Director of Public Prosecutions v Aneet
[2018] VCC 2155
•14 December 2018
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-00130
Indictment No.H11261649
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAJOK ANEET |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August, 18 October 2018 Plea , 30 November Further Plea | |
DATE OF SENTENCE: | 14 December 2018 | |
CASE MAY BE CITED AS: | DPP v ANEET | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2155 | |
REASONS FOR SENTENCE
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Catchwords: Aggravated burglary; recklessly cause injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Gray | Office of Public Prosecutions |
| For the Accused | Ms J. Clark | Victoria Legal Aid |
HIS HONOUR:
1 Majok Aneet, on 20 August of this year you pleaded guilty to two charges laid on the filed over plea indictment, being one charge of aggravated burglary and one charge of recklessly causing injury.
2 You have a criminal history of no great relevance to my task and nothing outstanding.
3 As you know, you entered a house with two others. The specified intent was the intent to assault. It was an aggravated burglary courtesy of the presence of a person within the house and your state of knowledge as to that fact.
4 The maximum penalty for the aggravated burglary charge is 25 years' imprisonment. The maximum penalty for the recklessly causing injury is five years.
Facts
5 On 18 October the prosecutor, Mr Gray, opened this matter to me in accordance with a written prosecution opening that was dated 17 October 2018. That was marked as an exhibit, together with the chronology and some photographs. Your counsel, Ms Clark, told me that this was an agreed statement of facts. I see no need then to describe the full factual setting in my reasons. I will not stray beyond the agreed summary. As you know, you and others attended via a car at the victim, Truong’s, house in Avondale Heights. You were a passenger in that car with the three others and as the victim returned to the property in his car with one of his friends, the car that you were in moved and blocked that other vehicle in. You, an unknown male referred to only as Archie, and your known co-accused, Lu, got out. The driver of the car that you were in, a man named Borg, stayed in or at the vehicle. You could have done the same thing as well but of course you chose not to. It is plain that Lu was the instigator here. He was the person yelling at the victim at the scene. You and the other man aided Lu by your presence. You surrounded Truong once he got out of his car and in fact Lu had punched him in the face whilst trying to drag him from the car. Lu dragged him to the front door of the house, again whilst punching him. You accompanied Lu, Archie and the victim. Lu, Archie and you entered the premises with your victim. It was plain enough that this was not a social call occurring. It was plain that Truong was under attack. He was taken into his own house whilst in a headlock. There was another man inside the house. It was a man named Lai, who the three of you pushed past. The summary then sets out all that then took place within the house. Lu has gone to trial. He has been convicted of home invasion, robbery and intentionally causing injury.
6
I say that even without the concession made by the prosecution as to your limited role, it would have been plain that you had a much inferior role here.
Mr Lu was the instigator here in the sense that he held a grievance in relation to Truong and that man’s alleged dealings with a sex tape (in fact it was actually a USB). Lu was the person who was punching and striking Truong. You were not involved in the physical sense. It was Lu who was doing the punching. It was he who was making demands, predominantly for the recovery of the sex tape. That tape portrayed his then girlfriend engaged in a sexual act with her former boyfriend. That girlfriend, Helen Nguyen, had in fact been a resident of this house at one point and had left the tape there. Part of the charter from Lu’s perspective undoubtedly was to recover that object but of course Lu had an expanded charter. The home invasion in his case had not only an intention to assault but also an intention to steal. Undoubtedly he intended to assault. He was also angry at Truong. As I understand it, you did not know Truong at all. Lu was also convicted of the robbery of items taken from inside the house. His involvement in violence was based on his actually inflicting each one of the blows here and he was convicted of intentionally causing injury following his trial. Your liability is very different. It is set out in paragraph 14 of the opening. You were complicit. You assisted and encouraged Lu by your presence. You kept the other occupant of the house, Mr Lai, at bay and prevented his intervention. You were one of the three and hence you made up the numbers confronting this man. He was outnumbered owing to those numbers. So that is owing to your and Archie’s presence. So your physical presence and encouragement was not unimportant. I am not saying that. It was after all a joint entry and there were three of you. Still, your role was very much limited though if I may say so, nowhere near as limited as you described to the Court assessment officer, Mr Miriklis, who prepared the extended pre-sentence report. However, at the end of the day, looking at what you did, you threw no blows at all and there is no complicity at all in, or liability for, the dishonest taking of any property within the house, either in circumstances amounting to theft or robbery. That has got nothing to do with you at all.
7 The police had been summoned by Mr Truong’s female passenger. In fact she had fled the scene and attended at the local police station and a crew was despatched. Someone within the house, it appears likely to be you, though nothing much hangs on that, yelled out, "Police, police", and the three intruders then ran back to the car and left the scene. You dropped your phone either then when you were leaving or maybe in the earlier fracas and that phone was traced to you.
8 Mr Truong waved away the ambulance that attended but he obviously sustained injuries. They were relatively minor and I certainly will not act on his account of sustaining a nasal fracture. There is just no medical material dealing with that at all.
