Director of Public Prosecutions v Abouri
[2022] VCC 780
•30 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02701
M11028613
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN ABOURI |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2022 | |
DATE OF SENTENCE: | 30 May 2022 | |
CASE MAY BE CITED AS: | DPP v Abouri | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 780 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing
Catchwords: Sentence – Aggravated home invasion – Mandatory minimum non-parole period of 3 years – Mid-range seriousness – Theft of motor vehicle – Intentionally damage property – Possess drug of dependence – Going equipped to steal – Application of mandatory sentencing regime in context of Sentencing Act provisions and common law principles – Aggravated home invasion committed to obtain drugs and money whilst affected by Xanax – Serious victim impact – Early pleas of guilty – Youthful offender – Minor prior criminal history – Severe depression and anxiety disorder – Verdins principle 5 engaged – COVID-19 mitigating factors present
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Drugs, Poisons and Controlled Substances Act 1981
Cases Cited:DPP v Meyers (2014) 44 VR 486 – DPP v Hudgson [2016] VSCA 254
Sentence: Total effective sentence 3 years’ and 6 months’ imprisonment – Non-parole period 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J van Dyk | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Murphy | Leanne Warren & Associates |
HIS HONOUR:
1Steven Abouri, you have pleaded guilty to one charge of theft of a motor vehicle (Charge 1),[1] one charge of aggravated home invasion (Charge 2),[2] one charge of intentionally damage property (Charge 3)[3] and two charges of possession of a drug of dependence (Charges 4 and 5).[4] You have also consented to have this Court deal with one transferred related summary offence of going equipped to steal (Summary Charge 8),[5] and you have pleaded guilty to that offence.
[1] Contrary to s 74 Crimes Act 1958 (‘CA’).
[2] Contrary to s 77B CA.
[3] Contrary to s 197(1) CA.
[4] Contrary to s 73 Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[5] Contrary to s 91(1) CA.
2The maximum penalty for aggravated home invasion is 25 years’ imprisonment[6] The maximum penalty for theft of a motor vehicle is 10 years’ imprisonment.[7] The maximum penalty for intentionally damage property is 10 years’ imprisonment.[8] The maximum penalty for possession of a drug of dependence (cannabis) is 5 penalty units in the circumstances of this case, since I am satisfied on the balance of probabilities you possessed a quantity of cannabis that is not more than the small quantity for your own use.[9] The maximum penalty for possession of a drug of dependence (amphetamine) is 5 years’ imprisonment.[10] The maximum penalty for going equipped to steal is 2 years’ imprisonment.[11]
[6] Pursuant to s 77B(2) CA.
[7] Pursuant to s 74 CA.
[8] Pursuant to s 197(1) CA.
[9] Pursuant to s 73(1)(a)(i DPCSA. A small quantity is 50 grams, DPCSA Schedule 11, Part 2, Cannabis L, Column 4.
[10] Pursuant to s 73(1)(c) DPCSA.
[11] Pursuant to s 91(2) CA.
3The prosecution filed a summary of prosecution opening dated 21 April 2022,[12] which I have been told by your counsel I can treat as a statement of agreed facts.
[12] Exhibit (‘Ex’) P1.
The Facts
The Offending
4On 1 April 2021 at 10:12pm, you and three unidentified co-offenders arrived at a residential property in Frankston in a stolen 2017 Mercedes Benz station wagon, bearing registration ‘KAH’.
5The vehicle was stolen during an aggravated burglary in Balwyn between 5 and 6 March, 2021. It is not alleged you were involved in the actual theft, rather, your liability arises by reason of the circumstance you were a passenger in the vehicle on 1 April 2021 and, thereby, you were assuming the rights of the owner of the motor vehicle[13] and using it without the consent of the owner.[14]
[13] CA s 73(4).
[14] CA s 73(14)(a).
6A close circuit television camera (‘CCTV’) from neighbouring premises shows you and your co-offenders exit the stolen vehicle at 10:12pm and walk down the victims’ driveway. For the next 28 minutes, you and your co-offenders cannot be seen on CCTV, however police suspect you were watching the victims from outside of the premises. I accept this is probably the case.
7The victims, Paris Phodi and Mason McFarlane, were in bed at Ms Phodi’s home at the Frankston address, when they heard glass smashing. Ms Phodi heard a male voice say, ‘Go go go.’ Mr McFarlane heard people yelling, ‘Give me your keys, give me your fucking car keys.’
