josh

IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
 Suitable for Publication	
Case No. CR-24-01318 

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
THOMAS TE KAPONGA		

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JUDGE:	HER HONOUR JUDGE WILMOTH	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 October 2024, 9 December 2024, 11 February 2025	
DATE OF SENTENCE:	14 February 2025	
CASE MAY BE CITED AS:	DPP v Te Kaponga	
MEDIUM NEUTRAL CITATION:	[2025] VCC 125		

REASONS FOR SENTENCE
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Subject: 	Criminal law - sentence	
Catchwords: 	Pleaded guilty – aggravated exposure of an emergency worker to risk by driving recklessly, 	dangerous driving while pursued by police, theft of motor vehicle,  5 summary charges – fraudulent use of registration label, unlicenced driving,  failing to stop a motor vehicle when directed by police to do, possessing a prohibited  weapon – machete, dealing with property suspected of being proceeds of crime
	
Cases Cited:	Nelson v R VSCA 219, Mckay v v R VSCA 8, Bugmy v R  [2013] HCA, Verdins v R [2007] VSCA 92
Sentence:   	3 years  6 months imprisonment non parole period of  2 years 4 months	

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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr E. Fryar	Office of Public Prosecutions	
			
For the Accused	Mr M. Cookson	Emma Turnbull Lawyers	

HER HONOUR:

1	Thomas Te Kaponga, you have pleaded guilty to one charge each of aggravated exposure of an emergency worker to risk by driving recklessly, dangerous driving while pursued by police and theft of a motor vehicle.
2	You have also pleaded guilty to five summary charges - they are:  fraudulent use of a registration label, unlicensed driving, failing to stop a motor vehicle when directed by police to do so, possessing a prohibited weapon, namely a 
double-edged machete, and dealing with property suspected of being the proceeds of crime.
3	I will be sentencing you to a term of imprisonment of three years and six months, with a non-parole period of two years and four months. I will now explain my reasons for that sentence.
The offending
4	The offending occurred on 17 January 2024. At about 11.24 pm, on 16 January 2024, you and a co-offender went to the Toyota Australia pre-delivery car yard in Essendon Fields. You cut a hole in the cyclone fencing around the perimeter of the property and gained entry to the car yard. You then got into an unregistered Toyota Land Cruiser, started the engine with the keys which were inside the vehicle and used it to ram the entry gate open.
5	You then got into an unregistered white Toyota Fortuna and the other offender got into a silver Toyota Fortuna and both drove away. That is Charge 3 on the indictment, theft of motor vehicle. The Land Cruiser was left at the scene.
6	At about 1.30 pm on 17 January 2024 police began tracking the white Fortuna using the in-built tracking software.
7	About an hour later a police air-wing located and maintained observations of the white Fortuna driving through the western suburbs of Melbourne. That is summary Charge 3, unlicensed driving.
8	At about 2.38 pm a police vehicle attempted to intercept you on Panam Drive, Hoppers Crossing with lights and sirens activated. You slowed down and then accelerated at high speed, travelling east on Panam Drive towards Tullamarine. That is summary Charge 7, failing to stop at the direction of police.
9	The police air-wing observed you drive recklessly through several western suburbs reaching speeds of 137 kilometres per hour, disobeying approximately seven traffic lights, overtaking dangerously approximately 13 times and crossing onto the incorrect side of the road approximately 19 times. That is Charge 2 on the indictment, dangerous driving while pursued by police.
10	At approximately 3.29 pm the police air-wing stopped surveillance of the stolen car and police units on the ground continued the pursuit.
11	At about 3.47 pm, police units including Senior Constable Ramandeep Singh and Sergeant Stephen Bosnar, located the white Fortuna stationary at the intersection of Birch Avenue and Carol Grove, Tullamarine. You were in the driver’s seat and the co-offender, Rebel Power, was in the passenger seat.
12	An un-marked police car approached you and stopped nose-to-nose with the white Fortuna, with lights and sirens activated. You then reversed the white Fortuna before accelerating forward and colliding with the police car, causing damage to it.
13	A highway patrol vehicle, also unmarked, attended the scene with lights and sirens activated and applied positive pressure to the Fortuna in an attempt to stop you.
14	You attempted again to flee the scene in the Fortuna whilst Singh deployed OC spray through the driver’s open window. The patrol vehicle accelerated forward pushing the Fortuna about five metres further down Carol Avenue. Sergeant Bosnar ran around behind the Fortuna shortly before you reversed it in the direction in which Bosnar had run, colliding with a civilian vehicle. It is not alleged that you knew Sergeant Bosnar’s position at this time. That is Charge 1 on the indictment, exposing emergency service workers to risk by driving recklessly.
15	The patrol vehicle continued to apply pressure to the Fortuna causing further damage to the police vehicle, before a marked police vehicle boxed in the Fortuna. You continued to attempt to escape in the Fortuna. A police officer then used his baton to smash the driver’s window and extract you from the car.
16	Police searched the Toyota and found assorted identification documents in the names of people other than you and the co-offender, and that is summary Charge 20, dealing with property suspected of being the proceeds of crime.
17	They also found a large machete, which is summary Charge 18, possessing a prohibited weapon. 
18	During the offending the Fortuna was bearing counterfeit registration plates, which is summary Charge 2, fraudulently using a registration label.
19	After the arrest you experienced breathing difficulties and were transported to hospital where you were admitted. A blood sample was taken from you which was found to contain 0.41 milligrams per litre of methylamphetamine.
20	On 20 January you were discharged from hospital and taken to Broadmeadows Police Station where you gave a 'no comment' interview and were remanded into custody.
21	Following a contested committal hearing on 5 and 8 August 2024 you were committed to stand trial and indicated a plea of guilty to these charges.

