Director of Public Prosecutions v Alqassim
[2023] VCC 2157
•20 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00965
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSSAIN ALQASSIM |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2023 | |
DATE OF SENTENCE: | 20 November 2023 | |
CASE MAY BE CITED AS: | DPP v ALQASSIM | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2157 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Guilty Plea – Aggravated Burglary – False Imprisonment – handling stolen goods – theft – possessing a drug of dependence – relatively early plea of guilty – complex PTSD – drug abuse
Legislation Cited: Crimes Act (Vic) 1958; Road Safety Act (Vic) 1986; Sentencing Act (Vic) 1991
Cases Cited:DPP v Alqasim [2019] VCC 463; DPP v Wol [2019] VSCA 268; Fisher v The Queen [2018] VSCA 222
Sentence: Total effective sentence of 10 years and one month imprisonment
Non-parole period of five years and six months
s6AAA Sentencing Act 14 years' imprisonment with a non-parole period of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr Morrissey SC with Mr D Brown | Slaveski & Associates |
HER HONOUR:
1Hussain Alqassim, you have pleaded guilty to two charges of aggravated burglary, one charge of false imprisonment, two charges of theft, one charge of handling stolen goods, two charges of possessing a drug of dependence and to four related summary offences, being committing an indictable offence whilst on bail, unlicenced driving, possessing a prohibited weapon without an exemption and dealing with property suspected of being proceeds of crime.
Summary of offending
Incident 1 – Charges 1, 2 and 3
2At around 11 pm on Friday 29 October 2021, you and two unknown co-offenders went to the home of the Fosters, in Eltham. Mr and Mrs Foster were home, asleep in bed, and their 18-year-old son was out.
3You and your co-offenders had covered your faces – one of you was wearing a balaclava. All of you were wearing gloves. Each was carrying a weapon. Between you, you had a silver handgun, a hammer and a large, yellow-handled screwdriver.
4The three of you forced your way into the house via the front door. You all went upstairs and confronted the victims, who were still in bed. Someone turned the light on and the victims were ordered not to move. One of you approached Mrs Foster and took her mobile phone. The entry into the house, with weapons, with the intention to steal and knowing or being reckless as to the presence of people in the house, gives rise to Charge 1.
5One of you walked up to Mr Foster, who was still in bed, and pointed the gun in his face. This person said, 'Where is your fucking money?'. Mr Foster said they had none, and the holder of the gun said, 'We heard you got money'. Both victims then said, 'We don’t have money'. This offender said, 'I know you’ve got a safe, no point fucken lying I know you’ve got one'.
6This offender 'racked' the handgun and a round of ammunition fell on the ground. Mr Foster believed that the gun was real.
7Mr Foster got out of bed and was led downstairs by the offenders with the gun and hammer. Mr Foster managed to open a safe and was told to hurry by the offenders. He pulled out various items, including jewellery and gave it to the offenders. He got a plastic bag from the kitchen, as directed by one of them.
8Meanwhile the offender with the screwdriver remained upstairs with Mrs Foster. He got out a pillowcase and started rifling through the drawers. He asked Mrs Foster if she had any gold and took a box of jewellery and put it in the pillowcase.
9One of the offenders asked Mr Foster where the other safe was. When Mr Foster said there was no other safe, the offender with the gun pointed it at Mr Foster’s head and said, 'Where’s the other safe with the money'. Mr Foster then took the offenders to the second safe. A wallet with cash and travel and bank cards were stolen.
10The offenders demanded to know where the safe with the money was. Mr Foster said there was no third safe. The offender with the gun told Mr Foster to get his phone and to give it to him. Mr Foster complied, having opened the bank accounts on the phone before doing so. He asked the offenders, ‘What have I done?’, and was told to ‘shut the fuck up’.
11In the presence of Mr and Mrs Foster the three offenders discussed how to get money from the bank accounts. It was decided that one of the victims would be held hostage whilst the other two offenders would take Mr Foster to an ATM to withdraw money. This is plan which was carried out.
