Director of Public Prosecutions v Andile Radebe
[2023] VCC 2435
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01027
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDILE RADEBE |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2023, 11 December 2023 | |
DATE OF SENTENCE: | 21 December 2023 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [20##] VCC | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of intentionally damage property – one charge of home invasion – one charge of intentionally cause injury – finding of guilty by jury – utilitarian value of rejected offer to plead guilty before trial – parity – multiple co-offenders
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Zarghami v R [2020] VSCA 74; Carr v The Queen [2012] VSCA 299; R v Verdins [2007] VSCA 62; 16 VR 269; DPP v O’Brien [2019] VSCA 254; DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486; Farmer v The Queen [2020] VSCA 140 [52]; DPP v Hudgson [2016] VSCA 254
Sentence: 2 years and 10 months' imprisonment, with a non-parole period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Mr T. Battersby | Slades & Parsons Criminal Lawyers |
HER HONOUR:
1Andile Radebe, on 25 August 2023 after a 10-day trial, you were found guilty by jury of:
·One charge of intentionally damage property, contrary to s 197(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 10 years' imprisonment (Charge 1);
·One charge of home invasion, contrary to s 77A of the Crimes Act, which carries a maximum penalty of 25 years' imprisonment (Charge 2); and
·One charge of intentionally causing injury, contrary to s 18 of the Crimes Act, which carries a maximum penalty of 10 years' imprisonment (Charge 3).
2On the same date you were found not guilty of the charge of aggravated home invasion and the charge of armed robbery.
Circumstances of Offending
3Given the jury's findings, I sentence you on the basis of the facts as they were alleged at trial pertaining to the three charges of which you were found guilty.
4You were aged 33 years old at the time of the offending. The co-offenders in this matter, Jordan Winsor and Shaurya Tomar, were aged 18 and 28 respectively.
5The complainant in this matter is David Hope, then aged 35 years who resided in Lilian Street, Bulleen. Mr Hope was not known to you prior to the offending. He was known to both of your co-offenders.
6On 30 January 2021, Mr Hope arranged with his friend, 16-year-old Lily MacNeil to meet up in Elgar Road, Doncaster for a drink. This was an apartment in which Mr Tomar was staying at the time, with his mother.
7Before going to the apartment, Mr Hope met with Lily MacNeil at an industrial site near Elgar Road, where they met with Jordan Winsor and another female named Anna. The four of them went to the apartment at Elgar Road, where with Mr Tomar, they were drinking and smoking. They later left and went back to Mr Hope's residence where there was a physical altercation between Mr Hope and Mr Winsor in which Mr Winsor was assaulted and evicted from Hope's house. Mr Winsor later returned at around 2:35 pm looking for Anna. That visit was captured on Mr Hope's Ring doorbell camera. Mr Winsor appeared to be distressed. Sometime later, Ms MacNeil and Anna left the house separately.
8A few hours later, at around 7:30 pm, Winsor and another male (who was unknown to Mr Hope but has since been referred to as Mr Lawther) returned to Mr Hope's residence. The visit was captured on Mr Hope's ring doorbell CCTV footage. Both men indicated to Hope that they were not there to cause trouble, but because a friend had left something there and that there had been a misunderstanding. There has been some suggestion that the items that they may have been seeking were two gel blasters. Mr Winsor and Mr Lawther left without gaining entry to the premises.
9At around 3.20 am the next morning, being 31 January 2021, a neighbour who was finishing work, spotted three men in a white Toyota Corolla (registration THK 114) stopped on Lillian Street near Mr Hope's residence. This car was later confirmed to be a car that you had leased.
10
At 3.40 am, the Ring doorbell footage then shows yourself, and your two
co-offenders, Mr Winsor and Mr Tomar, attend to the front door of Mr Hope's residence. You were wearing a cap and sunglasses. Mr Winsor was wearing a black cap and jacket, and had his face partially covered with a black ski mask. The prosecution case was that Mr Winsor can be seen holding a knife. On the jury's verdict, it is clear the jury were satisfied beyond reasonable doubt that both Mr Winsor and Mr Tomar had with them a knife. The case against each of you was not put on the basis of complicity with respected to the aggravated home invasion charge, but rather that each of you had an offensive weapon being a knife. By the jury's verdict, it seems they were not satisfied that you had a knife.