On 8 May 2017 you made some admissions when you were interviewed and the interview was a bit hard to follow and had a level of minimisation. It is clear that this was more than what you described as being just a few friends having a push around. See Question 55. Your more recent account to the author of the extended pre-sentence report is less convincing still and involved, really, a traversal of the plea. I do not accept that account at all and I told Ms Clark as much on 30 November and she told me she was not relying on your account.
9 You were in custody from your arrest on 8 May 2017 until you were admitted to bail on 30 August of that same year. You absconded just prior to the trial listing in August of this year, but then, strangely, you came to court under your own steam to be arrested on the warrant on 17 August. You have been in custody since that day with the resolution of the matter on 20 August and then the filing over of this plea indictment. Having run a trial and been convicted, Mr Lu’s plea was conducted on 14 November, and I will attach my reasons in that case as I sentenced him on 16 November to five and a half years for home invasion, two and a half years for the robbery and 15 months for the intentionally causing injury. Twelve months of the sentence imposed on the robbery and six months of the sentence imposed on the intentionally causing injury were directed to be served cumulatively, resulting in a total effective sentence of seven years with non-parole period of five. The last time I saw of him he was roundly abusing me as he was taken from the Court. The sentences imposed on him say very little at all about what is required in your case, given the very many differences including the different plea, the different charges, the different role, different age, different level of criminal history, not to mention very different rehabilitative prospects.
Impact
10 Your victims have chosen not to make victim impact statements and that was their right. This was obviously a frightening and unpleasant event and the summary makes that clear enough. Aggravated burglaries are notorious for the impact that they bring about. For instance, the lessening of feelings of safety within one’s own home. The female occupant of the car fled the scene in fear, as I said a moment ago. Mr Lai, who was inside, tried to shut the door to stop access. I am not going to speculate about any long term impacts here. I do not have material before me in relation to that. I take the impact of your crimes into account though.
Mitigation
11 Your counsel, Ms Clark, had prepared some written submissions that were marked as Exhibit 1. She raised a number of matters in mitigation and she relied mainly upon:
· Your guilty plea;
· The presence of some remorse;
· Your relative youth and absence of significant relevant history;
· She made submissions as to the relative seriousness of the offending and took me to your greatly inferior role with the more seasoned instigator being Lu;
· She took me to your background and argued that you had quite good prospects of rehabilitation;
· She told me at one stage in the plea that you were an Australian Citizen but later she varied that submission and made some submissions as to the impact of the risk of deportation in this case;
· She relied upon a report from Mr Simmons, a psychologist, as well as a handful of other exhibits being two clean drug screens, a summary of the educational components that you have done in prison, a couple of course completion certificates and an article dealing with your football profile.
· Whilst conceding that this was serious offending, she pointed to your very limited role, the absence of any physical blows from you, the fact that you had been in prison already for a sizeable period. She argued that you could be dealt with by release onto a CCO without being sent back to prison. Failing that, a combination order with some additional time to serve, and failing that, a head sentence with a low non-parole period.
Prosecution
12 Mr Gray, who appeared on behalf of the Director of Public Prosecutions, argued that it was a serious offence as it was after all a confrontational aggravated burglary. However the Director of Public Prosecutions of this State, through
Mr Gray, conceded that owing to the matters in mitigation and the fact of your more limited role, that a combination type order was open here and that the Court had available in such an approach the ability to impose an additional significant period of imprisonment quite aside from the pre-sentence detention.
Guilty plea
13
Let me turn then to the matters raised in mitigation. The first of those is your guilty plea. You have pleaded guilty. It was not an early plea obviously enough. The trial was due to start but of course that trial indictment had different charges on it. It is important to recognise in your case there was no trial. You pleaded guilty. You accepted responsibility, you admitted your guilt and you avoided the need for a trial and that is important. I take those matters into account in mitigation of sentence. Unlike your co-accused, Mr Lu, and I use that term
co-accused loosely as there were very different charges, you, unlike him, have actually taken responsibility for your offending. So it is a big difference. Witnesses have been spared the experience of coming to Court to give evidence in your case. They (Truong and Lai) were called at the committal obviously, and you were involved in that proceeding. They and others were called in the trial of Mr Lu but you had no control over that. They have all been spared that experience in your case. So the community has been saved the time, the cost and the effort associated with the conduct of a trial in this court in your case. You have facilitated the course of justice and I must reward you for your decision to plead guilty and for taking responsibility in the way that you have. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury. Lu, on the other hand, obtains no such benefit. He ran a trial, as was his right, and was convicted of more serious charges of home invasion, robbery and intentionally causing injury.
Remorse
14
As to remorse, you have pleaded guilty and that is ordinarily indicative of some remorse. There is reference also to remorse or regret in the assessment of
Mr Simmons. As against that, there are some statements made by you more recently to the author of the pre-sentence report that suggests that you are still to some extent minimising the seriousness of the offending. Ultimately I think you probably are a work in progress but I am prepared to find that you do actually feel some remorse and regret for the crimes that you have committed.