8The victims went to the kitchen and a male with dark skin and a balaclava opened the sliding door which separates the kitchen from the front entry of the residence. The male appeared scared to see the victims, so he shut the door again, however he then re-opened it and said, ‘Bitch, get in the room.’ Ms Phodi said, ‘I’ve got nothing, please I live alone.’
9Three more men with dark skin and balaclavas then entered. You were one of the four offenders.
10Ms Phodi noticed one of the men’s skin was not as dark as the other three, and he had the same eyes as her ex-partner. This man, whom Ms Phodi believes might be her ex-partner, is currently under investigation for this offending. Ms Phodi had obtained a family violence intervention order against her ex-partner. The prosecution accept I cannot be satisfied to the required standard you were aware of this at the time.
11Mr McFarlane threw a chair towards the four offenders and then ran into the bedroom where he and Ms Phodi used both their hands to hold the door closed. You and your co-offenders then began kicking at the door.
12The victims phoned 000 and Ms Phodi screamed ‘get out of my house I’m on the phone to the police.’ You and your co-offenders banged and kicked on the door until it came off its hinges. The victims continued to hold the door in place, before hearing you and your co-offenders go outside and smash the bedroom window. The victims then placed a bed mattress up against the window whilst Ms Phodi was speaking to the 000 operator.
13Ms Phodi told the 000 operator, ‘I’m too scared to leave the room … (I saw) four males in balaclavas … they smashed the window and then they told … me to, “get the fuck in the room” … I have not left my bedroom because I’m too scared to go outside. Please, I’m scared … What do I do? Do I hide?’.
14Shortly after the 000 call commenced at approximately 10.40pm, the CCTV camera captures you and your co-offenders entering the stolen Mercedes Benz and fleeing the scene.
15After it became quiet in the victims’ home, and it seemed as though you and your co-offenders had left, Ms Phodi and Mr McFarlane left the bedroom and discovered a hunting knife in a brown leather sheaf on the floor in the hallway. Ms Phodi went into the kitchen to discover that cosmetics which had belonged to her deceased friend had been smashed all over the kitchen floor, as had the window next to the front door. Broken glass was scattered on the floor and there were blood spatters through the house that had not been there before.
16A set of car keys to a Holden Commodore was taken from the residence, however the vehicle was parked in the driveway at the time and you and your co-offenders did not steal it. Ms Phodi’s savings, which she had hidden in her bedroom, were also not taken.
17Crime scene officers attended and photographed and forensically examined the victims’ residence.
The Investigation
18At some stage on the 1 April 2021, you had cut yourself on your left little finger and on your left shin, thereby inadvertently leaving your blood at the crime scene on the metal window frame, some glass fragments on the ground, the kitchen sliding door, and on a wall in the hallway directly outside the victims’ bedroom. This was later confirmed to be most likely your blood.
19At 11.45pm on the 1 April 2021, about one hour after the aggravated home invasion, you attended Dandenong Hospital Emergency Department and were treated for lacerations to your left little finger and shin. Both injuries required stitches. You were discharged the following day at approximately 9:15am. CCTV cameras from the hospital show you arriving at and leaving the hospital. Police investigators obtained your medical records which confirmed the injuries and the treatment you received.
20On the 8 of April 2021 at about 9.00am, the stolen Mercedes Benz was located on Orama Street, Deer Park, displaying stolen registration plates. Forensic testing of the vehicle was undertaken on what appeared to be blood stains located inside the rear driver’s door, rear driver’s seat and rear passenger side seat near the buckle holder. This was also later confirmed to be most likely your blood.
21On the 11 April 2021, you were arrested by police in Cranbourne South for trafficking and possession of cannabis. You told police you had stitches in your hands and you were conveyed to the Narre Warren police station, where you were kept in the cells. The evening custody Sergeant documented you as having pre-existing injuries on your left leg and left little finger, which had required stitches. You told the Sergeant you had injured yourself playing football.
22On the 17 May 2021, police received a finalised comprehensive forensic report regarding the five swabs taken from the aggravated home invasion crime scene and from inside the stolen Mercedes Benz. The five swabs matched your DNA with a likelihood ratio of 100 Billion.
Arrest and Interview
23On Wednesday 19 May 2021 at 7:30am, you were arrested at your residential address of 16 Quattro Ave, Cranbourne East. Police searched you and located on you 21 clear capsules containing a brown powder substance, later confirmed to be amphetamines.