The arrest
22	The circumstances of your arrest and the aftermath are somewhat unusual.
23	It was concluded from the evidence at the committal that when you were extracted from the car, you were placed face down on the ground lying on your front. You were then punched twice to the back of the head by one of the police and struck seven times with a baton by another. You did not understand why you were being struck but the police believed you remained a risk because you had been observed to have placed your hands in your pockets when taken from the car. 
24	Police footage from a body-worn camera showed your hands covering your face at the time. In any event, you were struck multiple times. You sustained head injuries from these blows and had breathing difficulties. You were seen with blood coming from the side of your head where you had been struck, drooling from the mouth, which could have been equally consistent with your face or head having been cut by the broken glass from the car window.
25	Medical records from Royal Melbourne Hospital indicate that you were on the Glasgow Coma Scale of seven and had haematomas on your head with multiple lacerations to your face and upper limb. A metallic foreign body was removed from your scalp. You remained in hospital for three days. 
Gravity of offending
26	Turning now to the gravity of the offending, I note first that the maximum penalty for Charges 1 and 3 is ten years' imprisonment, and for Charge 2 it is three years.
27	For summary Charge 2 the maximum penalty is two months' imprisonment.  For summary Charge 3 it is not more than six months.  For summary Charge 7 it is 12 months.  For summary Charge 18 it is two years and for summary Charge 20 it is two years. Fines are also available for the summary charges  instead of prison, or in the case of summary Charge 7, in addition to prison.
28	The charges cover a range of seriousness, and when combined and considered in the context in which they occurred, they are indeed very serious, particularly Charges 1 and 2. 
29	Your conduct exposed the police members and the public to danger and required extensive police involvement in your apprehension. In the process you caused damage to five vehicles, although you are not charged with that offence, and it forms no part of the sentence I will impose.
30	You did not deliberately drive towards any police member, as has occurred in other cases, and no-one other than yourself was injured. Sergeant Bosnar said at the committal that he did not believe you were aware that he was behind the car when you reversed.
31	But as Mr Fryar for the prosecution put it, you exposed persons to risk by driving in the general direction of police while trying to escape. The prosecution submission was that your conduct was a serious example of this type of offending. Mr Fryar compared it with the circumstances in two cases involving the same charge, in the context of other offending as well. 
32	In both Nelson v R and McKay v R the offender exposed police officers to risk through driving, but in each case the risk was more extensive with police seated inside their vehicle when the offender collided with it. Each offender in those cases had many and varied mitigating circumstances and both were a few years older than you. As both counsel seemed to concede in the last plea hearing, there are similarities between those cases and yours, but distinguishing factors as well. The sentence for the most serious charge in both those cases, which is Charge 1 in your case, was imprisonment for three years.
33	Mr Cookson on your behalf submitted that the seriousness of Charge 1 should be assessed as low to mid-range.
34	My view is that the gravity of your overall offending can be placed at the level of medium seriousness.
Personal background and circumstances
35	You are a 27-year-old single man, born in New Zealand and of Maori heritage. You have a twin sister and two much older siblings. Your early life was marred by the violence of your father towards your mother, and marital discord generally, with physical and verbal fighting. You and your twin sister were also the victims of this violence.
36	At the age of ten or 11 you were diagnosed with ADHD and prescribed Ritalin, which you stopped taking after a week because of unpleasant side-effects.
37	Your father died of cancer when you were 11 or 12. An uncle also died of cancer and your older brother drowned. Around this time you struggled emotionally and your behaviour deteriorated. 
38	These circumstances give rise to the application of what is called the Bugmy principle, that the effects of childhood deprivation can be long-lasting and do not diminish with time. That deprivation can impair the person’s capacity to mature and to make decisions, thus diminishing their moral culpability, and this applies in your case, to be taken into account.
39	Returning to your childhood circumstances:  after several years your mother re-partnered and moved to Melbourne. After finishing Year 9 in New Zealand you also came to Melbourne to live with your mother and did not compete any further education. In Australia you worked in the construction industry as a bricklayer.
