IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-00655

DIRECTOR OF PUBLIC PROSECUTIONS			
			
v			
			
TATEM CUMMING			

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JUDGE:	HIS HONOUR JUDGE MAIDMENT	
WHERE HELD:	Melbourne	
DATE OF HEARING:	4 October 2024	
DATE OF SENTENCE:	29 October 2024	
CASE MAY BE CITED AS:	DPP v Cumming	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1745	

REASONS FOR SENTENCE
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Subject:		Plea - sentencing
Catchwords:		Theft - affray - cause injury intentionally - false imprisonment - unlicenced driving
Legislation Cited:	
Cases Cited:	Bugmy v The Queen [2013] HCA 37
Sentence:		1-year adjourned undertaking plus 1-year CCO
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr R. de Vietri	Office of Public Prosecutions	
			
For the Accused	Ms T. Skvortsova	McNally & Gleeson Lawyers	

HIS HONOUR:
1	Tatem Cumming, you have pleaded guilty to an offence of theft, for which the maximum penalty is imprisonment for 10 years, to an offence of affray, for which the maximum penalty is imprisonment for five years, to an offence of causing injury intentionally, for which the maximum penalty is imprisonment for 10 years, and to an offence of false imprisonment, for which the maximum penalty is imprisonment for 10 years.  You have also pleaded guilty to, and asked me to take into account, a related summary offence of unlicenced driving, for which the maximum penalty is imprisonment for six months.
2	You have no prior convictions, although you admitted to appearances before the Frankston Magistrates' Court in 2022.  They are relevant only to your prospects of rehabilitation, but I do not regard them as having a significant impact on that consideration.
3	The prosecution tendered and relied upon a summary of prosecution opening for plea dated 10 September 2024.  It sets out in some detail the offending conduct, which can reasonably be summarised as your involvement with your then partner, Corey Hughes, and his father, John Persoons, in attacking a person who was then apparently a friend of yours, to whom you had gone to discuss problems that you were having with your partner, Corey Hughes.  Corey Hughes found out about it and resolved to seek revenge upon your victim by engaging you to drive a stolen car with him and his father in it to the shopping centre car park at Frankston where you had arranged to meet with your victim.  
4	Upon arrival, you were aware that there was a likelihood that your victim would be confronted physically by Mr Hughes and Mr Persoons and that it was likely he would be injured by them.  You participated in that venture, knowing what was likely to occur.  Upon arrival at the shopping centre at about 8.40 am on 19 March 2022 the plan was executed with your co-offenders Corey Hughes and his father approaching your victim in the car park.  Mr Hughes had a weapon in the form of a baseball bat or similar.  He used that to attack the victim with the assistance of Mr Persoons.
5	Mr Persoons eventually had to restrain Hughes from the ferocity of his attack.  Your victim was then bundled into the car and driven away by you.  That is the foundation for the offence of false imprisonment to which you have pleaded guilty.  In the car, further punishment was inflicted upon your victim by 
Mr Hughes.  As a result, he suffered very severe injuries which have left him with seemingly permanent disablement.  Although there is no victim impact statement, it is plain from the report from the treating medical practitioner that his injuries are serious and probably permanent.
6	Indeed, during the committal hearing in April 2022, your victim was forced to give testimony by typing answers to questions on his mobile phone, that being the only means by which he could communicate.  It was made plain during the plea hearing that your plea of guilty in relation to charges 2, 3 and 4 involved your acceptance that you were guilty of the offences on the basis of statutory complicity.
7	You were 18 years of age at the time.  You are aged 22 years now.  Your counsel provided me with plea submissions dated 1 October 2024, along with a report from Daniella Kocic, psychologist, dated 2 September 2024, and a letter from your half-sister which is undated but runs to three and a half pages. I found it particularly useful.  It dovetails with the description of your background and personal history set out in Ms Kocic's report and provides some very insightful information about your rehabilitation as well as your background and developmental history.  It has been helpful in identifying matters relevant to sentence.	
8	In addition, I was provided with a letter from you.  I do not normally give letters from people who are represented by counsel much weight, but I take into account the sentiments you express in that letter and I did find it helpful.  I also received a further letter from you dated 1 October 2024, a letter from your father dated 1 October 2024, a letter from Windana dated 8 September 2022, a letter from PIVOT Frankston dated 16 August 2022 and an affidavit of Calvin Sloan dated 1 October 2024 with attachments.