24A search of your residence also produced the following items:
(a) One pair of red and orange Nike shoes, worn by you when you attended Dandenong Hospital.
(b) One red jumper with white stripes, as described by the victims.
(c) One zip bag containing approximately 10g of cannabis, located in a chest of drawers in the bedroom.
(d) One black open faced balaclava, located in a clothes basket in the bedroom, consistent with that described by the victims.
25You were conveyed to the Dandenong police station and interviewed. You told police the following:
(a) You owned the knife that police said was located at the scene.
(b) You believed you had been brought in by police because your prints would have been found on the knife, however the knife had not been in your possession, but rather a mate had it.
(c) You described the distinct features of the knife to police, before being shown a picture of it.
(d) The knife had gone missing from your bedroom ‘ages ago.’
(e) You denied involvement in the aggravated home invasion for the majority of the interview.
(f) When questioned about the injuries sustained to your left leg and left little finger, you said you had been involved in a fight at a soccer club in Dandenong North and you were held down and sliced open with a knife. You left the fight and went back to a friend’s house for a few more drinks, before attending the Dandenong Hospital to receive treatment.
(g) When informed your blood was located inside the stolen Mercedes Benz used on the night of 1 April 2021, you admitted to being inside the vehicle that evening. You said you were picked up in that vehicle after the fight and that is why your blood was inside.
(h) When informed your blood was located in the victims’ driveway, on their broken window, and inside the victims premises, you said: ‘I can’t really do much, I do nothing, but I was there, my blood gets all over the scene … I tried my best to lie out of it but you already got everything.’
(i) When asked specifically what it was you did at the house, you said: ‘I went to point him out.’ Then you said, ‘I didn’t actually do anything physically but I was there.’
(j) When asked why your blood was on the metal frame and broken glass around it – implying you injured your finger when breaking the window to force entry – you understood the suggestion being made but maintained throughout the interview you were not the person who broke the window, and your finger was already cut.
(k) When asked why your blood was found at head height on the victim’s bedroom door, and the police alleged you were holding your hand there for support because the door was off its hinges, you said ‘no comment’. When it was suggested, you placed your hand there for support on the wall so you could kick the bedroom door in, you replied, ‘That might have happened, like you said it happened, yeah, it happened.’
(l) When asked whether demands for money had been made, you said ‘yeah.’
Victim Impact
26A victim impact statement (‘VIS’) made by Ms Phodi was read out by the prosecutor, in Ms Phodi’s virtual presence, at the sentencing hearing.[15] Your counsel took no exception to its contents.
[15] Ex P3.
27According to the VIS, Ms Phodi’s life has changed drastically because of your offending. She has felt so unsafe, she had to pack up her house and move, nearly ending up homeless in the process. She is constantly looking out her window at night, hoping that nothing bad happens.
28Ms Phodi feels she will never be the same, will never be able to have a peaceful night’s sleep and will never feel safe anywhere she goes. On the night of your offending, she thought she was going to die. She cannot fathom how someone could do to another person what you did to her.
29Ms Phodi now suffers from post-traumatic stress disorder, anxiety, depression, paranoia and night terrors. She feels as if she is not living anymore, instead she is just trying to survive.
30Clearly, your offending has had a devastating and long term impact on Ms Phodi. On behalf of the Victorian Community I denounce your offending conduct towards Ms Phodi and I will take the impact of your crimes on her into account in sentencing you for the relevant offences.
31Mr Doyle and Mr McFarlane did not prepare victim impact statements. Nonetheless, where no victim impact statement has been tendered in respect of a crime, a judge is entitled to take into account the likely consequences for any victim of the offending conduct to which they were subjected.
32Undoubtedly, Ms Doyle would have suffered considerable inconvenience by the theft of his motor vehicle, albeit you were not the actual thief. Mr McFarlane would likely have suffered at least some distress and anxiety as a consequence of your offending against him. I take into account the likely impacts on them of your offending conduct in sentencing you for the relevant offences.
Offence Seriousness
33Aggravated home invasion is a very serious criminal offence[16] carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence.
[16] Cf Hogarth v The Queen (2012) 37 VR 658, 667 [34] (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’) citing DPP v Brown (2004) 10 VR 328, 336 [43] (Vincent JA) (‘Brown’). See also R v Siggins [2002] VSCA 97 [19] (Eames JA, Batt JA and O’Bryan AJA) and DPP v El Hajje [2009] VSCA 160 [35] (Maxwell P, Vincent JA and Coghlan AJA).