11Mr Hope was asleep on the couch and was awoken by the noise at the front door. The CCTV footage depicts you pick up a garbage bin and throw it towards the front door, causing the door and glass to shatter. Mr Hope said he heard the words 'police, police, police - this is a search warrant'. He realised it was not the police and stated that he tried to go the kitchen to arm himself, at which point you and you co-offenders gained entry through the broken glass door.
12One of the neighbours gave evidence at trial that she heard shouting, glass smashing and banging. She said she heard you and your co-accused shouting words to the effect of 'Doncaster Police, open up'. Consequently, she did not call police.
13Once the three of you had gained entry to the premises, you repeatedly shouted 'police'. Mr Hope recalls seeing offenders holding big and shiny kitchen knives which they were swinging around. Mr Hope said at one point, a knife was pressed against his neck.
14You and your fellow co-accused then forcefully grabbed Mr Hope and threw him into a bedroom next to the front door. Each of you began to smash furniture and strike the complainant, using bed palings from his damaged bed. This caused injuries to Mr Hope's head, resulting in bleeding. Mr Hope was threatened and told not to contact police. It was the prosecution case at trial that the three of you stole items from Mr Hope and you were all charged with armed robbery, but ultimately each found not guilty of that offence.
15The audio of the home invasion was captured in part of the Ring doorbell footage. You and your co-accused can be heard yelling words to the effect of 'Room clear', and Mr Hope recalls words being yelled such as 'this is the police', 'room clear' and 'no suspects here'.
16The three of you then left the residence and returned to the white Toyota.
17Police attended the Lillian Street property at approximately 3:45 am and observed broken glass panels in the front door and blood on the footpath in front of the house. Mr Hope was visibly bleeding from the top of his head. The premises appeared to be ransacked.
18Mr Hope was treated at the scene by paramedics for a laceration to the top of his head, and an abrasion to his left lower back. Mr Hope declined transportation to hospital.
19The next day, a credit card in your name was located by a locksmith in Mr Hope's home. DNA swabs located from the blood found in the premises was forensically analysed and matched your DNA profile.
20You were interviewed by police on 15 July 2021 and participated in a taped record of interview. You denied the allegations saying:
·You had been at a family barbeque earlier the evening before, staying until around midnight. You then went to a friend's Airbnb.
·You were currently driving a white Toyota Corolla which was a rental car arranged by your work. You said you had had the car for a number of months.
·You said you lost your wallet at a New Year's Eve party. You agreed it was your credit card found at the scene saying you thought Mr Winsor and Anna had taken it from the barbeque.
·You said you did not know Mr Hope. When questioned as to the DNA found at the scene you said you got framed. You said your vehicle had been stolen by Anna, Jordan and Lily. The day prior you had been drinking at 'Shari's Airbnb’ and you had left your car there when it was stolen by them.
·You said you were struggling to remember everything due to psychological strain.
·You were shown CCTV footage and you did not accept that you were depicted within that footage.
21You were charged on 30 October 2021 and bailed. You were committed to stand trial on 16 September 2022 when the matter proceeded by straight hand up brief. Following the jury's verdict, you were remanded in custody. I will say more about some of the efforts at resolution prior to trial, shortly.
22You ran your trial primarily on the basis of identity – that it was not you present on the night at Mr Hope's home. Frankly, it is difficult to see how this position was maintained given the CCTV footage and both the finding of your credit card, and that DNA located on a drawer in one of the bedrooms was of such statistically high probability to be yours. In the alternative, it was submitted to the jury that even if they were satisfied that you were one of the three men who entered Mr Hope's property, that you: a) did not have an offensive weapon with you (something that the jury were evidently not satisfied had been established beyond reasonable doubt; and b) that you did not enter with the intention of assaulting Mr Hope, nor to steal. It was further contended that you did not commit the offence of armed robbery.
23Given the jury verdict, I sentence you on the basis that you did enter the property with an intent to assault Mr Hope.
Victim Impact
24There is no victim impact statement.
Plea Hearing
25Following the jury's verdict, a plea hearing took place on 11 October 2023. The hearing was adjourned part-heard to enable your counsel to obtain a psychological report, and then later to enable a Forensicare report to be prepared. Further plea submissions were made on 11 December 2023.
