent - - -
88 MR HANNAN: On the already serving hours?
89 HIS HONOUR: Correct.
90 MR HANNAN: That is the first I have learnt - I have heard about, I did not know that.
91 HIS HONOUR: Me too, it was news to me, Mr Hannan. But in the circumstances here, given what I have been told about Mr Te Ohaere's employment and the difficulty of doing the house, I think 200 is sufficient if he does 200 during the currency of my - - -
92 MR HANNAN: Okay, so you have sentenced on that basis, that they are concurrent with the 200 that is currently being done?
93 HIS HONOUR: Correct. Correct. Mr Bastianon said it is still going to take him some time to get the order together, so I will leave the Bench. I am sorry to detain you, but as soon as it is ready, we will complete the formalities.
94 (Short adjournment.)
95 HIS HONOUR: All right, well the orders look all right to me. Counsel have checked them, they look all right to you I am told, so - - -
96 COUNSEL: Yes, Your Honour.
97 HIS HONOUR: We will have Mr Te Ohaere sign them. I presume that the order in the Magistrates' Court was for 12 months, do you know whether it was or not? So I do not know whether that means that I will require Mr Te Ohaere to complete his 200 hours in 12 months, or a longer period. But it is a matter for them, I think, to work out.
98 MR HANNAN: It is.
99 HIS HONOUR: It is not matter that I am troubled about one way or the other.
100 MR HANNAN: Yes.
101 HIS HONOUR: Because I have already indicated my main concern here is that he remain in employment, and the other conditions are of greater significance, in my view, than the unpaid community work. All right, well I will sign that, thank you. I sign the compensation orders, so you should be supplied with copies of them. All right, thank you both for your help.
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