34The offence was introduced into Victoria in 2016[17] ‘to capture the most serious instances to home invasions’, as ‘a necessary response to recent incidents of criminal offending’, and in recognition of the need for ‘government to make laws which help improve community safety’.[18]
[17] CA s 77B was inserted by s 3 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 which came into operation on 07/12/2016 (SG (No. 375) 6/12/2016 p 1).
[18] Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3330 (Martin Pakula MP, Attorney-General).
35The government was ‘very concerned about recent serious criminal offending, which involved breaking into people’s homes’.[19] In the Second Reading Speech, associated with the enactment of the section, the Attorney-General said:
The government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the government, and Parliament, denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated.[20]
[19] Ibid 3329.
[20] Ibid.
36Later the Attorney- General said:
It is unacceptable for someone to feel unsafe in their own home. It would be even worse to actually be confronted by strangers in what should be a person’s sanctuary. …the effect on victims is … rightly condemned by the introduction of this offence. … The community rightly expects that such acts with their traumatic consequences for victims should be punished in a manner consistent with the harm caused.[21]
[21] Ibid 3330.
37Prior to the enactment of the offence of aggravated home invasion, the Victorian Court of Appeal in Hogarth v The Queen,[22] a case involving a ‘confrontational’ aggravated burglary,[23] said: ‘Home invasion is a particularly nasty form of criminal conduct’[24] and a particularly ‘egregious form of aggravated burglary’. This is particularly so, it was said, where, as here, the offence is premeditated and committed at night.[25]
[22] (2012) 37 VR 658.
[23] Under CA s 77(1).
[24] Hogarth 659 [1]. See also Bonacci v The Queen (2012) 224 A Crim R 194, 195 [1] (Neave, Mandie and Harper JJA).
[25] Hogarth 660 [6].
38Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case.
39At the plea hearing, the prosecutor initially submitted the offending conduct comprising Charge 2 on the indictment is a higher-end example of this offence. However, she subsequently agreed with my assessment this is a mid-range example of the offence. You counsel accepted your offending ‘is unquestionably serious’.
40In DPP v Meyers (‘Meyers’)[26] the Victorian Court of Appeal outlined the ordinarily relevant considerations that apply in assessing the relative seriousness of an example of the related offence of aggravated burglary. Those matters include the offender’s intent at the point of entry, the mode of entry, whether the offender was carrying a weapon, whether the offender was alone or in company, the time of day at which the burglary took place, what the offender knew or believed about who would be inside, and whether the offender was someone of whom the victim was particularly frightened beforehand.[27]
[26] (2014) 44 VR 486.
[27] Meyers 498 [47]–[49] (Maxwell P, Redlich and Osborne JJA).
41I accept there was a level of premeditation involved in the commission of this offence. You were personally armed with a knife, you disguised yourself by wearing a balaclava and entry to the home was forceful and involved smashing a window. The offence was committed at night. Moreover, these particular premises were targeted. You told Ms Alison Mynard, a clinical psychologist engaged by your legal representatives, you committed the offence to obtain money and drugs because you were told there were drugs in the house.[28] You knew the residents were present in the house where they were entitled to feel safe.
[28] Ex D2 [35].
42Significantly, there was a period of some 28 minutes while you were at the premises before the forced entry occurred. During this time you could have reflected on what you were intending to do and abandoned your plan.
43In mitigation, I accept there are a number of circumstances that take your offence outside the range of examples of aggravated home invasion in its more serious forms. You did not inflict any injuries on the victims and there was a lack of sophistication in the course of the offending.
44Importantly, I must be careful in fixing the sentence for aggravated home invasion to ensure you are not punished for the conduct that occurred after entry was gained into the victims’ premises.[29] As the Court observed in Meyers:
Apart from supporting an inference as to what it was that [you] intended to do, the seriousness of what took place after entry cannot affect the sentence on the aggravated burglary charge.[30]
You are not to be punished for these uncharged acts and I cannot treat them as aggravating features of the offence charged.[31]
[29] Meyers 503 [70]–[71]. See also Pearce v The Queen (1998) 194 CLR 610; R v Lacey [2006] VSCA 4 [24] (Vincent JA, Callaway and Chernov JJA agreeing).
[30] Meyers 503 [71].