12One of the offenders – the one who originally had the gun – remained at the house with Mrs Foster, whilst the other two of you, got into Mr Foster’s car. You were one of the people in the car. The offender who now had the gun sat in the back seat behind Mr Foster. The other drove the car to a nearby ATM where Mr Foster was directed to withdraw money. He first withdrew $1,000 and gave it to the two offenders, who had waited in the car. They were not satisfied, and he was told to withdraw more money, which he did in two lots of $500. All told $2,000 cash was stolen in this part of the offending.
13You and the co-accused drove Mr Foster home.
14The dashcam footage from the vehicle was tendered. In the initial part of the footage, in the garage, Mr Foster is in the presence of two of the offenders. One is holding the gun and had a yellow-handled tool in his back pocket. The other is carrying bags and has the hammer in his hand.[1] The footage captures some of the conversation in the car, apparently between Mr Foster and the driver. At one point the offender speaking reprimands Mr Foster for making him feel bad about what he had done.
[1]2 mins 19 seconds into footage
15Mr Foster is compliant during this time and is told to get as much money as he can and to hurry up. When he was out of the car the two offenders discussed how much money he could withdraw. One became concerned because Mr Foster had his phone with him and he might call the police. The other said, 'We’ve got his wife at the house, … how is he going to call the cops?”.[2]
[2]8 mins 30 seconds into footage
16Once back at the Foster home, all of them went inside. Mr Foster was told to sit down. The offenders continued to threaten him, and one pointed the gun at him. They told him not to call the police.
17The three offenders then discussed what they would do next. They wanted to get more money from the Fosters and discussed holding them hostage, getting Mrs Foster to withdraw money from an ATM and getting the car transferred into their names and also taking a jet-ski from the garage. One of the offenders went and got food and drink during this time from the fridge.
18The offenders asked about CCTV at the house and how to delete the footage. Mr Foster gave his phone over and the offenders deleted the CCTV footage.
19At around 12:30 am on 30 October 2021, you and your co-offenders left the house. As you all were leaving, you threatened the victims telling them, 'Don’t call the police. We know you have a son and daughter', and, 'We can get to them'. Now, Charge 2, false imprisonment, covers the conduct which is set out at paragraphs 12 to 19 of my reasons.
Gravity of Incident 1
20The following points are immediately obvious in this incident:
(i)The aggravated burglary involved three offenders, each of whom had taken steps to conceal their identity;
(ii)Each of the offenders were armed, one with a handgun which appeared to Mr Foster to be loaded with at least one round of ammunition;
(iii)The offenders appeared to have information about the Fosters’ safes, and were purposeful and persistent in accessing items from the safes;
(iv)Each of points two and three indicate that the offending was pre-planned;
(v)The offenders were bold and persistent in requiring Mr Foster to access money from an ATM;
(vi)The incident commenced late at night and lasted around an hour and a half; and
(vii)The Fosters were told not to call the police and their children were threatened.
21This was a serious aggravated burglary and theft. The false imprisonment was carried out under threat of weapons in the presence of Mr Foster and whilst holding his wife hostage, making it a serious instance of that offence, also.
Victim Impact Statements
22Mr and Mrs Foster both provided a victim impact statement, each of which was read out at the plea hearing. Mr Foster frequently thinks about what happened, and how he can keep himself and his family safe. He has trouble sleeping, and worries about how things could have gone wrong, especially with the gun being used. He is seeing a counsellor but finds it difficult to discuss how he feels. He has installed increased security at the home in order to try to feel safe.
23Mrs Foster is easily frightened and fears a similar event might happen again. She has nightmares and is hyper alert. She is having counselling to try to come to terms with the aftermath of the offending. She is scared and less trustful and feels ostracised by some of her neighbours. A number of the items stolen were of significant sentimental value.
