Director of Public Prosecutions v Abel

[2024] VCC 236

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

KOORI COURT DIVISION

CR 23-01093, CR-23-01404, CR-23-01406

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN TYRONE ABEL

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2023
DATE OF SENTENCE:	4 March 2024
CASE MAY BE CITED AS:	DPP v Abel
MEDIUM NEUTRAL CITATION:	[2024] VCC 236

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:             Koori Court Jurisdiction – Home invasion – Causing injury internationally – Theft – Aggravated burglary – Aggravated carjacking – Handling stolen goods – Plea of Guilty – Two indictments – Application of Bugmy principles – Application of Verdins principles – Application of Muldrock principles – Intellectual disability – Profound disadvantage – Aboriginal Community Justice Report

Legislation Cited:     Sentencing Act 1991

Cases Cited:R v Hogarth [2012] VSCA 302; R v Verdins (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120

Sentence:Total effective sentence of 12 months’ imprisonment in combination with a 2-and-a-half-year Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Ms S. Buckley	Victoria Legal Aid

HIS HONOUR:

1Ben Abel, you have pleaded guilty in the Koori Court at Latrobe Valley Court to two indictments which reflect separate episodes of very serious offending in Geelong and Sale.  Indictment N11561358 deals with offending at Sale in July 2022.  You pleaded guilty to a charge of home invasion which carries a maximum penalty of 25 years' imprisonment, causing injury intentionally, a maximum of 10 years' imprisonment, theft has a maximum of 10 years' imprisonment.  You also pleaded guilty to a relevant summary offence of committing an indictable offence whilst on bail which has a maximum of three months' imprisonment.

Circumstances of Offending

2The facts of this matter are set out in the amended summary of prosecution opening for plea dated 19 October 2023 which was exhibited on the plea and forms part of these reasons for sentence.  In very brief terms, you were 19 at the time.  You committed the offence in company with your uncle, Connelly Pike who is 27, who as detailed in the defence outline and in the ACJR and other materials, had a close familial relationship with you when you were growing up and the other co-offender was Mr Glass, a 19-year-old, who is also a cousin of yours. 

3I make particular note of that as I will come to further remarks in relation to the family dynamics and your cognitive functioning and, to put it in basic terms, how you are someone who is easily led.  The three of you attended the home of Daniel Burdon, a 60-year-old male who is the victim in the matter.  He lived in York Street, Sale with his flatmate.  Mr Pike drove you and Mr Glass there ostensibly to obtain drugs.  You made a demand for yarndi of Mr Burdon once you had entered the property and confronted Mr Burdon.  You were in possession of a switchblade which was in your pocket and fortunately for you, you kept it in your pocket. 

4The demand for the yarndi was made.  Mr Burdon said, 'Fuck off, it's 5 in the morning' and Mr Pike who was with you produced a tyre iron.  I was told you were not aware that the tyre iron was in his possession and Mr Pike struck Mr Burdon over the head with the tyre iron and he fell to the floor.  That is in relation to the causing injury intentionally.  You have been charged on a complicity basis with that and Mr Burdon received a cut to the head in relation to that and then there was considerable bleeding.

5As I have noted, there was no attempt by you to produce the switch blade.  Items were stolen - biscuit tin containing keys, some coins and a gift pen set.  As the three of you left the premises, one of your party said 'That's because you ripped off our mate' to your victim.  You were on bail at the time of the commission of that offence.  I received a victim impact statement from Danielle Burton on behalf of Daniel Burdon and I have taken the significant impacts to Mr Burdon into account.

6You also pleaded to Indictment No. C2316151 which contains two charges of aggravated burglary, a charge of aggravated carjacking, theft and handling stolen goods, all of which were committed at Geelong in April last year.  The aggravated burglary and aggravated carjacking charges carry a maximum penalty of 25 years' imprisonment.  Handling stolen goods has a maximum of 15 years' imprisonment.  You also pleaded guilty to two relevant summary offences of committing an indictable offence whilst on bail.