[31] Salapura v The Queen [2018] VSCA 255 [58]; R v De Simoni (1981) 147 CLR 383, 389; R v Newman and Turnbull [1997] 1 VR 146, 150; Bava v The Queen [2021] VSCA 34. Cf Elsayed v The Queen [2019] VSCA 113 [63]; R v Nobile [2006] VSCA 211 [8]; R v Henderson-Drife [2007] VSCA 211.
45Finally, I observe theft of a motor vehicle, intentionally damage property and possession of a drug of dependence are also serious enough criminal offences.
46Overall, I assess your moral culpability as being relatively high.
Applicability of Mandatory Non-parole Period Provisions
47Of particular significance in sentencing you for the offence of aggravated home invasion is the mandatory sentencing provisions which apply to that offence. Pursuant to s 10AC of the Sentencing Act 1991 (‘the Act’), in sentencing you for that offence I must impose a term of imprisonment and fix under s 11 of the Act a non-parole period of not less than 3 years unless the I find under s 10A of the Act that a special reason exists.
48Moreover, s 11(3) of the Act requires that a non-parole period must be at least six months less than the term of the sentence. In other words, the minimum total effective sentence I can impose on you in this case is imprisonment for three years and six months, unless special reason exist.
49At the plea hearing, neither your counsel nor the prosecutor submitted a special reason exists in your case, and I am satisfied none is established pursuant to one of the exceptions outlined in s 10A of the Act.
DPP v Hudgson
50In DPP v Hudgson[32] the Victorian Court of Appeal heard an appeal against sentence involving a charge of intentionally causing serious injury in circumstances of gross violence. The Court observed that ‘an unusual feature’ of this offence is that pursuant to s 10(1) of the Act, a person convicted of that offence must, in the absence of ‘a special reason’, receive a non-parole period of not less than four years. The Court commented that ‘it follows that the head sentence for an offence under s 15A [of the Crimes Act 1958] may well have to be substantially greater than the four year non-parole period specified’.[33]
[32] [2016] VSCA 254 (Weinberg, Whelan and Priest JJA) (‘Hudgson’).
[33] Hudgson [5].
51The Court continued:
Moreover, the entire sentencing process becomes problematic, and unorthodox, because a sentencing judge may have to start with the non-parole period, and work upwards from there, rather than imposing an appropriate sentence and then deciding what proportion of that sentence should be served before being eligible for parole.[34]
[34] Hudgson [6].
52In my respectful opinion, this is only the start of the problems created for a sentencing judge by the enactment of this and similar legislative provisions. The sentencing regime created under the Act is intended to operate harmoniously with common law sentencing principles. This is made clear by many of the purposes of the legislation expressed in s 3 of the Act.
53Moreover, as the Court in Hudgson accepted when referring to the respondent’s submission:
… the Second Reading Speech, associated with the enactment of the section, made it clear that the ‘statutory sentence’, as it was described, would operate ‘together with the usual principles of sentencing as set out in the Sentencing Act and at common law’.[35]
[35] Hudgson [69]. See Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5552 (Robert Clark, Attorney-General).
54Those ‘usual principles of sentencing’ include proportionality,[36] parsimony,[37] totality,[38] consistency in sentencing,[39] the principles engaged when sentencing a ‘youthful offender’ who has only two prior findings of guilt and no prior convictions,[40] and the principles relating to sentencing an offender who has pleaded guilty at the earliest reasonable opportunity and under COVID conditions, is remorseful and has good prospects for rehabilitation, to name but some of the principles engaged in sentencing you for the present offences.
[36] Sentencing Act 1991 (‘SA’) ss 5(1)(a), 5(2)(c). See eg Veen v The Queen (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465.
[37] SA s 5(3). See eg Milne (1982) 4 Cr App R (S) 397; Taylor (1984) 6 Cr App R (S) 394; Fyfe (1985) 40 SASR 120; Skipper (1992) 64 A Crim R 260 (CCA WA); Crawley (1981) 5 A Crim R 451 (FCA) at 456.
[38] See generally Mill v The Queen (1988) 166 CLR 59.
[39] SA s 5(2)(b). See eg R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520.
[40] SA s 3(1). See eg R v Mills [1998] 4 VR 235; DPP v Lovett [2008] VSCA 262; CNK v The Queen (2011) 32 VR 641; Azzopardi v The Queen (2011) 35 VR 43; DPP v Ghazi (2015) 45 VR 852.