Background
15
I turn now to your background and I am not going to work my way through your background in every detail. It is set out in quite some detail in the written submissions marked as Exhibit 1, as well as in greater detail still in the report of Mr Simmons marked as Exhibit 2. I have no reason not to accept any of this material dealing with your personal and family background and so I do accept it. Of course it was an unusual background. It would not be one envied by many. You are 25 years of age, not 20, as discussed by Simmons. You were born in Sudan on 1 January 1993. So you were 24 at the time of the offending. Initially I was told that you were an Australian citizen and I had enquired of
Ms Clark directly about that, just to ensure that I was not omitting consideration of any potential mitigatory matter such as the risk of deportation. On the return date of the plea, that is 30 November, Ms Clark had obtained further instructions and she altered that submission, saying that you were in fact not an Australian citizen but were here on a Global Special Humanitarian visa. Hence there was, she argued, the risk of deportation in this case. Returning then to your background, as with many born in that region at that timeframe, you were exposed to a great deal that you should not have been exposed to as a child. I suppose that was just a fact of living in a war-torn region. Even when you were living in Sudan it was an unusual setting with even then an absent mother and father. You left Sudan in 2003 or thereabouts and went to Kenya and though at least you were removed from the immediacy of the war, it was not a positive period at all, as discussed in the report of Simmons at paragraph 5. You came to Australia in 2004 and wound up in Toowoomba with some extended family members. Not your mother, not your father. In fact your father did not leave Sudan and I was told that he was subsequently killed in the hostilities there in about 2014. I was told that your mother remains still in that country. There were obviously massive adjustments to wind up living in rural Australia as a ten or 11 year old. You would have had virtually no English but you attended school up in Queensland and then Victoria. You did year 12 by way of the VCAL process. You excelled at sport, rugby, up in Queensland but you were getting into some strife up there and the decision was made to send you down to Melbourne to stay with an uncle, and you quickly became a very handy Australian rules footballer. Indeed, you were picked up by one of the under 18 TAC cup sides and played there between 2011 and 2013. You went on to Williamstown and Werribee in the VFL but did not get a place on the full list. I was told that you were rookie listed at Werribee but decided to head interstate instead. You went up and played footy in the NEAFL and the QAFL. More recently you have played locally with Deer Park.
16
You have had problems with alcohol in the past and also obviously some difficulties with drugs. Drugs were obviously a problem at the time of the crimes for which you fall to be sentenced. You are in the early stages of a relationship with a young university student. She is studying nursing. She has been present in court throughout these proceedings and she visits you in custody and has done so twice a week. So that is a positive. You have two brothers living in Melbourne and at one point it was suggested that you hope to stay with one of those upon your ultimate release before transitioning to a shared home. That seemed to have altered on the last occasion with, I think, a shared house in
St Albans being mooted with, at that point, an unidentified (to me at least) housemate. When arraigned you gave your occupation as a footballer. You still have the hope that you may be a professional footballer and I have been told in the course of the plea that some interest has been expressed by connections of an AFL club. Look, it is all a bit vague and I certainly do not proceed on the footing that there is any realistic move afoot to recruit you at that level. I mean at the age of 25 you are almost ancient in football terms. I know nothing of your football abilities but you really cannot bank on that sort of opportunity opening up for you. With the events of the last few years and the criminal history and your age, and I guess the past inability to be picked up in the under 18 draft or even to get onto a VFL list, I would judge it to be pretty unlikely that you would progress to the ranks of the AFL. It would take something of a miracle but who knows? I suppose stranger things have happened. Anyway, this issue is not central to my task. The fact is you hope to play at the highest level open to you, be it the AFL, the VFL or in a suburban or a country league, and there is this to be said, at least you have this one strong interest in your life and at any level there will hopefully be some support and structure provided by a football club. There is nothing else placed before me at all as to any other past employment and you need to rectify that. You will definitely need a second string. When you think about it even AFL footballers do, where their average playing career is only four or so years. But again a club, any club, not just clubs at the highest level, they may foster those sorts of connections and opportunities. They often enough do from my experience of them.
17 I see no need then to conduct an audit of your criminal record. It has been placed before me. I accept that it is predominantly for low level street offences. It really does not trouble me greatly. Mostly you have been fined. I was told that you had not been sentenced in the past to a community based disposition or to Youth Justice detention or prison, though you did spend a period of six months or so on remand up in Queensland for charges that were ultimately withdrawn. Certainly the aggravated burglary that I am dealing with is the most serious matter on your history. I do note from the pre-sentence report, however, that you were in fact placed on a Community Corrections order in July 2018 and you failed dismally in that regard, but of course you were in custody within a brief time and Ms Clark said by way of submission, when I raised that matter, that the order barely had the opportunity to get off the ground.
18 There is the report from Mr Simmons. I do not see any point in setting out slabs of the report. I act on it. It is not relied upon in any Verdins fashion. Correctly so. There are symptoms of post-traumatic stress disorder, which is hardly surprising given your upbringing, and in fact on that score, if I have not mentioned it, I do not think I have, I take into account your very much disadvantaged and unenviable formative background in mitigation of sentence. It was a very much disrupted and fragmented upbringing. Even when you came to Australia you did not have the guiding influences that may have existed had your mother or father been here with you. So I take that into account as far as I am able to.