9	Your counsel relied upon your past history, which supports the proposition that I should apply what are known as the Bugmy principles arising from your seriously deprived upbringing, which had a strong connection to your mother's illness, to her drug addictions and her neglect of you.  Your father was not able to override and ameliorate the effects of her conduct towards you and you were subject to intervention by the Department of Human Services or the equivalent from age 13 or thereabouts.  You completed school year 8. But your introduction to illicit drugs at age 13 or 14 was a significant factor in the history of bad choices of relationships, including that with your co-offender Corey Hughes, which led to your offending conduct.
10	As your counsel rightly points out, as a youthful offender I should look to rehabilitation as a significant sentencing factor.  You have mental health issues which are referred to by Ms Kocic, although they do not seem to be particularly serious.  You have what she describes as some threshold symptoms of post-traumatic stress disorder and she indicates that you are predisposed to traumatic experiences that you endured during childhood.
11	There has been a considerable delay between the date of your offending and now.  That has caused you stress.  The prospect of a term of imprisonment weighed heavily upon you, particularly as you proceeded with your rehabilitation.  It is to your credit that you were able to make significant progress in your rehabilitation from drug misuse and addiction.  You now have a child and what seems to be a stable partner relationship.
12	You have taken the opportunity to proceed with making something of your life.  Your half-sister indicates that you have come a long way and that you are a different person from the person who committed these offences.  I accept what she says as being accurate.  Whilst I applaud the progress you have made, I am sure you recognise, and I am sure that your counsellors, in particular your drug counsellors, have pointed out to you, that you are still vulnerable, and that a setback in your life may well make it difficult for you to avoid the temptation of resuming the long-standing drug habit that you had at the time of your offending.  You were using methamphetamine at the time and no doubt that played a part in your committing these offences.
13	You have pleaded guilty and you will get credit for that.  You spent some time in custody during a period when there were restrictions in the prison system making that time particularly hard for you.  I take into account the fact that, in addition to the two days attributable to this offending, you spent another 68 days in custody. That is a significant taste of the consequences of further offending and the prospects of further terms of imprisonment which will have hopefully persuaded you that that is something you need to avoid.
14	I accept that your conduct since this offending, particularly in progressing your rehabilitation, suggests you are genuinely remorseful.  I do not hold it against you that it took some time for you to indicate a willingness to plead guilty to the offences.  I understand that there was some negotiation and a reluctance to admit the role that you actually played and your knowledge of the events and of the intentions of your co-offenders.
15	Mr de Vietri provided me with a document headed, 'Prosecution Submissions on Sentence' which is well-balanced, fair and helpful.  There was discussion during the course of the plea hearing about the sentencing options available to me.  Your counsel sought to persuade me that an adjournment of the matter for a period of 12 months would be a sufficient and adequate way of dealing with the matter.  Mr de Vietri on the other hand, pointed out the merits of a Community Correction Order.
16	Your counsel argued that that would impose serious obligations upon you that might be difficult for you to fulfil because of your role as a parent.  You will have listened to my pointing out that these were serious offences and I have to impose a sentence that reflects that adequately.  The argument of the prosecution was that an adjournment of the matter with condition that you be of good behaviour would not be a sufficient reflection of the seriousness of these offences.
17	You have been assessed as suitable for a Community Correction Order and that is what I intend to impose upon you.  I have in mind that the order will last for 12 months and will commence today.  
18	It will require you to attend Geelong Community Correctional Services within two clear working days of today.  It has certain terms which are referred to in the order as mandatory terms.  That means that they apply to all Community Correction Orders.  The mandatory terms are that you must not commit another offence for which you could be imprisoned during the period of the order (12 months); you must comply with any obligation or requirement prescribed by the Sentencing Regulations (and that involves, apart from anything else, not turning up to appointments drug-affected or drunk); you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate; you must report to the Community Corrections centre within two clear working days of the commencement of the order; you must let a Community Corrections officer know within two clear working days of you changing your address or job; you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and you must obey all lawful instructions from and directions of the Secretary or his or her delegate. 