Incident 2 – Charges 4 and 5
24Incident 2, to which Charges 4 and 5 related, happened three weeks later.
25At 12.40 am on Friday 19 November 2021 you and two unknown co-offenders went to a home in Doncaster. The victims, Ms Tian, and her partner, Mr Wei, were at home with their two-year-old son. He was asleep and fortunately remained so, as I understand it, throughout the incident.
26Ms Tian and Mr Wei were in the downstairs study, with the window open. One of the three offenders reached through the open window and pointed an imitation firearm at the victims. He said, 'You know why we are here'. Mr Wei said, 'Why you asking me this? Who sent you?'.
27You and your two co-offenders entered the house via the window. Each of you had your face covered, and wore gloves. Between you there was a knife and a silver imitation handgun.
28The gun was pointed at the victims, and one of you demanded to know where the money was. Ms Tian screamed and tried to activate the security system, but one of you grabbed her to stop her. This offender put a hand over her mouth, held a knife to her throat and told her to shut up.
29The offender with the gun pointed it at Ms Tian, and the offender with the knife approached Mr Wei and held that weapon to his throat. He said to Mr Wei, 'Don’t look at me, don’t move or I’ll kill you'.
30Ms Tian and Mr Wei were forced to move from the study to the kitchen and then to the lounge room. The offender with the knife repeatedly told Ms Tian to shut up. The offenders demanded money from both of the victims.
31Ms Tian and Mr Wei remained seated on the couch whilst the offender with the gun stood over them and then another offender took over guarding them, holding the gun. As Mr Wei and Ms Tian were held in place the other two offenders ransacked the house over the course of around 40 minutes. One of the offenders asked where the drugs were and where the safe was.
32The offenders took the keys to the cars being a Toyota Hilux, and a high-end Mercedes wagon which was valued at around $320,000. They moved the Hilux from the drive and stole the Mercedes. They also stole a large number of valuable items from the house, including jewellery, watches, accessories, clothing, luggage, a wallet, bank and credit cards and personal identification documents.
33When the offenders left they threatened to harm the victims if they called the police.
34The stolen Mercedes was abandoned an hour or so later, and you, who had been driving it, were collected by another vehicle.
Victim Impact
35Whilst no victim impact statements have been provided the prosecution have noted Ms Tian’s statement in which she said,
'It was extremely scary, it's honestly like a nightmare. Those people were extremely fierce and aggressive. This memory will stay with me for the rest of my life. I don't care about the things they took; I just want those people to be caught as soon as possible so there are no other victims. Once we were under their control, we were very obedient, but I believe that if I showed them any signs of resistance, they would have hurt me.'
Gravity of Incident 2
36Incident 2 was also a serious instance of the offences of aggravated burglary and theft. Whilst there is no evidence that the residents of this house were specifically targeted, or that you had specific information about these victims, the offending was clearly pre-meditated. Even if you had decided to commit these offences having seen the expensive car in the driveway, you all had the equipment used with you - you each wore a disguise, and two of you were armed. The weapons were a knife and imitation firearm, and you entered the home of the victims after midnight, well aware there were people present. During the course of the incident, the knife was held to the throat of each of the victims.
37The offending was in company, persistent and threats were made to each victim, during the offending and as you all left.
38The value of the stolen items is not clear, although the value of the vehicle alone was $320,000, and cash amounting to $7,650 was also taken.
39Thus, these two charges are both serious instances of these offences.
Incident 3 – Charge 6, RSO charge 37
40On 3 December 2021, two weeks after Incident 2 an aggravated burglary was committed by three offenders in Doncaster. Whilst there are some similarities between that incident and Incidents 1 and 2, you are not being sentenced for that offending.
41Three days later, on 6 December 2021 you were seen riding a motorbike which had been stolen in the aggravated burglary on 3 December. You were unlicensed, and so the charges you have pleaded guilty to are handling stolen goods regarding the motorcycle and driving whilst unlicenced.