7The facts of this mater are also set out in a summary of prosecution opening which form part of Exhibit A on the plea and that prosecution opening was dated 17 October 2023 and forms part of these reasons for sentence.  I will not go into the same detail again that was contained in that opening given that it forms part of these reasons, but in brief terms you committed the offences on that indictment in company with another cousin, who has been dealt with in the Children's Court in respect of this offending and received a youth supervision order of 12 months. 

8Charge 1 of aggravated burglary was at the Watsons' residence in Whittington.  You removed a flyscreen to gain access to the building, leaving fingerprints behind which led to your detection.  There was a wallet located on a table belonging to Mr Watson which you stole.  It contained some $270 cash and when the Watsons woke up, they discovered that someone had broken into their home in that manner and effected those thefts.  It was quite a frightening experience, no doubt.

9On 21 April 2023, so the same day, a little bit later in the day, you attended an address in Newcomb where Ms Blicavs was working on her computer.  She heard someone remove her car keys from a kitchen bench and then leave.  She walked out and saw your cousin hiding in the bushes and then you and your cousin walked to the end of the driveway.  Ms Blicavs followed you and asked for the keys back.  You were at her vehicle and Ms Blicavs said that if you did not give her the keys back, she would call the police.  You produced a black-handled steak knife and said 'Get the fuck away from me, slut'.  Ms Blicavs was fearful and to avoid a confrontation she returned to her house and then you and your cousin drove away in the vehicle.  It was later police action, that was somewhat prolonged, intercepting you.

10You are also charged with handling stolen goods in relation to an ANZ debit card owned by Ms Hicks which had been left in her vehicle, so someone had broken into the vehicle and stolen that card and it ended up in your possession, sometime between 20 and 21 April 2023.  I have also received a victim impact statement from Ms Hicks and I have taken those impacts into account. 

Personal Circumstances

11You have no prior convictions.  I understand of course there are some pending matters that I was told about at the plea and told about again today in the Magistrates' Court as to what the likely outcome will be in respect of those.  But it is significant that you have no prior convictions. 

12You come to the court as a 20-year-old man on very serious offending, but without prior convictions.  As I have noted, you were 19 when you offended in Sale and you had just turned 20 when you committed the offences in Geelong in April last year.  The difficulties you have had to surmount throughout your life are summed up in more general terms in the opening paragraphs of the Aboriginal Community Justice report which was filed in respect of your matter.  It is a very comprehensive report and it goes into a lot of detail and personal detail which I will not reproduce herein, but in more general terms at the outset some of your life circumstances are summed up in this manner.

13From paragraphs 1 - 2:

'Ben Abel is a 20-year-old Gunai-kurnai from Gippsland who spent most of his childhood in the kinship care of his grandmother, Beryl Everett with whom he had a strong attachment… 

Ben has an extensive family history of adversity associated with socio-economic disadvantage, exposure to violence, prevalent drug-use, frequent contact with the criminal justice system and stigmatisation of his race…  Following his abrupt removal from his primary caregiver, Ben confronted challenges associated with unsafe and unsupported living environments, inconsistent housing, lack of required structure and supports needed to help manage his disabilities and a high level of mistrust in the criminal justice system. 

These adversities underscore not only the complexities of Ben's personal journey but also shed light on broader systemic issues that perpetuate cycles of disadvantage within marginalised communities'. 

14The report goes on to refer to your moderate intellectual disability coupled with neurological disorders and the challenges this has posed in relation to communication, memory retention, regulating emotions and comprehending potential hazards linked to actions and behaviours and it is particularly noted the historical records revealing from the age of 11 an assessment of an IQ of 41 at that age.  Those introductory paragraphs go on to note that the impact on complex thinking capacity and capacity for assessing risk, makes you particularly susceptible to exploitation by others.  It also noted your empathy and compassion.

15As I have said, the general observations in the opening of that report are supported by more detailed analysis throughout the report.  In your counsel's excellent written submissions, there is also a useful general summary of the personal circumstances and features that you have had to grapple with in your life, particularly in formative years. 

16So it is Exhibit 1, reading from paragraphs 1 - 2:

'Mr Ben Tyrone Abel is a 20-year-old Aboriginal man with a significant, global intellectual disability which has marred almost all aspects of his life.  He has an appalling childhood history of abandonment, environmental neglect and exposure to violence and substance abuse.  His own life, thus far, has been punctuated by itinerancy and substance abuse. 