40	You had a relationship at the age of 18 or 19 with Samantha and your daughter was born. You began to smoke cannabis at this time, but your partner disapproved and the relationship ended. You began to live with friends and commenced to use the drug 'ice'. Your use escalated between 2017 and 2020, with increasing instability in your life.
41	From 2020 you stayed out of trouble, but another relationship, with Emily, broke down and your use of ice spiralled. You were not working consistently and you self-medicated with drugs. You were not coping with your distress at separating from Emily and you were consuming around one gram of methylamphetamine per day.
42	You have been held on remand since your arrest and have maintained telephone contact with your eight year old daughter, preferring not to have physical contact with her to prevent her exposure to the prison environment. You have completed an anger management course, and for the first time drug and alcohol courses. You are working, cleaning windows.
43	You were assessed by psychologist Ms Gina Cidoni on 14 October 2024 and she has provided a report to the court.
44	Ms Cidoni considered your insight into your use of substances to numb emotions was fair, but your judgment was assessed as poor given your history of relapsing into drug use and engaging in criminal activity.
45	Testing conducted by Ms Cidoni revealed extremely severe levels of psychological distress. She confirmed the diagnosis of ADHD at a high level, causing significant impairment in daily functioning. She noted hyperactive and impulsive behaviours contributing to poor decision-making, especially in high-stress environments, leading to drug use and criminal activity.
46	She also confirmed post-traumatic stress disorder, including the experience of a high degree of recurrent distressing memories of a traumatic event. For example, in prison, the sound of keys and seeing prison officers are triggering distress consistent with post-traumatic stress disorder, causing you to isolate and remain in your cell.
47	Ms Cidoni also noted the presence of severe stimulant use disorder, moderate alcohol use disorder and moderate major depressive disorder.
48	She found your verbal reasoning and working memory abilities are in the borderline range, meaning you are likely to struggle with understanding and processing complex verbal information. This can lead to impulsive decisions and other cognitive challenges which can affect your social connections and ability to navigate everyday situations. 
49	Significant impairment was also caused by your daily use of methamphetamine over the past five years, which later escalated. Ms Cidoni noted that this was the primary driver behind your offending, as it intensified your impulsivity and clouded your judgment, leading to reckless decisions such as the high-speed car chase and attempts to evade arrest. The drug acted as a disinhibitor, severely impairing your ability to foresee the consequences of your actions and driving you into dangerous, impulsive behaviour.
50	The drug also exacerbated your ADHD symptoms, amplifying your impulsivity and reducing your capacity for self-control. It was your major depressive disorder which led you to self-medicate with drugs, and in turn the drugs further fuelled your inability to cope with the effects of the trauma which had its origins in your childhood.
51	Environmental factors such as your unstable living conditions, negative peer group influences, unemployment and financial instability added to this complexity. As Ms Cidoni put it, this created a fertile ground for your offending.
52	Your plea of guilty is a mitigating factor as it has avoided a trial and spared witnesses from having to give evidence before a jury. A contested committal was held, focussing on the issues of intention or recklessness, and as a result all charges of intent were discharged. You accepted the prosecution offer to plead guilty to recklessness.
53	The value of your plea to the criminal justice system means you are entitled to a discount on your sentence, and I take that into account.
54	I also accept your plea as an indication of remorse, which you have expressed to the neuropsychologist Ms Hall, and Ms Cidoni considered that you have some insight into the reasons for your offending and the need to change your ways.
55	As to the force used in your arrest, the prosecution explanation is that when you were extracted from the car through the window broken by the police, you did not present with open empty hands and so the police used force consistent with their training.
56	The blood seen on you at the time did not seem consistent with the two strikes to your head that the police had delivered during the arrest and could have come from cuts from the broken glass, or from being face-down on the ground.