Arrest and Search Warrant – Charge 7,8, RSO 38, 42
42You were arrested at your home in Epping on 9 December 2021. Your room was searched and police found items stolen in the first two incidents, as well as other property reasonably suspected of being the proceeds of crime.
43Police also found a set of knuckle dusters and an extendable baton, which are the subject of Summary Charge 30.
44Using a set of keys found in your room, the police located a car nearby and on searching that vehicle, they found more jewellery and high end designer items stolen in Incident 2, items stolen in Incident 3, and vials of testosterone, and nandrolone. There was also other property reasonably suspected of being the proceeds of crime in the vehicle.
45The full list of items found in the search of your room and the car are set out in the Summary of Prosecution Opening. This property included watches, high end designer bags and shoes, tech devices, $7,650 cash, jewellery, two car keys and various identification documents. Together they constitute a serious instance of a charge under s195 of the Crimes Act (and make up Summary Charge 42).
46At the time of all of these incidents you were on bail for driving charges, which were originally charged on summons, but after you had failed to appear a warrant had been issued and you were bailed on those matters. Summary Charge 14 is a rolled-up charge of committing an indictable offence whilst on bail.
Record of interview
47When you were interviewed by the police you largely answered no comment, as was your right, and you refused to give any information about the firearm.
Personal Circumstances
Background
48You are now 23 years old. You were born in March 2000 in an immigration detention centre in Western Australia. Your parents were refugees to this country having fled from Iraq. Your family lived in the detention centre until you were three and then moved to Adelaide before settling in Melbourne, when you were six.
49Your parents were both teachers in Iraq. After settling in Melbourne, your father found employment as a handyman and your mother continued teaching. Both of your parents have now retired. You state that you had a relatively quiet and stable upbringing. Your parents raised you and your four siblings in the family home in Epping. I note that you are the second youngest and you have a close relationship with your other siblings.
50You told Mr Cummins that you believed that your parents had been traumatised by their experiences in Iraq, which led to them leaving that country to start a new life here. Neither of your parents have any problems with any drugs or alcohol, and you were not exposed to domestic violence.
51You report that when you were around 10 your family returned to Iraq for a holiday. A traumatic event occurred, involving an assault upon you by a 30-year-old family friend. You never told your parents about this event, and state that the assault affected you very much throughout your life. You report flashbacks and obsessive thoughts about this event.[3] Until recently this event was not disclosed by you to anyone, and you have not had any counselling or assistance specific to it.
[3]Mr Cummins [13], [31]
52You attended a number of schools here in Melbourne in the northern suburbs and you successfully completed Year 9. You say that you had trouble at school - you said that you never felt like you fitted in and you were not intelligent enough and you have lacked a general sense of confidence which made it difficult to make friends.[4] When you were either 12 or 13, you started skipping school and smoking cannabis.[5]
[4]AFTR treatment report dated 20 October 2023,8.13.
[5]Psychological report of Dr Cummins dated 29 October 2023, 28; AFTR 8.13.
53When you were around 15 years old, you were a victim of two assaults. The first of this resulted in a broken nose and knocked out teeth. The second assault was more serious and resulted in a period in hospital for you. You had been struck with a bottle and stabbed.[6]
[6]Mr Cummins, [22], AFTR, 8.12.5, 8.14
54After extensive treatment for that stabbing, you apparently began high risk behaviours such as joy riding in stolen cars.[7]
[7]AFTR [8.15], [8.20]
55You were around 14 years old or 15 when you began engaging in such behaviour. You began to associate with other young people who were underperforming at school. Your parents did try to impose structure and discipline, but you were defiant, and you would spend nights away from home.[8]
[8]Staios 3.2
56You were expelled from school a number of times after Year 9 and ultimately dropped out and began working. You had a variety of jobs including working in the concreting and construction industries and working as a real estate assistant and property development assistant for your older brother.