26It is necessary now to say something about efforts made to resolve the matter. Your counsel Mr Battersby submitted that you had previously made an offer to resolve these matters in May and June of this year. There were two days of case conferences, during which you offered to plead guilty to a charge of home invasion (intent to steal). There had been some dispute regarding the presence of weapons, and it appeared that as of 5 June 2023, when the prosecution wrote to your legal representatives, the Crown were prepared to resolve your matters on the basis of home invasion (intent to steal), robbery (which was not included in your offer to the prosecution) and common law assault. At that point, it seems that the matters were to resolve on this basis for the most part. Your lawyers had indicated a preparedness to plead guilty to home invasion and robbery. However, on 16 June 2023 the prosecution advised that they would not resolve the matter on the basis previously indicated and that the Crown would proceed with an aggravated home invasion charge. You have ultimately been found not guilty of that charge, but guilty of the lesser charge of home invasion (intent to assault).
27Mr Battersby submits that your willingness to plead guilty to a resolution that included home invasion (albeit on a different basis regarding your intention) means that you should receive a discount on sentence to reflect your preparedness to plead guilty to a charge for which you were ultimately found guilty. He submits that the aborted plea resolution cannot be irrelevant to sentence. That by such a plea offer, you were prepared to accept responsibility for your offending and this would have had a potential utilitarian benefit.
28I accept that submission. The prosecution chose not to accept the offer made, as they were entitled to do. You were not prepared to plead guilty to aggravated home invasion and went to trial as you were entitled to do. However, whilst your intention upon entry and the presence of a weapon were in issue at trial, you ran your case on the basis of identity. In doing so, you did not accept, certainly before the jury, that you had been present; you did not enter a plea of guilty to home invasion. Instead, as is your right, you put the prosecution to its proof. You are not to be punished for that, nor for the way in which you ran your case at trial. Once the prosecution had indicated their intention to proceed with an aggravated home invasion charge, your conduct of the trial should not disentitle you to some benefit for your earlier willingness to plead guilty to a lesser charge.
29Ultimately, I agree that there was a utilitarian benefit to the rejected plea offer made. I take this into account in accordance with the principles set out in Zarghami v R,[1] citing Carr v The Queen.[2] I take your earlier willingness to plead guilty into account. Your counsel concedes that the offence for which you were ultimately found guilty contained different particulars; and further that the facts of this proceeding do not entitle you to the full discount that would have been applicable had the matter resolved to a plea of guilty. But a discount is appropriate nonetheless.
[1] [2020] VSCA 74.
[2] [2012] VSCA 299.
Prior Criminal History
30You have admitted a prior matter from November 2018 relating to the possession of drugs of dependence and trafficking in oxycodone, and dealing with property suspected to be proceeds of crime. You were convicted and placed on a community correction order. Since this offending you have also been fined by the Magistrates Court for using carriage service to harass, enter private place without excuse and state false name when requested. You do not have any priors for violent offences.
Personal Circumstances
31Your personal circumstances were canvassed during the plea hearings. You are now 36 years old. You were born in South Africa in 1987 and you are the youngest of three boys. You witnessed significant violence at a young age and your family left South Africa as your father was a political refugee, coming to Australia in 1991. You became an Australian citizen in 1994.
32Your father worked as a criminal solicitor for the Victorian Aboriginal Legal Service before going into private practice. Your mother was a social worker with the Department of Child Protection. Your parents are both retired and live in Queensland. They are both fully supportive of you; your father came to Melbourne for the trial and for your plea. Your older brothers both have successful careers in Melbourne and Queensland.
33You grew up in the Eastern suburbs mainly but spent a number of years in Bairnsdale. At times your family lacked support and both your parents worked long hours to provide for the family. Whilst you had no difficulties academically during your schooling, you experienced some behavioural issues and faced expulsion due to fighting. You were frequently bullied during your younger years and felt ostracised because you were the only African student in your school and suburb.
34You completed Year 12, and you went on to complete a Bachelor's degree at Swinburne University. You had constant employment in various roles, the most significant being as a conciliation officer for WorkSafe Victoria for five years. More recently you have been working with AGL as a case manager. Your employer is unaware of these proceedings.
35You were a talented rugby player with Box Hill until you suffered a significant spinal injury, rupturing your C4 vertebrae. This required ongoing rehabilitation and you were prescribed opioid painkillers. Unfortunately, as a result of this, you found yourself caught in a spiral of addiction, and you began selling drugs to fund your own habit. This led to your prior court proceedings.
36You have indicated that you hope to be able to return to work once released from custody and build a life free from drugs and previous associates.