19 You have spent over 230 days in prison and you have obviously done some courses and had some clear drug screens. So again, that is a positive. You have done those courses, you have done educational programs, you have used your time quite usefully.
Youth
20 I turn then to the submissions made as to your relative youth. You were not a "young offender". Let us get that clear. You were 24 at the time so you were not a teenager. You are 25 now. Your counsel was relying on those cases dealing with the importance of youth but obviously adapted to one of your age and background. She argued that they still had some application and undoubtedly that was correct.
21 Youth is ordinarily an important factor, and that is because young people often enough fail to think about the consequences of their actions. I have got no doubt you did not think through these consequences. They are more prone to commit errors of judgment or to be impulsive or to be rash and they can and they do often enough lack insight and judgment and it is for those and many other reasons that the law treats them as being generally less culpable. Youthful offenders are also far more capable of rehabilitation. They are less fixed in their ways. I note that though you are 25, your criminal history is what it is. It does not suggest to me that you are in any way beyond reclamation. The fact remains, of course, you were not 18 or 19 and I cannot treat you as though you were an 18 or 19 year old.
22 Rehabilitation has a greater emphasis in the case of a youthful offender. It is usually more important than general deterrence and punishment. The fact is though that the successful rehabilitation of any offender, whether they are young or old, it serves to actually protect the community into the future and we as judges know that prison can, and often enough does, actually impede rehabilitation, more so in terms of the younger people. It does often enough does corrupt. It is a disposition of last resort for this very good reason.
23 Sometimes though, a young offender, even a young first offender, which you are not, must be sent to prison. That is just the sad reality.
24 The fact is that the more serious the crime, the more likely it is that greater prominence will be given to deterrence, protection of the community, denunciation and punishment, and the less weight devoted to youth and rehabilitation. So you are not some youthful first offender. You have the rather limited history before the courts and you were 24 at the time of the offence and 25 now. I do apply those principles derived from the cases mentioned, such as Mills and Azzopardi, but I adapt them, as I must, to one of your age. I make one thing very plain; your rehabilitation is still a very important consideration for me. Regrettably though, you have committed a serious crime and you were a long way removed from being a teenager when you committed it.
Rehabilitation
25 I turn then to your prospects of rehabilitation. Your counsel argued that you had quite good prospects, given your past lack of significant offending and your limited role in this offending. I was going to say peripheral. Peripheral is probably the wrong word but the point is you were not the instigator and you did not throw any physical blows. It was clearly not deeply thought through or planned conduct. You were not disguised in any way. You encouraged the offending and made up the numbers by your presence, and as I say, the superior numbers was one of the factors here. You do have some support in the community, a bit less than I would like. You have a supportive new relationship but it is in its infancy. You do have some remorse and insight. You have admitted your guilt and you are 25 years of age and you have never offended as seriously as this before and you have already seen the inside of a prison for a not insignificant time. You have a strong interest in trying to pursue your football career, and as I have said already, at whatever level that takes place, hopefully it would place you into some supportive structure within a football club. It is said that this sort of thing may get you back on track in your life. You have obviously run off the rails.
26 Your efforts on the 2018 Community Corrections order are not encouraging but you were a bit out of control back then and you were back in custody within a very short space of time of entering that order. It hardly had a chance to get off the ground. That, of course, was produced by your lack of effort. In the pre-sentence report you are judged to have a high risk of offending with limited protective supports in the community. The accommodation that you hoped to go to had a number of problems with it, involving, as it did, a share house setting and offenders in that house, but at least you demonstrated some insight into that sort of placement being a problem. The place being mooted at the last hearing was a different house in a different suburb and with virtually no further information about it or your housemates. Again, it does not fill me with great confidence. It is all a bit vague for my liking. However, at least you demonstrate some insight into the dangers of negative peer associations. At the time of the offending for which I must pass sentence, you were, for whatever reason, mixing with a number of far older men and I sense an air of you almost falling into this offending. You had everything to lose, you had nothing to gain, did not even know the victim, and yet you attended and exposed yourself to this significant risk. I have a sense you look back and wonder how it all went so wrong, how your life had run off the rails in the way that it had.
27 Well, it may have run off the rails but it is far too early to write you off and I do not. It is hard not to be a little guarded in the circumstances but in fact I am prepared to accept that you actually have relatively good prospects of rehabilitation into the future, and that is if, it is an if, if you can leave drugs and inappropriate friendships and associations behind you. You are certainly not happy with the sort of life that you had been leading, and that is a start. Nor are you enjoying prison. Not many do but some get used to it. You are not. So I do hope that you will to a degree be deterred by the whole experience of being charged and confined as you have been, and then being dealt with by this Court.
28 I take into account all of the written material that has been placed before me, and also the oral submissions of both counsel. That includes the lengthy court ordered pre-sentence report. Let me just see. Did I mark that as an exhibit or not? I am not sure I did. I will mark that report. That is the report of Steven Miriklis dated 3 November 2018. It will be Exhibit B.