57Your brother Ahmad has offered you employment after you are to be released from custody. This will be in his business where you could work as his assistant in the building and project management industry. You also have plans for setting up your own business, in respect to fish tanks, which is connected to your interest in fish.
58On 1 July 2019 you were released on parole from the sentence imposed by Judge Riddell. That parole period expired on 12 May 2021. Thus the offending for which I will be sentencing you commenced around five months after the end of the sentence imposed by Judge Riddell.
59A number of references from family and friends were provided to me. Your older brother Ameen writes that you were a bright kid but when you hit your teenage years you began making bad friends which led you into criminal behaviour. He thinks you have learnt from your mistakes and that being in prison has matured you and made you turn your mind to the future and how to make a better go of things when you are released.
60Your brother Ahmad also writes of your increased maturity whilst you have been on remand and your sister writes of your plans for the future. Other references say you are remorseful for your behaviour in this offending. These references describe the offending as out of character, which I can understand as it is unlikely that you show the side of you that committed these offences to your loved ones. It is clear from these references that you have the support of your family and your community.
Mental Health
61When you were assessed by Mr Staios back in 2019 he reported that you had had feelings of anxiety and difficulty sleeping. You had been engaged in counselling whilst on a Youth Justice Centre order in 2017. Mr Staios reported that your 'engagement ceased as there were limited concerns surrounding [your] mental health'.[9]
[9]Staios 3.6
62Mr Staios assessed your intellectual functioning, for the plea hearing in this Court in 2019. He considered that your cognitive profile fell in the low average range of intellectual functioning. There was no evidence of a cognitive impairment.[10]
[10]Staios [7.1]
63More recently, your sleep is disturbed by nightmares, and you continue to have flashbacks, including about the recent offending. Mr Cummins sets out in his report the following quote: [11]
'I'm having a lot of sort of flashbacks and even nightmares about my recent offending, but what's really troubling is that I just don't know why I did these things - like I could get ready access to Seroquel and Pregabalin - I didn't have to pay for that.'
[11]Mr Cummins [30]
64Based on your history of offending Mr Cummins considered that a diagnosis of Anti-Social Personality Disorder might be made, although he thought your offending might have been drug related. He noted a history of impulsivity, and a poorly defined sense of self, and chronically low self-esteem.
65In view of your history of traumatic events, and symptoms, Mr Cummins diagnosed you as suffering from complex post-traumatic stress disorder. At interview you presented as moderately anxious and depressed.[12]
[12]Mr Cummins [4]1]
Drugs and Alcohol
66You now attribute your commencement of the use of drugs to the event in Iraq when you were 10.[13] In the reports it is set out that you reported smoking cannabis from the ages of 12 or 13 or 14, using up to 3 to 4 grams weekly until your incarceration after the offending in mid-2018.[14] One report said that you felt like you did not fit in at school, that you lacked confidence and got into trouble for your behaviour, and that 'at age 12 [you] started skipping school and smoking cannabis with [your] newly found friends as a way to fit in'.[15]
[13]Mr Cummins [15]
[14]Staios 3.7 ; Cummins [28]; AFTR [8.13]
[15]AFTR [8.13], [11.9.5]
67You have reported a period of use of cocaine for some months when you were either 14 or 15 or 16, and also drinking of alcohol. You told Mr Cummins that it was your cocaine use that led to the offending and the term of detention in Youth Justice Centre.[16] When you were 19 and a half to 20 years old you became addicted to methylamphetamine, and you often used GHB.[17] In the report from AFTR, it sets out that your substance abuse peaked about the time your offending began, and that by age 15 you were using methylamphetamine and other stimulants daily.[18]
[16]Mr Cummins [28]
[17]Mr Cummins [28]
[18]AFTR [8.21]
68Your level of use of methylamphetamine was very high indeed,[19] and much of your offending whilst you were using that drug was to fund that addiction.