55However, I am forced into a position whereby I must sentence you to a total effective sentence of not less than three years’ and six months’ imprisonment.
Personal Circumstances
56You were born in November 1999 in Khartoum after your parents had fled South Sudan. You are currently 22 years of age and were 21 at the time of committing the present offences.
57In Khartoum, your mother worked as a nurse and your father as a driver. You were told by your mother she was the subject of discrimination at her workplace because she was a Christian.
58You left Khartoum for Egypt when you were three years of age along with your aunt and cousins. You had one older brother who passed away when you were two or three years old. You became an older brother whilst living in Egypt when you were aged four.
59You came to Australia with your immediate family at the age of six years after being sponsored by your extended family. Your family lived in Noble Park with relatives before moving to Springvale. Your aunt and cousins moved to Canada, which was a significant loss for you.
60Upon relocating to Australia, you attended school with your parents to learn English. Your father worked in a factory before starting his own lawn mowing business. Your mother raised you and your siblings at home before working in day care. She is now employed in aged care and nursing.
61You have four younger brothers and one younger sister. You have several older cousins whom you consider are effectively siblings. You have been told you also have one half-sister whom you have not met.
62Whilst in Egypt you did not attend school. You attended Noble Park Language School and Springvale West Primary School from Prep to Year 3. You then attended Wallarano Primary School in Noble Park from Years 4 to 6 and then Keysborough Secondary School, where you completed Year 12.
63You were an average student who lost interest in school owing largely to the negative influence of your older cousins, who were engaged in stealing and who truanted from school.
64After completing high school, you enrolled in a Diploma of Sport however, you deferred your studies after four months so you could focus on football. You worked casually at Woolworths as a shelf filler during your schooling.
65From 12 years of age, you played football in your local team with the Southern Football League. You then went on to play representative AFL in Senior Division 1 for the St Kilda City team. You trained during the week and played on weekends during this time. Playing football and exercising had a positive effect on you, with the sport providing you with a respite from your problems.
66At 16 years of age, you lost interest in football when you began smoking cannabis and binge drinking. You were able to maintain a connection with football during this time but your interest and commitment waned.
67In your senior year at St Kilda Football Club, you were given the opportunity to play football in Queensland and be paid for doing so. You resigned from your job at Woolworths, and with the assistance of your long-time coach, you and some of your peers moved to Queensland in early 2020, where you were paid $600 per game.
68You told Ms Mynard, Queensland represented a ‘fresh start’ and prior to the move you felt you were going down a negative pathway. You were significantly affected when your expectations were not realised and you returned to Victoria. You played football for a short period of time upon your return, before ceasing playing altogether.
69You have little employment history aside from your employment at Woolworths. Your father attempted to have you assist with the family lawn mowing business, however, this was not successful.
70You have been on remand in COVID conditions for just over 12 months. You told Ms Mynard you have been keeping yourself busy by working cleaning cells and in the meals area. For the first time, because of COVID restrictions, you had a contact visit with your mother a week before your interview with Ms Mynard in early April this year. You reported your mother was very happy to see you.
Substance Abuse History
71You were assessed on 8 April 2022 by Alison Mynard, a clinical psychologist engaged by your legal representatives. Ms Mynard prepared a ‘Psychological Assessment Report’, dated 27 April 2022, which was tendered at the plea by your counsel.[41]
[41] Ex D2.
72You told Ms Mynard you began drinking alcohol and smoking cigarettes when you were aged 14 years. You began smoking cannabis when aged 16. You would wake during the night to smoke cannabis and would also have a ‘bong’ at school, during recess and lunch, as well as smoking joints. You estimated consuming between 3 to 4 grams per day. As you grew older, you increased your cannabis use, however, there were periods where you abstained or reduced your consumption because you were focusing on playing football.
73You denied using methamphetamines or heroin to Ms Mynard. You disclosed using cocaine daily for several years, from 2019 to 2021. You also reported taking 4 to 5 Xanax tablets each day, for between 18 months to 2 years. You told Ms Mynard when you took Xanax you had difficulty remembering what you were doing and would often black out, ending up at a police station not knowing why you were there. You told Ms Mynard nothing bad happened and you never thought it was a big deal that you had been consuming so much Xanax.
Mental Health
74You reported to Ms Mynard you have had a low mood for many years, and after a friend of yours committed suicide in 2019, you became even more depressed. Your friend lived only fifteen minutes away from you. You and he had a falling out prior to his suicide, and you believe this falling out may have contributed to his death.