Deportation and risk
29
I turn then to the issue of deportation and the risk of that taking place in your case. A sentence of 12 months or more will bring into play the automatic cancellation provisions in the Commonwealth Migration Act. Let us work then on the theory then that you would have your visa cancelled if sentenced to
12 months or more imprisonment. It is then a bit hard to know what would then unfold. You would have rights under that same Act to request a review of any such determination and then further rights to review that decision if necessary in a tribunal or court or both. Where would that all end up? I really have no idea. It would involve pure speculation on my part. However, I do accept that in the meantime a sentence of 12 months or more, if imposed, would lead to your visa cancellation and it would have to cause some decent level of uncertainty in your mind as to what would be taking place in the future. It would make it harder for you to serve any sentence actually imposed. You would not know what would be happening at the end of the sentence. If your visa is cancelled, as one would expect it will be, you would be looking at a stint in immigration detention with the real spectre of deportation at the end of that process. That would surely be a highly unsettling prospect during the service of any sentence. In the absence of your successfully dissuading the relevant Minister or being looked on favourably upon any judicial review, you would then be looking down the barrel of actually being deported from this country and losing your right to remain in this country, a country where you have lived for all these years, and as a person, it seems to me, with no real or meaningful connection at all to any other country. So I take into account the issue of deportation and the risks of deportation and the effect of that in the ways contemplated by your counsel (as referred to in the Guden line of cases most recently considered in Allouch v The Queen [2018] CSCA 244. Having said all of that though, it is not my task as a judge to then select a sentence to actively avoid the operation of those provisions. Whether a judge likes the provision or not is not to the point. We are not sitting here as law makers. The laws are made by others and we follow them. What I must do is pass an appropriate sentence for your crimes, taking into account all of the relevant matters including matters raised on your behalf. These impacts of deportation are raised in a mitigatory sense and the case law confirms they are available to be considered in a mitigatory fashion by the Court. I cannot just ignore those submissions.
The Offences
30 As to the two offences themselves, your counsel conceded that the aggravated burglary was serious offending but argued it was far less serious owing to your agreed role. As I have said already, plainly you had an inferior role to a much older and far more seasoned offender, Mr Lu. He was close to 40, he had a long criminal record and was plainly the driving force on this day. You had for whatever reasons, some misguided loyalty and made some very poor choices. That is what they were. They were your choices. You could have stayed at the car and maybe you would have been in Mr Borg’s position, that is uncharged, but that is not what you did. You entered the house. This was a joint entry to residential premises with an intent to assault. There had also been the assault constituted by the recklessly causing injury. True it is you threw no blows but your presence was important enough or you would not have been present outside the car or inside the house. You were part of a group who had attended at this house. As I have said, it was not a social call. It developed into a confrontational entry and one where there was no doubt that a person was within the house. That was the occupant, Mr Lai, who was trying to shut the door and you all pushed past him. So the aggravated burglary was a serious enough crime, make no mistake about that.
31 I do accept that there are often more serious instances of aggravated burglary coming before the courts than the one you engaged in, given your very limited role here.
32 In Court of Appeal decision of Meyers a number of considerations were set out as to the way a Court might asses the seriousness of an aggravated burglary. They are not exhaustive and they include matters such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Well, you were part of the physical back-up or presence. It was a house that was entered, it was not in the wee hours of the morning. It was around 5 o'clock in the afternoon. There were no weapons or disguises that were used. The group entered though, and you were part of that group, intending to assault. You entered with two others, so it was a joint entry. So your crime is by no means at the lowest levels of the offence of aggravated burglary.
33 It is always a serious offence to enter residential premises as a trespasser as you did and you and your offsiders intended to assault. This sort of entry is inherently dangerous. It is terribly difficult to predict the end outcome. How can you or your co-accused for that matter know in advance how those who are inside the premises may react to such a fluid, threatening and unpleasant setting? Aggravated burglaries can and do often enough escalate wildly out of control. They can go seriously wrong. This was serious offending. The recklessly causing injury is obviously far less serious and your role was plainly the least of the offenders with no actual physical blows from you at all and the injury was, in my judgment, at a low level.
Parity
34 I turn to the issue of parity. Like offenders with like backgrounds and similar roles as a general rule should be dealt with in a like or similar fashion. That concept known by us lawyers as the principle of parity of sentence makes pretty good sense. I have already mentioned the sentences passed upon Mr Lu and the many differences existing as between you and he when it comes to sentencing, all of them running in your favour. Those matters are obvious enough and, indeed, the very matters were conceded by Mr Lu's counsel on his plea before me. I went into some detail in my reasons when passing sentence on Lu at p.1, p.5, p. 9 and I included a detailed section dealing with the notion of parity of sentence on pp.13 and 14. I explained to him then why he would do a good deal worse than you by way of sentence and you will soon see that forecast come to pass, as you will in fact fare much better than Mr Lu. Amongst the reasons for that are different and less serious offences in your case, a guilty plea from you whereas he ran a trial, the very limited role in your case as opposed to Lu plainly being the instigator. You were recruited by him, you were much younger and with a tiny fraction of his criminal history. You have, in my judgment, far better prospects of rehabilitation. His were undeniably slim. You were not directly concerned with any of the physical blows and you had no role at all in, or liability for, any theft or robbery. So the sentences imposed on him say very little at all about what is required in your case. All things are plainly not equal here. There are differences everywhere I look and they all run in your favour. Mr Lu will hear of the sentence that I impose in your case. Maybe he will have grievances, I do not know, but any grievances that Mr Lu may have, will not, as far as I am concerned, be justified. I cannot stop him having unjustified grievances. I have done everything I can in his reasons and these reasons to explain as clearly as I can why you will do so much better by way of sentence than him. Disparity of sentence is actually required here.