[19]AFTR [8.22] and oral evidence of Mr Millar
69You told Mr Cummins that around a year and a half before your arrest in December 2021 you began using Seroquel to wean yourself off the illicit drugs. You said that you needed to get off the illicit drugs because you had promised your brother you would do so, but then you became addicted to Seroquel.[20] You also began to abuse Lyrica at around the same time, having first been prescribed that drug for pain management when you were stabbed in the leg in 2015.[21]
[20]Cummins [23], [27]
[21]Cummins [27]
Criminal Priors
70You have an extensive criminal history, commencing when you were 15. You were first before the Childrens’ Court in 2015, for three charges of theft of a car, handling stolen goods and driving offences. You received a bond. In 2016 you were again before the Childrens’ Court for offences including possessing a controlled weapon, negligently dealing with the proceeds of crime, theft, burglary and resisting an emergency worker on duty. On that occasion, a Youth Supervision Order was imposed. You were before that court again around seven months later charged with breaching the Youth Supervision Order, and also for new offences including aggravated burglary, theft and driving offences. On that occasion you were sentenced to nine months' in a Youth Justice Centre (YJC).
71You had further appearances in the Childrens’ Court in 2017, 2018 and 2019. I was provided with a summary from one incident in late December 2016 in which you and three other men carried out an organised smash and grab at a Coles Express service station shop, in which cigarettes with an approximate value of $19,000 were stolen. When you were arrested for that offending, you were driving a stolen Mercedes station wagon.
72Your first appearance in an adult court was in April 2019, when you were sentenced by Judge Riddell for offences of home invasion, burglary, theft and handling. You entered a family home with two offenders, having used a jemmy bar to open the front door. When you were arrested you had jewellery stolen the day before in another burglary in your back pocket. You received a sentence of two years and 11 months detention in a YJC.
Matters raised in mitigation
Youth
73You are now 23 years old. I accept that when sentencing a young man such as yourself, rehabilitation should usually be at the forefront of the considerations and that the need to promote your rehabilitation means that other factors, such as just punishment and general deterrence, may carry less weight.
74On the other hand, you present with a serious criminal history and have committed these serious offences after serving time on remand in an adult prison, and then a sentence of YJC, followed by Youth Parole. Where offending is serious, as here, the weight in mitigation to be given by reason of your youth is reduced and the emphasis on your rehabilitation does not extinguish the other sentencing goals and purposes.[22]
[22]DPP v Wol [2019] VSCA 268, [63]; Fisher v The Queen [2018] VSCA 222, [36]
75I accept that a sentence which would see you in prison for the balance or major part of your 20s would have the capacity to crush your hopes for the future and to make you less interested in seeking to address the causes of your offending. In taking this into account I have arrived at sentences which are significantly less than otherwise would have been imposed.
Plea of Guilty & Remorse
76It is accepted by the prosecution that you indicated you would plead guilty to these charges at a relatively early stage. I accept that there has been savings of time and court usage by reason of your pleas, and that the various victims have not had to give evidence in court. The charges resolved in July 2023, at a time when the impact of the pandemic was still having some effect on the court lists, although that impact had declined from its height. Nevertheless, the utilitarian value of the resolution of this prosecution is a little greater than it would otherwise have been before the pandemic.
77As to remorse, I accept that you are now sorry for what you did. You have expressed remorse to Mr Cummins and in your letter to the Court. Mr Cummins writes:[23]
'He stated he felt embarrassed, ashamed and guilty regarding the charges to which he is pleading guilty. At interview he acknowledged he was pleading guilty to very serious and very violent offending. He again stated he felt embarrassed and ashamed regarding his offending behaviour.
…
'He stated - "Thank God I got arrested - because if I hadn't been arrested, who knows what I could've ended up doing. I've worked out that I was just off my head on Seroquel and Pregabalin. I'm sorry for what I've done - it's my fault I did these things - I did them when I was off my head. I'm still having difficulty accepting that I did these things, but I know I did them."'