37During your teenage years, you began using cannabis, and by 2021, you were using this drug daily, as well as MDMA. You first drank alcohol at the age of 12 and by the time you were 19 years, your consumption of alcohol had increased significantly. You began using methamphetamine in 2019 and continued to use this drug into 2022. While using this drug you experienced psychosis. In 2019 you also began using heroin. Your reliance on drugs was such that you have been diagnosed with Substance-Induced Psychotic Disorder/Schizophrenic Spectrum Disorder and Substance Use Disorder in remission by Gina Cidoni. However, psychiatrist Dr Sharma considered that there was a lack of evidence of objective symptoms of chronic psychotic disorder, and he considers such disorder unlikely. He considers that you meet the criteria for alcohol, cannabis and opioid use disorders. It seems that at the time of this offending, you were substance affected and this in combination with your heightened emotional state as a consequence of your grief over a family member was something of a recipe for disaster.
38You have had a series of significant relationships. During one of the relationships when you were aged 26, your partner suffered a miscarriage and thereafter the relationship deteriorated. This appears to have had a significant impact upon you.
39Following the demise of a subsequent relationship with a much younger partner in 2020, you considered that you had been a victim of black magic. Your partner had connections with others involved in maleficium or sorcery, specifically black magic and voodoo practices. You believe she and her new partner placed a demon inside you and as a result you spent a considerable amount of time bedridden. You have spent a considerable amount of money, reportedly in excess of $40,000 on faith healers and religious practices in an effort to counteract the alleged black magic and relieve yourself from this. According to Dr Sharma, prison medical records do not indicate any reported experiences of black magic or hearing unusual voices, though your history of anxiety and depression is noted.
40Dr Sharma considers that you have a long-standing anxiety disorder. You have struggled with depression since 2006. You have sought treatment for your depression and anxiety over many years and you have engaged with mental health professionals since you were 20 years old. You have historically been prescribed medication to manage these issues. There was an incident of self-harm in 2015, following your partner's miscarriage. Your most recent therapy occurred between December 2021 and March this year.
41Dr Sharma considers there is no causal link between psychiatric illness and your offending. Your substance abuse issues appear to be most relevant to this, and Dr Sharma considers your polysubstance dependence is directly linked and associated with your history of criminality.
Verdins considerations
42Ms Cidoni opines that your thought disturbance and related symptoms might lead to heightened distress and potential conflict in custody. The setting may intensify your detachment from reality, leading to misinterpretation of interactions as perceived threats. This may lead to unnecessary confrontations with staff and other inmates, which could make your time in custody challenging. Dr Sharma considers that the custodial environment may be more burdensome for you as a result of your anxiety disorder, and that continued detention may likely cause further deterioration in your mental health. Your counsel does not submit that the considerations of limbs 5 and 6 in R v Verdins is enlivened but given your psychological profile these matters are nonetheless relevant.[3] I take them into account.
[3] [2007] VSCA 62; 16 VR 269.
43
Physically, you suffer from asthma and a degenerative eye condition called
keratoconus, which you are concerned will deteriorate whilst in custody. Whilst in the community you managed this with contact lenses but since your incarceration you have not had access to an optometrist and you have been required to wear sunglasses to help with light sensitivity.
44Your time in custody has not been easy. You reportedly feel ostracised in prison and this has taken a toll on your mental health. You consider that you are perceived as different from the prison population, and that this had made other inmates wary of you. I take into account your experience of custody has been difficult for the reasons reported to Ms Cidoni and Dr Sharma.
45Despite these difficulties, it is to your credit that you have managed to complete a considerable number of courses during the almost four months that you have been in custody. This indicates a desire to improve yourself and bodes well for your prospects of rehabilitation.
46A character reference was prepared by your father. He describes you as a dependable, reliable and hardworking member of the family. You are well loved and respected by your peers, and within the community you are recognised for being a polite and respectful person with a strong belief in social justice. You have a strong work ethic and regularly sent money to your grandmother in South Africa until her passing in April this year.
47According to your father, you feel embarrassed and stressed about these proceedings.
Nature and Gravity of Offending
48Home invasion is by its very nature, a serious offence. This is reflected in the maximum penalty applicable, and the fact that Parliament has seen fit to mandate a term period of imprisonment as applying to this offence. Prior to changes in legislation, this offence might have been laid as an aggravated burglary. In DPP v O’Brien,[4] the Court of Appeal confirmed that sentencing decisions concerning home invasion as a form of aggravated burglary remain directly relevant to sentencing for this offence.