Purposes
35 I have to consider a number of purposes of sentencing. Your counsel points to the importance of your relative youth, and whilst accepting that weight must be given to specific and general deterrence and to protection of the community and denunciation and punishment, she suggested that rehabilitation is still a powerful factor here. I believe I can moderate to a degree some of the purposes of sentencing owing to your lack of any sizeable or relevant criminal history, your relative youth and my favourable enough view as to your future prospects.
36 I am required to impose a just and proportionate sentence in relation to your offending. You must be punished and you know that.
37 I must also denounce your conduct.
38 I need to deter you from offending in the future. I believe I can moderate that purpose to a degree here, as well as community protection, given my relatively favourable views as to your prospects of rehabilitation. I think you have already to an extent been deterred. I am hoping that prison has been something of a circuit breaker here for you.
39 General deterrence is a different proposition. It is still a significant sentencing purpose in this sort of case. The court must send a clear message to other individuals in the community who are minded to commit this sort of serious and illegal entry into another person's premises. Such conduct will not be tolerated by the courts and will usually be met with sizeable terms of imprisonment. That is because of the serious nature of aggravated burglary, a fact which has been spelt out by our Court of Appeal time and time again over the last decade. It is also borne out in the sentencing statistics maintained by the Sentencing Advisory Council.
40 I must pay regard to current sentencing practices, though that is not a single controlling factor. I have looked at the Sentencing Advisory Council's Snapshot No.211 of June of this year for the offence of aggravated burglary. Now, that sort of statistical material always has limitations. It says nothing at all about the individual features of the offence or the particular circumstances of the offender. It says nothing about the role of the offender and of course your role here is far less than very often is the case.
41 But the most common sentence involving incarceration for aggravated burglary hovered between three and four years. The average sentence imposed rose to three years and three months in 2016/17. I have also looked at the case of Hogarth and that case provides some guidance in relation to sentencing for the crime of aggravated burglary. It also included a large table of cases. It commented on the seriousness of confrontational aggravated burglary, and the crime that you have committed undoubtedly was a confrontational aggravated burglary. Entry with two others with intent to assault and with knowledge of the presence of a person within the house.
42 That decision of Hogarth and many decisions since, by the way, including the cases of Whiteford [2016] VSCA 26, Bowden and Maslen [2018] VSCA 90 make clear how seriously confrontational aggravated burglaries are viewed.
43 So that is the crime you have committed, a confrontational aggravated burglary. There is no question about that. Your counsel argued that it would be open to admit you to Community Corrections order given the period you had served by way of pre-sentence detention, that you had served already over seven months in custody as at the date of the last hearing.
44 I have to take into account the principle of totality. There is obviously a relationship here between the two offences. You were part of the raiding party. That party attended at the behest of Lu. Lu had his own particular reasons for attendance and I sense you were very much a blind follower here. The recklessly causing injury was not based on any physical force from you at all. Lu was the only person throwing blows and was convicted of the more serious offence of intentionally causing injury. Together you entered the house, he in circumstances amounting to home invasion. You committed the aggravated burglary.
45 I have engaged in a last look at the sentences imposed by this court to consider if they are commensurate with your overall criminality.
Boulton
46 Now, Ms Clark took me to the case of Boulton. We, as judges, are taken to that case in about every second plea conducted in this Court and perhaps we should not be. She essentially was conceding the inevitability of a prison term as she was arguing for a combination type disposition. She argued that you had already served a sizeable enough period in custody and that it would be open to release you from prison onto a suitably conditioned Community Corrections order, either immediately or at least some time in the not too distant future. The prosecution took no issue as to a combination type disposition being open here, though directed my attention to the ability to extend your time in custody for a significant period of time. As long as you were available to start the order within 12 months it would be available as an option. So there was the ability to impose a sizeable prison term given the period you have been held on remand for which there must be a pre-sentence declaration. The Crown certainly were not championing your immediate release. I am in no way bound by submissions made by either side as to the available sentence. Of course I do not ignore any submission made by either party before me but ultimately I have to exercise my own sentencing discretion.
47 Each case is decided on its own facts and the Court of Appeal has said on more than one occasion that the Community Corrections order is not some "get out of gaol free" card. They are not.
48 Obviously not every offender for every crime can or should be admitted to such an order. There are some crimes where the purposes of sentencing simply cannot be given adequate weight by use of such an order, even one imposed in combination with a prison term.