[23]Mr Cummins [32]-[33]
Delay and time on remand
78You have been on remand since your arrest on 9 December 2021. When you were interviewed by Mr Cummins you were at Port Phillip Prison. You were in a mainstream unit there, and worked as a unit billet. Part of this time on remand was affected by the pandemic and the consequential lockdowns and decrease in activities whilst in custody. You reported to Mr Cummins that during that period on remand when it was affected by COVID-19 you had nightmares and occasional suicidal thinking, including when you read the brief against you for these offences.[24] In your letter to the court, you have described how very difficult it was to be in the constant and frequent lockdowns.
[24]Mr Cummins [24]
79Whilst on remand you competed certificates in education, supply chain operations, cleaning and a certificate related to starting a new business. You also provided certificates of urinalysis, which were all negative, from June, November and December 2022, and February, April and June 2023.
80Whilst you have been on remand you began to engage with an alcohol and drug rehabilitation service called Australian Forensic Therapeutic Rehabilitation (AFTR). This is a relatively new outpatient rehabilitation provider which provides counselling and treatment for drug abuse and associated mental health issues. They have a limited number of clients and often work with people in custody. You initially were involved with AFTR in the context of your unsuccessful bail applications, in July and August 2022. You later began a series of 10 counselling sessions in July 2023 which concluded in October 2023.
81A detailed report was provided and, Mr Millar, one of the counsellors who gave evidence on your behalf on the plea. I have referred to a number of matters raised by Mr Millar and the report already in my reasons. It is a positive thing that you continued to engage with that service, even after your failed bail applications.
82It is clear from your letter that you are concerned about your parents’ health and that you regret being in custody which means that you are separated from them. You hope to get to a point in your life where your parents can be proud of you.
83Whilst in custody, you have also spent time reading about your religion, returning to a regular practice of prayer and learning the Quran by memory.
84I accept that you have taken active steps to address the causes of your offending, whilst you have been on remand, and that you have done so with the prospect of future gaol time hanging over your head.
Prospects of rehabilitation
85Mr Cummins assessed your risk of future violent offending as Moderate-High.[25] He pointed to the need for you to address your drug abuse and underlying mental health issues. Mr Cummins reported,
'At interview he presented as now being very motivated to seek appropriate rehabilitation. It would appear this is the first time he has ever been motivated to seek any rehabilitation.'
[25]Mr Cummins [34]
86In your letter tendered on this plea you say,
'I ask you to please consider giving me the one and only chance in my life, to not give me more prison time and consider letting me out to complete my rehab and kick star my new journey.'
87One of the difficulties I have in assessing your prospects for rehabilitation is that when you presented before a Judge of this Court in 2019, you told her that you had had a wake-up call and were ready to address where your life was headed. You also expressed remorse providing a letter to the court on that occasion in which you apologised to the victim for the home invasion and her family.[26] Whilst there was a period of around a two years between your release on parole (which ended in May 2021) and this offending, in that time you became addicted to a new set of drugs, and then committed these very serious offences.
[26]DPP v Alqasim [2019] VCC 463
88You told Mr Cummins, and set out in your letter, that you were 'off your head on Seroquel and Pregabalin'. I was told by your counsel that the offending was not driven by a need for money to pay for your drugs, as you were abusing prescription drugs. Mr Morrissey suggested at one point that your offending was in the context of a life without purpose and it was some sort of a thrill. If that was so that is concerning.
89Your older brothers are successful and supportive of you. Your parents provided a safe home for you. You now have a desire to start your own business. You have undertaken important steps in your rehabilitation by engaging with AFTR for the 10 sessions. Mr Millar, who gave evidence at plea, rightly indicated that when you are released you will need support in respect to keeping clear of drugs. The report states, accurately, 'the true test of all his treatment … will come when he leaves custody and returns to the real world'.[27]
[27]AFTR [10.3]
90Your counsel accepted that your prospects of rehabilitation are guarded, in view of your history, but he pointed to the efforts you have made with AFTR, and the support of your family and community as positive factors. He submitted that a longer period of potential parole would assist you and provide hope for you leading up to eligibility for parole.