[4] [2019] VSCA 254.
49Home invasion style aggravated burglaries were discussed in Hogarth v The Queen[5] as particularly serious, noting at [1]:
Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge.....The entry of offenders- acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householders, irrespective of what may occur after entry.
[5] [2012] VSCA 302; (2012) 37 VR 658.
50This encapsulates to some extent what occurred here when you attended with your co-offenders, after smashing your way in and assaulting Mr Hope in the early hours of the morning.
51You have now given an account of what you say you were seeking to do at Mr Hope's home. Submissions were made at the plea as to why you were there and how you came to be there. You have since further elaborated on this in your letter to the court. You describe that in the evening prior to the offending you had been at a barbeque to celebrate the life of your recently deceased uncle. You were substance affected. In effect, you described initially having become caught up with Mr Winsor and Mr Tomar who came to your place to return your car. Your counsel submitted that your co-offenders were there to recover property. In your letter to the court, you describe that while socialising with them, you claim to have learned that Mr Winsor had been assaulted by Mr Hope. You say that you learned at that point of allegations regarding Mr Hope's character including that an underage girl named Lily had been residing in his backyard. You claim that you had learned that Mr Hope had been taking advantage of Lily and that earlier that day Mr Winsor and Mr Hope had been smoking methamphetamine, and Mr Hope had refused to hand over Mr Winsor's belongings.
52You told Dr Sharma that upon learning this information, memories were triggered and according to your letter, you went into a fit of rage, particularly at the notion that Mr Hope might be taking advantage of two young people including Mr Winsor. You describe feeling disgusted and appalled, yet you also say in your letter to the Court that you went to Mr Hope's home to help recover Mr Winsor's property and 'to rescue Lily' as you felt she was vulnerable.
53Pausing there, whilst there was some evidence to suggest that Lily may have been present (having regard to one of Mr Hope's answers at trial) or that she had been staying in a tent in the backyard at Mr Hope's, this was not explored much further on the trial and there was no evidence at trial of a rescue mission for Lily. Nor is there any evidence that a young female was assisted from Mr Hope's house that night. Even if this were so, surely the presence of three men, some of whom were armed, violently crashing their way into Mr Hope's home would have alarmed anyone who was privy to this sort of offending.
54In any event, I must sentence you on the basis that the jury have found that you entered Mr Hope's home with the intention of assaulting him. As to what your motivations were, I note that this account as now given, comes from your letter. You offer this as an explanation for your offending. It seems that your consumption of methamphetamine played a significant role.
55When assessing the objective gravity of home invasion, regard should be had to the list of non-exhaustive sentencing factors set out by the Court of Appeal in DPP v Meyers[6] relating to the offence of aggravated burglary, but equally applicable for this offence. Some of these factors are an element of the offence of home invasion in any event. These include:
(a) intention at the point of entry;
(b) the mode of entry;
(c) whether the offender was carrying a weapon;
(d) whether the offender was alone or in company;
(e) the time of day at which the burglary took place;
(f) what the offender knew or believed about who would be inside; and
(g) whether the offender was someone of whom the victim was particularly scared.
[6] [2014] VSCA 314; (2014) 44 VR 486.
56Here, you entered with two other men, two of whom carried knives. One of those knives seems to be clearly visible from the CCTV footage while you were at the door. The prosecution did not put the aggravated home invasion charge on a complicity basis and again, by the jury's verdict you were presumably not found to have had a weapon. The smashing of Mr Hope's front door forms part of a separate charge as it was through this smashed door that you gained entry. That you gained entry by violent means and in the early hours of the morning would have added to the terror and confusion experienced by Mr Hope. You were not known to him and so you were not someone of whom he was particularly scared, though as a stranger, he would have had no understanding as to whether you posed a potential threat to him. There was a degree of planning and co-ordination, although the execution of the offending was not particularly sophisticated. The constant references to being 'police' under the pretext of conducting a search suggests there was an attempt to make it sound as though what you were doing was somehow legitimate. The offending lasted approximately five minutes – and so was not a fleeting episode.
57You were the eldest of the three offenders. Mr Winsor was considerably younger than you, though he was the person who had had an earlier altercation with Mr Hope.