57	These possibilities in the circumstances would likely reduce the degree of extra-curial punishment, although the fact of the injuries being suffered may be enough to partly moderate your sentence. Ms Hall thought it most likely that you sustained a mild traumatic brain injury or concussion from the arrest event, which would usually resolve within three months. Mr Cookson on your behalf submitted that this should be regarded as extra-curial punishment in the same way as the post-traumatic stress disorder, which was pre-existing from your childhood but was exacerbated by the circumstances of the arrest. I take that into account and apply it to modify the individual sentences and the overall result.
58	Mr Cookson submitted, based on Ms Cidoni’s report, that your pre-existing conditions of some complexity established a realistic connection with the offending and so the Verdins principles of Limbs 1 to 4 are enlivened. On the face of it, that would appear to be the case. If so, it would result in the lowering of your moral or criminal culpability and therefore a moderation of the need for general deterrence. 
59	A neuropsychological report has been obtained from Ms Bronwyn Hall, the neuropsychologist who assessed you recently. Ms Hall concluded that the pattern of test results is not consistent with permanent acquired brain injury from any cause, including the injuries you suffered during the arrest.
60	However, Ms Hall also concluded that although you do not meet the criteria for intellectual disability, you do have longstanding cognitive limitations that would impact your functioning in various ways. The main problem appears to be impulse control. She considers that these limitations may make you vulnerable in custody, which together with your relative youth, could mean that a lengthy custodial sentence carries the risk of further socialising you towards criminality.
61	However, the inter-relatedness of your complex disorders means that it is very difficult to determine to what extent your pre-existing conditions caused your offending given that your use of methylamphetamine, or ice, over many years may have played a role in exacerbating your symptoms of ADHD and possibly depression.
62	The opinions of both Ms Hall and Ms Cidoni are, described broadly, that your cognitive limitations would have affected your decision-making at the time of the offending in such a way as to reduce your moral culpability to some extent, according to the principles in Verdins v R. Your decision-making would also have been compromised by the contribution of your long-standing drug abuse, and there is no way that can be precisely determined.
63	Whatever the effect of the Verdins principles, your moral culpability remains relatively high because of the danger and risk you caused and the need for protection of members of the emergency services as well as the public, albeit that that need for protection must be modified by proportionality. 
64	Both general and specific deterrence are important sentencing considerations. Your criminal history is considerable, beginning in 2017, when in an angry state you assaulted a police officer. You have several convictions for unlicensed driving. This background is relevant because, combined with your drug abuse, it places hurdles in the way of your successful rehabilitation. 
65	On the more positive side, the CISP report obtained recently notes that your time on remand has resulted in your motivation to change.
Sentencing discussion
66	It is agreed between the parties that the offence of aggravated exposure of an emergency worker to a risk by driving is a Category 2 offence under s5(2H) of the Sentencing Act. A sentence of imprisonment must be imposed unless the exceptions in sub-paragraph (c) (i) or (ii) or sub-paragraph (e) apply.
67	Sub-paragraph (i) applies if the offender had impaired mental functioning at the time of the offence that is causally linked to the commission of the offence, and 'substantially and materially reduces the offender’s culpability'.
68	Sub-paragraph (ii) applies if the offender had impaired mental functioning that would result in the offender being subject to 'substantially and materially greater than the ordinary burden or risks of imprisonment.'
69	It is apparent from Ms Hall’s report that you are indeed finding prison a difficult experience with a worsening of your symptoms of PTSD.
70	Mr Cookson submitted that the legislative exceptions to imprisonment to  which I have just referred, can be viewed as being in parallel with the principles of Verdins and that both apply in this case. He submitted that the exception under s5(2H) (e) is also enlivened, which provides that prison is not required if there are 'substantial and compelling circumstances that are exceptional and rare' and that justify not making such an order.
71	I was referred to the case of Wallis, a decision of a judge of this court in 2020. Although the context of the driving behaviour was very different in that case, aspects of the risk to the police were not dissimilar. There were similar problems in disentangling the offender’s mental disorder from his drug abuse. The offender was placed on a combined prison and Corrections sentence, the learned sentencing judge having been satisfied that the offender met the exceptions required by the legislation. 