Current Sentencing Practice
91I was referred to a number of cases to assist with current sentencing practices. The most factually similar was DPP v Wol [2019] VSCA 268, which involved a targeted home invasion. There are of course differences between that case and yours. On an appeal by the Director of Public Prosecutions, Mr Wol received a sentenced six years and six months on a charge of aggravated home invasion.
Sentences
92The offending in Incidents 1 and 2 was very serious. It calls for denunciation, just punishment and deterrence, both specific and general. Even giving weight in mitigation to all the factors raised, and in particular your youth, the sentences which I have arrived at are significant.
93I am sentencing you for three incidents, two of which involved serious aggravated burglaries. There must be cumulation between those incidents, and within the first two incidents, in particular. I am mindful of the need to not impose a crushing sentence, and to ensure that when imposing the orders for cumulation, I should take a final look to ensure that the total effective sentence is sufficient to address the combined offending, but not more. Because of the number of offences, some of which are very serious, the orders for cumulation I have arrived at are significantly lower than would otherwise have been appropriate.
94Whilst I am very mindful of not imposing a crushing sentence, I cannot accede to your counsel’s submission that sentences which would enable you to be eligible for parole in the near future can be imposed. Such sentences would be wholly inadequate, in all the circumstances. I will set a shorter than usual non-parole period, but even doing so it means that you will not be eligible for parole for some time.
95The sentences are:
§Charge 1, aggravated burglary, five years and six months.
§Charge 2, false imprisonment, two years’.
§Charge 3, theft, three years' imprisonment.
§Charge 4, aggravated burglary, five years' imprisonment.
§Charge 5, theft, four years' imprisonment.
§Charge 6, handling stolen goods, 12 months' imprisonment.
§On Charge 7, possessing a drug of dependence, a fine of $250.
§On Charge 8, possessing a drug of dependence, a fine of $250.
§On Summary Charge 14, committing an indictment offence whilst on bail, a sentence of two months.
§On Summary Charge 37, unlicensed driving, a fine of $500.
§On Summary Charge 38, possessing a prohibited weapon, four months' imprisonment.
§On Summary Charge 42 which is the charge pursuant to s195, the sentence is 18 months' imprisonment.
96The sentence on Charge 1, which was 5 years 6 months’ is the base.
97Three months of the sentence on Charge 2; six months of the sentence on Charge 3; two years of the sentence on Charge 4; 12 months of the sentence on Charge 5; two months of the sentence on Charge 6; one month of the sentence on Summary Charge 14; one month of the sentence on Summary Charge 38; and six months of the sentence on Summary Charge 42 are to be served cumulatively upon each other and on the sentence on Charge 1.
98That leads to a total effective sentence of 10 years and one month imprisonment. I set a non-parole period of five years and six months.
99I declare pursuant to s18 of the Sentencing Act that you have already served 711 days as pre-sentence detention and I direct that that declaration be entered into the records of the court.
100Pursuant to s6AAA of the Sentencing Act, I state that if you had not pleaded guilty, I would have sentenced you to 14 years' imprisonment with a non-parole period of 10 years.
Other Orders
101On your licence, by reason of Charge 5 which is theft of a number of items including a vehicle, I am required by s89(4) of the Road Safety Act to cancel any driver’s licence you hold or if you do not have one disqualify you from obtaining a driver's licence. A discretionary power to cancel and disqualify you from obtaining a driver's licence also applies on the charge of unlicenced driving.
102Pursuant to s89(4) you are disqualified from obtaining driver's licence for a period of two years, from today.
103And I will make the forfeiture order which has been consented to.
104Ms Parkes, are there any orders or ancillary matters that I should have covered that I have not?
105MS PARKES: No, Your Honour.
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