49 Locking someone up is always a matter of last resort for any court. It is never a step taken lightly by any judge. Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned Community Corrections order.
50 It is obviously accepted by Ms Clark that a Community Corrections order on its own could not meet all the needs of sentencing and that a term of imprisonment is required. There is no doubt about that. As I have said, Ms Clark was arguing for a term of imprisonment perhaps equal to the amount of pre-sentence detention with release onto a Community Corrections order. Or maybe extending your custodial placement into the future but not too distantly with provision made for your ultimate release onto a Community Corrections order.
51 Plainly in this case a stand-alone Community Corrections order would not be open. The offending, in reality the aggravated burglary, is just too serious. However, you have served already a sizeable enough period in prison, at this point a touch over 230 days. It is not enough. I do not believe that the period that you have served in conjunction with a Community Corrections order would meet all the needs of sentencing. I believe you must serve a greater period in custody. The questions then for me are what further period should you serve and how should I provide for your release? Should your release be guaranteed as it would be under a combination type order? Or should I proceed by fixing individual sentences, reach a total effective sentence and then then fix a non-parole period. In that setting, whether you would serve the entire sentence or be released at some point after the expiry of your non-parole period, would be a matter entirely for the Adult Parole Board and not for me.
52 A Community Corrections order provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A Community Corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation, and although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a Community Corrections order may remain open, even in cases of very serious offending. See the case of Williams [2018] VSCA 171.
53 Do I even have the option of a combination type order here given the seriousness of the aggravated burglary charge and the limits as to the duration of a prison term which can be combined under the relevant provisions of the Sentencing Act?
54 I believe that I do in this case. I believe that such a combination sentence can and does in fact meet all the needs of sentencing here. It can adequately reflect all the purposes of sentencing and I can in this way minimise your period in custody and hence limit your exposure to the corrupting influences which obviously abound in adult prisons. There are those advantages as well as the ability to provide for significant further punishment as well, in combination with actual treatment and rehabilitation upon your ultimate release into the community on the Community Corrections order. I believe that the sort of services that you need are more readily accessible in the community than they would be in custody. I intend to pass an aggregate prison sentence in combination with a Community Corrections order to take effect upon your release from prison and that release will not be too distant from now. One consequence is that this style of combined sentence reduces, as it must, the length of the actual prison term imposed. That is because there is provision made for further punishment upon your release. Accordingly, the term that I will be imposing will actually be less than 12 months and, accordingly, those automatic visa cancellation provisions will not come into play. I mention, two matters. Firstly, I want to make plain that this consideration, that is your visa status, is not the driving force for me in the exercise of my sentencing discretion. What I have to do is pass an appropriate sentence in accordance with the law and if that leads to cancellation of your visa, so be it. It happens not to here. Secondly, the relevant Federal Minister would still undoubtedly have the discretion to cancel your visa on character grounds should he wish to, so you are certainly not out of the woods on that score. It is just that the cancellation will not take effect automatically as it would if there was a sentence of 12 months or more.
Proposed sentence
55 So then the sentences that I propose and I mention, "propose", because I cannot put you on a Community Corrections order unless you consent, and I will ask about your consent once I have explained what I propose. On the two charges, I intend to convict and sentence you to an aggregate period of 285 days. So that is around nine and a half months. In addition, on the same two charges I will be releasing you on a two year Community Corrections order to take effect upon your release from prison. By my calculations that would be in very early February next year. So not too long from now at all. What you need to do is you need to prepare for your release now, all right.
56
As I have said, I can only release you onto a Community Corrections order if you consent. So I have to explain it to you and obtain your consent. So, please,
Mr Aneet, listen very carefully. Do not expect to get another chance from me. If you muck up this order you do so at your own peril. If you do what you did on the July 2018 order then you will breach it. You would be brought back to court and you would be dealt with and you should expect to be dealt with by way of a significant prison terms with a non-parole period. One which would certainly lead to automatic cancellation of your visa.
Mandatory terms
57 So let me just explain the orders. You have had one of these explained in the past. Maybe you did not listen too carefully because you did not do anything to comply with it, but as you probably know, these orders, and you will get a copy of this that will spell it all out. They have mandatory terms that apply to every person who gets one of these orders. You have the order for two years, obviously, upon your release. So it takes effect upon your release from prison in February of next year, and then for the two year period from that point you must not commit any other offence for which you could be imprisoned in the time of that order. So for two years you have got to stay out of trouble. If you commit any offence that could be punished by imprisonment, you breach it, and that is could be, not is, could be. If you went and stole a Freddo Frog from the newsagent, a Freddo Frog probably costs about 30 or 40 cents, I do not know what they cost these days, a chocolate bar, I do not think any Magistrate in their right mind is going to lock a person up for that sort of theft, but theft is punishable by imprisonment and it would breach this order. So commit any offence that could in theory be punished by imprisonment, you will breach this order, all right? You have just got to stay out of trouble. It should not be a problem. I hope it is not.