58
It is difficult to make an assessment of whether your role really was such that you simply found yourself caught up with the other co-accused in seeking to enter Mr Hope's home to carry out an offence. But by your own account to Dr Sharma and to the court, you were more than a mere passenger to this offending. You have expressed that you felt motivated by anger and disgust and this, in conjunction with your drug use, indicates that when you left your premises to attend Mr Hope's home, you were fuelled by anger. By the jury's verdict, they have concluded that you, along with your co-offenders, entered Mr Hope's home with the intention of assaulting him. That was the way that the charge was particularised. That is not to say that there could not have been a secondary reason for you and your
co-accused entering the premises, whether that be to retrieve property, or to see for yourself whether there was a young female present.
59As I have said, the prosecution put its case on the basis that the three of you entered with an intent to assault Mr Hope, and consistent with the jury's verdict, it is upon this basis that I must sentence you. As to who instigated attending there, I cannot say to the requisite standard. Whichever of you made the decision to travel there and enter, again I cannot say. As I have said, Mr Winsor was the person with a previous connection to Mr Hope, but as to who was co-ordinating this attack, or whether you were all equally involved, is unclear. The CCTV footage reflects that you took the lead in terms of entry to the property, by smashing the door. As to whether you played a greater or lesser role once inside, I am unable to say.
60By the evidence of Mr Hope and from my own observations of the CCTV footage, not to mention the coordinated efforts at all pretending to be connected to law enforcement, you all appear to have been equally involved.
61I accept that the injury sustained by Mr Hope was towards the lower end and accordingly, I do not propose to make any orders for cumulation when imposing sentence.
Sentencing Act 1991
62Home invasion is a Category 2 offence pursuant to the Sentencing Act1991 (Vic) which requires that a term of imprisonment must be imposed for offences of this type, unless one of the exceptions set out in s 5(2H) of the Act applies.
63Your counsel has conceded that the material provided does not satisfy the criteria under s 5(2H) of the Sentencing Act, but submits that I must consider the residual discretion pursuant to s 5(2H)(e), namely whether there are substantial and compelling circumstances that are exceptional and rare. The compelling reasons, your counsel submits, include:
(a) Your early experiences of abuse;
(b) The significant racism to which you were exposed in early life; and
(c) Your lack of relevant prior history.
64The exception under s 5(2H)(e) requires that a 'stringent' standard be met.[7] The circumstances identified must be atypical.[8] The exception requires 'powerful circumstances of a kind wholly outside ... “run of the mill” factors typically present' in offending of the relevant kind.[9]
[7] Farmer v The Queen [2020] VSCA 140 [52] (Maxwell P, Kaye and Niall JJA).
[8] DPPvHudgson [2016] VSCA 254 [112] (Weinberg, Whelan and Priest JJA).
[9] Ibid.
65More recently, the words 'that are exceptional and rare' as it relates to s 10A, and s 5(2H)(e), were revisited by the Court of Appeal in DPP v Lombardo [2022] VSCA 204.
66Looking at the wording of s 5(2H)(e), the Court in DPP v Lombardo said:
[66]First, the court must identify whether there are 'substantial and compelling circumstances'. In that context, 'substantial and compelling' means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
[67]The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also 'exceptional and rare'. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. That is because the meanings of the two words overlap; in particular, 'exceptional' means 'out of the ordinary course, unusual, special', which includes that which is 'rare'. In that situation, a separate test asking whether something is 'exceptional' is also 'rare' would be redundant. Instead, the two words operate together and each influences the meaning of the overall phrase.
[68]The 'exceptional and rare' language is not merely a description of the empirical outcome of applying the law of sentencing to a collection of offences. It is a threshold which must be met before it is open to impose a non-custodial sentence.
67Sadly, as significant as the first of these two matters may have been to your life, neither satisfy the criteria of being substantial and compelling and exceptional and rare. Furthermore, in considering s 5(2H)(e), I am also prohibited from having regard to an offender's prior good character.[10]
[10] Sentencing Act 1991 (Vic) s 5(2HC)(c)(i).
Remorse
68You have expressed your shame to your father. You have also sought to explain your behaviour in a letter to the Court. I have already discussed your account of how the offending came about and your motivations. Importantly, you do in your letter acknowledge the wrongfulness of your behaviour. You now say you take full responsibility for this behaviour, and you are sorry for allowing your anger and emotions to get the better of you. You claim to have had a lot of time to reflect on what you have done. You have expressed in your letter that you are ashamed and embarrassed by what you have done.