72	As required by sub-paragraph (i) there is some causal link between the commission of the offending and your impaired mental functioning, but not to the extent that it substantially and materially reduces your culpability. As I said earlier, your moral culpability remains relatively high.
73	Similarly, while your impaired mental functioning will likely make imprisonment more burdensome for you than for others, that burden would not be substantially or materially greater, as required by sub-paragraph (ii).
74	In considering sub-paragraph (e) I am similarly not persuaded that there are substantial and compelling circumstances that are exceptional and rare that justify avoiding imprisonment.
75	I am conscious of the need to take into account what is described as the definite risk of deportation to New Zealand and the anguish that this will cause you while in prison. Deportation is likely because you are to be sentenced to at least 12 months’ imprisonment. Your siblings live in New Zealand, but your life is here in Australia since the age of 14. Deportation would substantially change your life, likely to your disadvantage, with limited employment prospects and very reduced contact with your daughter.
76	The seriousness of the conduct overall places the gravity of the offending at a medium level at least, as I said earlier. The dangerous driving and the police chase which terminated in the final scene raise the level of seriousness of the aggravation contained in Charge 1. A term of imprisonment of 12 months or less would not reflect that seriousness, and relevant mitigating circumstances cannot bring about such a modest sentence.
77	Mr Te Kaponga, I now sentence you to the following terms of imprisonment.  Mr Fryer, my associate has just given Mr Cookson an extract from this part of the sentence which sets out the specific sentences, so I am sorry I cannot give that to you now.
78	MR FRYER:  I understand, no problem.  Thank you, Your Honour.  
79	HER HONOUR:  For Charge 1, aggravated exposure of an emergency worker to risk by driving recklessly, two years' imprisonment.
80	For Charge 2, dangerous driving while pursued by police, 18 months.
81	For Charge 3, theft of a motor vehicle, two years.
82	For summary Charge 2, fraudulently using a registration label, one month.
83	For summary Charge 3, unlicensed driving, four months.
84	For summary Charge 7, failing to stop when directed by police, six months.
85	For summary Charge 18, possession of a prohibited weapon, 12 months.
86	For summary Charge 20, dealing in property suspected of being the proceeds of crime, nine months.
87	The sentence for Charge 1 is the base sentence for purposes of cumulation. I make the following orders for cumulation:
88	Six months of each of the sentences for Charges 2 and 3, and three months of each of the sentences for summary Charges 7 and 18, are to be served in cumulation upon the base sentence. The other sentences are to be served concurrently in order to acknowledge the need for totality and proportionality.
89	This results in a total effective sentence of three years and six months. I order that you serve a minimum period of two years and four months before being eligible for parole.
90	You have been in pre-sentence detention for 394 days, not including today. I direct that this pre-sentence detention is to be reckoned as already served and I shall note that on the court record.
91	A number of charges attract driving licence cancellation orders, which in each case are mandatory. In respect of Charge 1 your licence is cancelled and you are disqualified from obtaining any further licence or permit for three years. In respect of Charges 2 and 3, the order is for two years, and for summary Charge 7 it is 12 months. All those cancellation or disqualification periods will run concurrently.
92	The prosecution seeks orders for the forfeiture of items listed on a schedule and for the disposal of a machete. Subject to any objection, I will make those orders.
93	Is there any objection to those - - -  
94	MR COOKSON:  No, Your Honour.  
95	HER HONOUR:  Thank you, Mr Cookson.
96	If you had pleaded not guilty to these charges, I would have sentenced you to four years and six months' imprisonment with a non-parole period of three years.
97	Are there any other matters, first of all Mr Cookson, that I have neglected.
98	MR COOKSON:  Not on my reckoning, Your Honour.
99	HER HONOUR:  Thank you.  Mr Fryer.
100	MR FRYER:  No, nothing further from the prosecution, thank you, Your Honour.
101	HER HONOUR:  Thank you.  Now there's a link at the moment.  Mr Cookson, do you want an opportunity to speak to Mr Te Kaponga on the link.
102	MR COOKSON:  That would be useful, Your Honour, thank you.
103	HER HONOUR:  All right, thank you.  So, Mr Fryer, you may be excused.
104	MR FRYER:  Thank you, Your Honour.  
105	HER HONOUR:  And we'll close that link with you, and I will leave the bench now.
106	MR COOKSON:  As Your Honour pleases.
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