75After your friend’s death, you suffered what Ms Mynard describes as ‘complex grief’ and you started taking more Xanax tablets than was usual and abusing alcohol. While struggling with your grief, you became quite angry and withdrawn.
76In 2021, one of your cousins was stabbed on St Kilda beach and he died. You explained, while you were growing up, your cousin was always there for you and you knew this cousin very well and he was an important part of your family. You were deeply shocked by his horrific death and you missed going to his funeral.
77Another significant trauma for you was the failure of your Queensland football career. You told Ms Mynard you had placed significant hope for your future in this football pathway, and when your Queensland move did not work out as you had hoped for, you came back to Melbourne, disillusioned, and you then fell back into your negative peer group, increasing your substance abuse and suffering feelings of being lost and directionless.
78Since this time, your depressive symptoms have increased, and you reported feeling more anxious. You have continued to use Xanax very problematically and were also using cocaine regularly.
79You have never seen a psychologist in the past or engaged in counselling. You have never been prescribed any psychotropic medication.
80At the time of Ms Mynard’s assessment, you felt very low in your mood and you had lost interest in normal activities. You reported you feel like a failure and believe you have let your mother down. You feel ashamed you have embarrassed your mother in front of your extended family. You have difficulty sleeping and often remain awake until 4am.
81Your appetite has been better whilst you have been in custody, compared with when you were in the community, when you do not eat well.
82You reported to Ms Mynard you feel hopeless about the future and you keep thinking about what you will do when you are released from custody. You would like to return living with your parents.
83Ms Mynard assessed your mental health by applying the Beck Depression Inventory II (‘BDI-II’) and the Beck Anxiety Inventory (‘BAI’). On the BDI-II you scored in ranges consistent with severe depression. On the BAI you demonstrated levels of severe anxiety. Undoubtedly, some of your symptomatology is referable to your current legal predicament.
84Ms Mynard opined, you deteriorated in your mood quite severely after the suicide death of your friend, and this traumatic loss was compounded by travelling to Queensland and then losing the hope of a successful career in football. Ms Mynard concluded you reach the DSM-V[42] diagnostic criteria for Adjustment Disorder (mixed anxiety and depression). She also diagnosed you as suffering from Anxiolytic Abuse Disorder (Xanax) and Stimulant Use Disorder (cocaine).
[42] American Psychiatric Association (2013). Diagnostic Statistical Manual of Mental Disorders (5th ed.) Arlington, VA: Author.
85Ms Mynard opined, you mental health conditions significantly impaired your functioning and you were finding it difficult to cope each day without some form of self-medication.
86Ms Mynard observed your time in custody has ‘somewhat stabilised [you] in terms of interrupting [your] substance use issues’. However, she opined that when she assessed you, you continued to be very depressed and your ‘mood has continued to deteriorate whilst in custody’. Moreover, she is of the opinion your depression ‘may continue to deteriorate the longer [you remain] in custody’.
87Since Ms Mynard has only assessed you once and does not appear to have consulted any mental health records relating to your time I custody, I am at a loss to understand the basis of this opinion.
88I do accept Ms Mynard’s opinion your depression and anxiety is a burden to you and means your time in custody will be somewhat more difficult for you than a prisoner without these conditions.
89Accordingly, while I accept Verdins principle 5 is engaged to some extent in your case, I am not satisfied Verdins principle 6 is engaged here.[43]
[43] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
90I am also not satisfied Verdins principles 1 to 4[44] are engaged in your case. On your own admissions to Ms Mynard, you committed the aggravated home invasion while you were under the influence of Xanax and your motive was to obtain money and drugs. While your underlying personality disorder no doubt contributed to you abusing Xanax, which no doubt adversely affected your judgement to some extent, you knew what you were doing was wrong. In my opinion, your moral culpability is not reduced, and there is no valid reason to moderate the weight I give to general or specific deterrence in sentencing you for these offences.
[44] Ibid.
Prior Criminal History
91You have a very limited prior criminal history. On 6 February 2021, in the Bail and Remand Court, you were without conviction fined an aggregate of $500 on one charge of possessing a prohibited weapon in the immediate vicinity of licensed premises and one charge of committing an indictable offence whilst on bail.
92While not entirely irrelevant, particularly the weapon charge, I will not give great weight to these prior matters in my sentencing synthesis.