He is a young offender with no prior criminal history who presents as exceptionally vulnerable in a custodial setting. 

17I accept those matters as I too accept the matters from the Aboriginal Community Justice report which was Exhibit C before me and in respect of both those documents I accept the summaries of your life's circumstances.  Both sets of the offending before me occurred when you were in company with family members, an uncle and a cousin and an on the last occasion a cousin.  In the context of your life circumstances and cognitive profile, I find it remarkable that you have no prior matters.  It is of great significance given those circumstances.  I put this down to the guidance and influence your grandmother, Beryl, has been able to show you in your development and to your fundamental decent and empathetic nature as referred to at paragraph 19 of the ACJR.

18That compassion and empathy has been described and I also saw it on display during the sentencing conversation at Latrobe Valley County Koori Court.  It was absent however during these episodes of serious offending.  Aggravated carjacking is a Category 1 offence.[1]  What flows from that is that unless special reasons exist, a head sentence and non-parole or straight sentence must be imposed, but with a three-year non-parole period as a minimum.  Home invasion is a Category 2 offence and similarly it has what, for the sake of brevity, I will refer to as mandatory gaol. 

[1] Sentencing Act 1991 (Vic)

Seriousness of Offending and ss 5(2H) and 10AE of the Sentencing Act

19These facts reflect how serious Parliament and the community view your offending.  Most offenders who come before the court for this type of offending, serve long periods of imprisonment.  Few people come before the court for the first time for such disturbing offending.  I was greatly assisted by the prosecution’s outline of prosecution submissions on sentence, for its analysis of some of the sentencing considerations.  I accept the general principle in relation to home invasions and principles that can be distilled from cases before but at least since, R v Hogarth which is referred to in Exhibit B, the prosecution submissions on sentence.[2]

[2]R v Hogarth [2012] VSCA 302

20In particular, in relation to the Sale incident, home invasion, causing injury, I have taken into account in assessing the objective gravity that it was confrontational, the victim was known to you and your co-offenders and there was an aspect of retribution.  You were in possession of a weapon, although it is in your favour that it is not alleged that it was produced or used during the offending.  Your victim suffered injury.  The offending involved force and threats.  It was early in the morning and of course everyone is entitled to feel safe in their home and your victim in the matter was deprived of that.  The offending was in company and you were on bail at time.

21In relation to the Geelong incident, the aggravated burglaries involved entering victim's homes while they were in the building, at home.  Again, it was in company.  The offending was in the nature of a spree, occurring over several hours and committed against multiple victims.  The victims of the first aggravated burglary were elderly and vulnerable.  The aggravated carjacking involved you producing and threatening the victim with a knife.  You then fled from police.  Again, you were on bail at the time of the offending.

22Whilst I am discussing the prosecution submissions on sentence, I will refer to some of the helpful concessions made by the prosecution.  There was some conjecture as to whether on the basis of the clinical neuropsychological report of Mr Crowe that limb 1 of R v Verdins (“Verdins”) is engaged and I will not repeat the extracts that are referred to within.[3]  I do find that to some degree there is a nexus between your cognitive profile, your cognitive functioning and the commission of the offences.  It is complex and multi-layered and entwined no doubt with other aspects such as what might be referred to as Bugmy v R (“Bugmy”) factors, [4] but to be a bit more particular, the family dynamics and your circumstances from infancy within those family dynamics coupled with the cognitive functioning and of course a vulnerability to substance use due to what I will loosely refer to as Bugmy factors.

[3]R v Verdins (“Verdins”) (2007) 16 VR 269.

[4]Bugmy v R (“Bugmy”) (2013) 249 CLR 571.

23Being one who is easily led in that environment, particularly with the family dynamic, in my view provides a nexus.  Perhaps the better way to approach it is the way I have approached it, but globally your moral culpability for the offending is reduced because of the connection between cognitive functioning, profound disadvantage and exposure to trauma and illicit substance use from a tender age and the relationship that is at play between those factors which is impossible to unscramble, they are intertwined, and it is not possible to distil what contribution cognitive functioning has made to the outcome. 