19	In addition, I am going to add some other terms which are designed to provide you with further support, to assist you in maintaining your drug-free status, and to deal with mental health issues.  I understand that you have voluntarily sought assistance with your mental health but that money is short and it is difficult for you to pay for treatment.  Hopefully this order will enable you to get some assistance during the period of the order.
20	It is important for you to understand that these courts see many people, like yourself, who have become seriously addicted to hard drugs.  Methylamphetamine is a particularly pernicious drug.  It emboldens people to commit offences.  You know the effects of it.  You must recognise that effectively you are always an addict, because having been addicted once you are always vulnerable to relapse.  I have no doubt you have heard this before and I am not telling you anything that you do not already know, but the court sees so many people following a revolving door, and before they know it, they went from 22 to 40 years of age.  They have gone clean for a while, back to drugs, clean, back to drugs, in and out of gaol, and they are building up a criminal history which makes it very difficult for them to lead any kind of normal life.
21	The courts have an obligation, to the extent that their powers can be exercised appropriately, to provide assistance with continued rehabilitation of young persons.  I am going to require you to perform 80 hours of unpaid community work, but each of those hours can be utilised by your completing an equivalent number of hours of rehabilitation.  So that any hour you spend with a drug rehabilitation program or with mental health rehabilitation programs is offset against that total of 80 hours.  That has been recommended by Corrections and I think it is a good idea because it keeps you focused, and it means you can avoid doing any of the 80 hours of unpaid community provided you complete the equivalent amount of time in your rehabilitation.
22	You will be under supervision, so you will have to attend appointments.  But that too is designed to keep you focused.  It is all part of the support and rehabilitation process incorporated within this order.  There is a punitive element to it. You do require punishment for this in addition to that which you have already received.  I also need to mark the seriousness of your offending with an appropriate sentence.
23	I have no doubt you have discussed the prospect of a Community Correction Order with your counsel.  I will give you an opportunity of further discussion with counsel, but you will have to agree to it, because I cannot make the order unless you do.  I will give you that opportunity in a few minutes.  But, before I do that, I am going to tell you what I am going to do with you altogether in the sentencing process.
24	Tatem Cumming, I propose to sentence you as follows:
25	For the offence of theft of the motor vehicle, the subject of Charge 1, the order I make is that, without conviction, the matter be adjourned for 12 months upon condition that you be of good behaviour during that period and do not commit any other offences and that you report to the court if required to do so.  The reason I am imposing that is because giving you a disqualification of your licence, which I would have to do if I convicted you, would make it much more difficult for you to comply with the Community Correction Order and otherwise to manage your life, particularly since you have a young child.  For social and economic reasons, that is an appropriate order for me to make in all the circumstances.  
26	In respect of each of Charges 2, 3 and 4 and the offence of unlicenced driving, you are convicted and will be the subject of a Community Correction Order in the terms I have outlined.  
27	If you do commit another offence during the period of the order, firstly you would be liable for breach proceedings and being brought back, probably before me, and sentenced to up to three months' imprisonment for just breaching the order.  In addition, if you have committed a further offence, you would be punishable for that offence and you could be resentenced for these matters.  That may well leave the court with little option other than to impose a more severe sentence, possibly even a term of imprisonment.  	

28	Those are consequences that I am sure you would like to avoid.  There's one more thing I just want to say to you and that is, I hope that I don't see you again. I mean that in the nicest possible way.  I hope you avoid any further court appearance.  You have some onerous responsibilities now and I see every prospect that you can meet the challenges that lie ahead of you without further resort to drugs.  I have signed the order. It is now in place. You may leave the dock.
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