Mitigating Circumstances
93You pleaded guilty to the present offences in the Magistrates’ Court on 20 December 2021 and the matter proceeded by way of a straight hand-up brief at that hearing. I accept your pleas were entered at the earliest reasonable opportunity.
94Your pleas have utilitarian benefit, particularly in the COVID-19 environment.[45] They also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice. Accordingly, you will receive a significant discount from the sentence I would otherwise have imposed in respect of these offences, within the limits imposed on me by the mandatory sentencing regime applicable to the most serious offence.
[45] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [34]–[39] (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[36] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
95I accept you expressed regret and remorse for your actions to Ms Mynard and you accepted your actions would have caused the victims not to feel safe in their own home. You eventually made admissions in your record of interview, albeit only after a considerable line of questioning in which you repeatedly lied. Nonetheless, I sentence you on the basis you are genuinely remorseful for your offending conduct.
96Your young age is a significant sentencing consideration. You were a youthful offender at the time of committing these offences, being aged 21 years. You are now 22 years of age and still relatively youthful. This is the first time you have been in custody. I must give primacy to your rehabilitation over general deterrence.[46] Accepting your potential to be redeemed and rehabilitated, in the long run, individualised treatment focussing on your rehabilitation will best serve your interests and the interests of the community. In this regard, it is noteworthy you have been abstinent from drugs whilst in custody.
[46] R v Mills [1998] 4 VR 235, 241 (Batt JA, Phillips CJ and Charles JA agreeing); Azzopardi vThe Queen (2011) 35 VR 43, 53–56 [34]–[40] (Redlich JA, Coghlan and Macauley AJJA agreeing).
97I accept you have good prospects of rehabilitation if you remain drug free following your release from custody. You must also avoid negative peer group pressures if you are to not reoffend. In this regard, I note you have the protective factor of strong family support and a relatively minor prior criminal history. In these circumstances, I consider I need give only moderate weight to specific deterrence.
98The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[47]
(b) As I previously observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[48]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[49]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.
[47] The Queen v Madex [2020] VSC 145 [52].
[48] DPP v Bourke [2020] VSC 130 [32].
[49] Brown v The Queen [2020] VSCA 60 [48].
Application of Sentencing Principles
99I have had regard to current sentencing practice in relation to the charges before me as informed by the decisions of the High Court of Australia in R v Kilic[50] and DPP (Vic) v Dalgliesh (a Pseudonym)[51] and the Victorian Court of Appeal decision in DPP v Zhuang.[52] Neither your counsel nor the prosecutor referred me to any comparable cases.
[50] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[51] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[52] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
100It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
101The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection from the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
102I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
103Denunciation, general deterrence and just punishment are significant sentencing considerations for the offence of aggravated home invasion. The Court and the community consider offending of this kind is so serious it warrants the imposition of mandatory imprisonment for a substantial period, even in the case of youthful offenders with very modest criminal histories.[53]
[53] See eg Jackson v The Queen [2020] VSCA 95 [153] (Croucher AJA).
104Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that specific deterrence and protection of the community are of lesser weight in light of your relatively minor prior criminal history.
105I accept you have good prospects of rehabilitation if on your release from custody you remain drug free and refrain from associating with antisocial peers.
Mr Abouri
On Charge 1, Theft of a motor vehicle, you are convicted and sentenced to 3 days’ imprisonment.
On Charge 2, Aggravated home invasion, you are convicted and sentenced to 3 years’ and 6 months’ imprisonment.
On Charge 3, Criminal damage, you are convicted and sentenced to 7 days’ imprisonment.
On Charge 4, Possession of a drug of dependence (Cannabis), you are convicted and fined $200. That fine is referred to the Director, Fines Victoria for management and collection.
On Charge 5, Possession of a drug of dependence (Amphetamine), you are convicted and sentenced to 1 day’s imprisonment.
On Summary Charge 8, Going equipped to steal, you are convicted and fined $100. That fine is referred to the Director, Fines Victoria for management and collection.
I order the sentences imposed on Charges 1, 3 and 5 be served concurrently with the sentence imposed on Charge 2 and with each other, making a total effective sentence of 3 years’ and 6 months’ imprisonment.
I order you serve a minimum of 3 years’ imprisonment before becoming eligible for parole.
I declare 376 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence, and I direct the fact that declaration was made and its details be noted in the records of the court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of five years’ imprisonment with a minimum non-parole period of 3 years and 6 months.
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