24I am satisfied that when I consider the Muldrock v The Queen principles,[5] the Verdins requirements insofar as moral culpability is concerned and the principle of Bugmy, in my view given the nature of the offending in this matter and those dynamics which I have referred to, Bugmy factors are present in a specific sense.  The global effect of those principles operating in your case, Mr Abel, provide significant mitigation when it comes to assessing moral culpability.  These factors also impact upon the extent to which general deterrence will be reflected in the sentence.  General deterrence is a very important factor when it comes to such serious offending and it applies in your case and it is reflected in the sentences I will impose but it is moderated.

[5]Muldrock v The Queen (“Muldrock”) (2011) 244 CLR 120.

25The prosecution submissions concede that there is a hardship in custody you will experience due to your cognitive profile that others without that profile will not experience.  Further, the prosecution in their analysis of s10A and special reasons and also the s52H exception, so we are dealing with the home invasion and the aggravated carjacking.[6]  The prosecution makes a concession that your low IQ on the balance of probability establishes that you have an impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. 

[6]Sentencing Act 1991

26I accept that concession and observe that it is well made and appropriate and I also am satisfied as to that and that being the case special reasons are therefore made out under s10A(2)(c)(ii) and also under paragraph (c), I think it is in 5(2H) exception.  Given my acceptance of those matters, I do not need to make a finding in relation to the 10AE and 5(2H)(e), exception of substantial and compelling circumstances that are exceptional and rare and justified in not imposing the mandatory sentence.

Matters in Mitigation

27Given my acceptance of the exception in 10A and 5(2H)(c), I simply do not need to perform that assessment under (e).  I have referred already to Exhibit 1 being the written submissions of Ms Buckley that were very thorough and excellent and of much use.  I will not reproduce herein all of the personal detail which most part of which comes under the heading 'Childhood and family circumstances' at paragraphs 9 to 25.  I accept the matters summarised therein.  I also accept the detailed matters summarised under the heading 'Personal history', paragraphs 1 to 38 of the Aboriginal Community Justice report. 

28There is a lot of material, a lot of detail, in those paragraphs, far more than I can do justice to in these remarks and I will not reproduce the detail herein.  In particular, there are details relating to your development and early life experiences that are significant, very significant, but no purpose is served by relating those facts or incidents in open court.  I have already touched on the family dynamics and the emphasis that I have placed upon those.  The Aboriginal Community Justice report is an extremely thorough, detailed and informative document about you and your circumstances.  I have found it to be a powerful tool in understanding you and all of your circumstances. 

29I was provided with a number of historic records that have been referred to and provided as providing a longitudinal view of your intellectual functioning and I have already mentioned the Crow report, the findings of which – the opinion contained therein, I have had no difficulty accepting.  Clearly, your cognitive profile is of significance in the sentencing process.  I have already touched on some of these matter in mitigation, but again set out in careful detail and analysis in Ms Buckley's submissions there is reference to Muldrock and Verdins' principles. 

30In particular, I am of the view that the Muldrock principle as referred to at paragraph 41 of Ms Buckley's written submissions applies with full effect in your case. I have also referred to, without referencing it, Professor Crow's opinion that you as an intellectually disabled man would be fairly easily led. As I have said, I accept the application of the Bugmy principle with full effect and in the manner in which I have described, particularly in its relationship with Verdins and Muldrock principles, I find that there is a specific link with the offending in this case.

31You pleaded guilty to both sets of offending at an early stage.  You are still a young person, a young person who comes before this court without prior convictions and rehabilitation.  Your rehabilitation is of vital importance.  I find that the interplay of the Bugmy factors, Verdins and Muldrock principles have a significant effect upon my assessment of your moral culpability.  You participated in the sentencing conversation in the Latrobe Valley Court with Aunty Di Hurren, a Gunai/Kurnai Elder, who is present via the link for today's proceeding.  You engaged fully with Aunty Di, despite your personal difficulties, your communication difficulties.