69Although not reflected in the fact that you ran a trial, I do accept that you have had an opportunity to reflect on your conduct and that you now accept it was wrong. Although letters to the court are often self-serving, I do accept that it was prepared in a sincere desire to ensure the court understands that you are sorry for your behaviour. I take this and your insight into your conduct into account.
Prospects of Rehabilitation
70Ms Cidoni considers that using psychometric testing you fall on the lower end of violent reoffending probability. Major risk factors include mental instability and substance use. Your delusional tendencies elevate your risk of re-offending according to Ms Cidoni. Substance abuse can act as a catalyst for impulsive behaviours, further enhancing your risk.
71However, you have a limited prior criminal history. I accept that the offending was out of character. You also have a strong employment record, and you have demonstrated a preparedness to manage your mental health by engaging with professionals. You appear to have insight into your own behaviours and the effects of substances on that behaviour. Although you ran a trial, you do appear to be remorseful. Moreover, you have the support of your family.
72In the three years since the offending you have complied with strict bail conditions and you have not committed further offences. Since being remanded in custody you have committed yourself to engaging in courses designed to foster your skills and cement your rehabilitation. Based on all of these factors, I consider that you have good prospects of rehabilitation however, this will be contingent upon you remaining abstinent from drugs and engaging in therapy.
Parity
73I must have regard to the issue of parity. You committed this offending with Mr Winsor and Mr Tomar. You all played significant and equally important roles. However, unlike each of them you were not found guilty of aggravated home invasion. Accordingly, you are to be sentenced on the basis of home invasion, albeit that the maximum penalty is the same however, there is no mandatory minimum period.
74Mr Tomar is yet to be sentenced. Mr Winsor was sentenced two days before his 21st birthday to a charge of aggravated home invasion, criminal damage and intentionally causing injury. He received a total effective sentence of three and half years' imprisonment with a non-parole period of three years. Because he was found guilty of the more serious charge of aggravated home invasion, he was subject to a mandatory minimum sentence. Your counsel submits that your sentence should not be unnecessarily inflated due to the operation of the mandatory sentencing regime affecting your co-accused. I accept this. But given the way in which the offending took place, I must have regard to parity.
75Mr Winsor's personal circumstances were different to yours. He was sentenced as a young offender and accordingly, rehabilitation assumed primacy in the sentencing process. Balanced against this is the fact that you offered to plead guilty to home invasion months before trial, and as I have indicated, I take this into account. I also take into account your strong work history and good prospects of rehabilitation. It is for these reasons, in conjunction with the other matters that I have mentioned including your mental health and your experiences in custody that I am prepared to set a shorter non-parole period than might otherwise be warranted.
Sentencing Purposes
76The Sentencing Act sets out the basic purposes for which a court may impose sentence being just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I have regard to these objectives and I must consider those when having regard to the objective gravity of the offending, your culpability and your personal circumstances.
77The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
78Other members of the community must understand that violent home invasions will not be tolerated. Furthermore, there is a need to deter other would-be offenders from engaging in vigilantism. It is not for members of the public to right perceived wrongs. You too must understand that this sort of behaviour is unacceptable.
79I must also have regard to the principles of parsimony.
80I must have regard to the maximum penalties, as well as the impact of your offending.
81I have had regard to current sentencing practices. That is not a single controlling factor.
Proportionality and Totality
82Having been found guilty of three offences, some cumulation might ordinarily be warranted. However, I note the offending occurred as part of a single episode and there should be a degree a concurrency, appropriate to satisfy the principle of totality. I must ensure that the totality of sentences imposed for these closely connected yet separate crimes, is met with a total and proportionate sentence.
Sentence
83Mr Radebe, I now turn to sentence you as follows.
84On Charge 1, the charge of damage property, you are convicted and sentenced to 2 months' imprisonment.
85On Charge 2, the charge of home invasion, you are convicted and sentenced to 2 years and 10 months' imprisonment.
86On Charge 3, intentionally cause injury, you are convicted and sentenced to 2 months' imprisonment.
87Charge 2 will be the base sentence. I order that the sentences imposed on Charges 1 and 3 be served concurrently with the sentence imposed on Charge 2 and with each other.
88The total effective sentence is therefore 2 years and 10 months' imprisonment.
89I fix a period of 20 months' imprisonment before you become eligible for parole.
Pre-sentence Detention
90Pursuant to s 18 of the Sentencing Act1991, I declare 118 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
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