32You were remorseful for your conduct and for where you find yourself, in custody.  Your Nan, Beryl, participated in the conversation on the screen and it was moving to hear and see the interactions between the two of you.  Beryl has looked out for you your whole life and still does.  I was satisfied that you have resolved to take a different path from the one you started wandering down in 2022 and 2023.  To a significant degree, dealing with substance use, vulnerability, staying away from drugs, but also managing familial relations, removing yourself from negative influences, will be key to your rehabilitation. 

33I have received the CCO assessment along with a referral to a Wulgunggo Ngalu which we discussed briefly at the further plea before sentence.  I have received the Justice plan and the disability assessment report.  Part of the Justice plan of course is the statement of intellectual disability, and I will exhibit each of those documents.  The combined effect of those reports which I have received have supported a view that your incarceration should be kept to an absolute minimum given the seriousness of the offending, but in particular noting your personal difficulties and well supported – you also have NDIS support of course, but once you are released from custody, you will be under the direction of Corrections and also court supervised to a degree.

34So you will be supported on a community corrections order, to comply with a Justice plan and to engage with supports including drug and alcohol assessment and treatment and other supports, behaviour offending programs, for example, that will assist you to make good on your resolve not to end up again where you have been languishing for almost 12 months.  As I have noted, notwithstanding the mitigatory effect of the matters I have referred to, general deterrence and denunciation of your conduct remain important considerations in sentencing for these serious offences. 

35I will now sentence you as follows, Mr Abel. 

Sentence

36In relation to Indictment No. N11561358 on the Charge 1 of home invasion, you are sentenced to 9 months' imprisonment. 

37Charge 2, causing injury intentionally, two months' imprisonment. 

38Charge 3, theft, one month. 

39Commit offence on bail, one month.  For clarity, all of those sentences are to be served concurrently.  That makes a total effective sentence of 9 months' imprisonment on that indictment. 

40On Indictment No. C2316151.

41I will start with Charge 4, being the offence of aggravated carjacking, you are sentenced to 9 months' imprisonment in respect of that charge.  Three months will be served cumulatively on the sentences imposed on Indictment N11561358, making a total effective sentence of imprisonment of 12 months.

42Pre-sentence detention is 326 days.  I declare that you have served 326 days of pre-sentence detention for these matters. 

43On the remaining charges on Indictment No.C2316151 and on the relevant summary offences attached to that indictment, I impose a two-and-a-half-year community corrections order.  One of the conditions of that community corrections order will be judicial monitoring and I will set the first judicial monitoring date three months from today at 9.30 am or thereabouts, as in thereabouts three months, it will be 9.30 am, and that is principally so I can see how you are going and perhaps monitor if there is an opportunity to get you to Wulgunggo Ngalu.

44A condition of that order will also be a Justice plan, supervision will be a condition of the order.  Other conditions will involve drug treatment and rehabilitation, mental health treatment and rehabilitation and you will also be expected to undergo any behaviour programs as directed by Corrections. 
Mr Abel, do you consent to being placed on that corrections order?  You can just nod your head if you consent to being on that order.  All right.  It will not take effect today, but within about a month it will. 

45I have also taken into account in imposing that sentence that when these pleas were resolved, the significance of them from a utilitarian point of view was greater due to the pandemic than now is and I have given you a discount in respect of that.

46What is going to happen is that the corrections order will be prepared, I will sign it and it will be sent to you in the prison and Mr Abel and you can put your signature on it.  We will also provide a copy to your legal representatives. 

47Is there any disposal order, Ms Hogan?

48MS HOGAN:  Yes, there was a disposal order.

49HIS HONOUR:  Yes, I will make the disposal order. 

50Pursuant to s6AAA, if it was not for your pleas of guilty, Mr Abel, I would have sentenced you to a total effective sentence of three and a half years with a
non-parole period of three years.

51MS HOGAN:  As the court pleases.

52MS BUCKLEY:  If Your Honour pleases. 

53HIS HONOUR:  All right.  Well, look we will prepare that corrections order and I will sign it in chambers and then it will be provided to your instructors, we will provide the Office of Public Prosecutions with one as well and it will get sent to Mr Abel in custody.  Thank you everyone who has attended here this morning. Yes, we will adjourn the court, thanks.

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