58 There is a requirement to comply with your obligations under Regulation 17 of the sentencing regulations. I do not know why they have that on the document. You have got to turn up totally unaffected by alcohol, totally unaffected by drugs when you turn up for any attendance under this order. They will also take a photo for their record keeping purposes.
59 You must report to and receive visits from the Community Corrections officer. You will have to report to the Community Corrections Centre within two clear working days of the order starting, and you will have to let them know within two clear working days of any change of address or job. You must not leave Victoria without first getting permission to do so, and you must obey all their lawful directions. So they are the general mandatory terms that apply. Stay out of trouble and do what you are told to do is what it boils down to really.
Tailored Conditions
60 Then there are the tailored conditions that I tailor to your particular needs, the needs of sentencing as well, obviously, not just your treatment and rehabilitation. Now, you are going to be under supervision for the full period of that order for two years. You must undergo assessment and treatment including testing for drug abuse or dependency as directed. You must undergo assessment and treatment, including testing for alcohol abuse as directed. You must undergo any mental health assessment and treatment as directed and you must participate in programs or courses that address factors relating to the offending as directed by the regional manager. There is also a condition that you do 150 hours of unpaid work over the period of the order. I have some reservations about the unpaid work condition and the ability of that sort of condition to actually bring you into contact with some unfortunate influences, but I really have no choice here. There must be some unpaid work as a further punishment. So I am keeping it to that modest level, that is the 150 hours of unpaid work, over the full period of the order and understand this. It is in addition to the amount of hours that have been ordered on the July 2018 Community Corrections order. That was 120 hours I think. That order still exists. They have not breached you on that, as I understand it, nor do they intend to. So that explains why I am keeping the number of hours down to the level that I am.
61 In addition, I am actually going to monitor this order. I do not monitor many I can tell you. I do not want you to think that court is behind you. It is not. It is ahead of you as well. So the first judicial monitoring will take place back at this court on 8 March 2019 and that will be at 9.30am. You will have a document saying this as well. That will probably only be about five weeks into that order. I expect you will be released at the expiry of the sentence on the 1st or 2nd of February or thereabouts. So it would be only about five weeks into the order that I will see you on 8 March, and I am in doing that following the recommendations of the report. The author of the report tells me that very many of these orders are beached very early on in the first five or six weeks and that it might be of real value to monitor your progress.
62 What you will know today, you will not be leaving the dock and coming out into the public area, obviously. You will be going back to prison, but not for too long, and you will know that you will be seeing me again, and that hopefully will motivate you. So what you must understand is you will be seeing me again in March. So on 8 March, and by then I will have a decent idea about this order and how you are travelling on it because a report will be sent to me by the Corrections officer filling me in on everything that has occurred on the order and your attitude to it.
63 What I am hoping is that you are ticking every box. I am not putting you on this combination order in the hope that you fail. I do not want you to fail. I hope that you get out of prison and that you enter this order and that you are ticking every box when I next see you. I hope to hear that you are living in stable accommodation, that you are employed, that you are offence free and drug free and maybe even back playing footy somewhere, that you are in a relationship still with your girlfriend and complying with every direction under the Community Corrections order. That is what I am hoping. If you are not doing well, if there are hints of non-compliance, well, look out. That is all I can tell you because that is one of the reasons why I will monitor this order. I would be telling Corrections to breach you and to bring you back to court on the very next failure or non-compliance on the order. So I am not going to be tolerating a handful of breaches here. If there are signs that are bad when I see you on 8 March I will tell them to give you no leeway. If there is any further breach conduct, to bring you straight back to court for breach of the order.
64 Anyway, that is the other side of the coin. I hope that when next I see you on 8 March that things are travelling very smoothly. That is clearly what I hope is occurring.
65 You have only had one of these orders before and really you did not pay much attention to it and it is hard for me to know why, but you are not a seasoned offender and you do not really know what I know about how these orders are breached. I have seen them breached in almost every imaginable way. I have seen people not even turn up for induction. So upon your release from prison you are going to have to go to the Corrections officer within two days. So get down there on day one, all right? I have seen people breach them by not turning up at work, by leaving this State, by not turning up for treatment, for testing, for you name it. I have seen people comply as well and when they do it is excellent. It means the order has been the correct disposition here.
66 Let me give you a tip. Treat the Community Corrections officer as someone who can actually provide you with some assistance, all right? You want to actually be communicating with them and if you are having issues, if you are having problems, if there are issues in terms of drugs do not bury your head in the sand. Just raise them with the officer. They are not going to breach you because you are being honest about having some issues with drugs or alcohol. They will actually try to assist you, all right? So do not treat them in that sort of way. Treat them very decently and they will treat you decently.
67 Communicate with them. You are going to have unpaid work. Unpaid work might be inconvenient. Well, it is meant to be. That is the answer. It is part of the punishment of this order. You might be told to go and see a psychologist or to go for treatment. I do not know exactly what they are going to tell you to do under this order but whatever they tell you to do, you do. I have seen a lot of people who breach these orders, they are happy to get them, they consent to them and they are pleased to get one, and then they breach them in all manner of fashions. They do not turn up at unpaid work, they do not turn up for supervision, they do not communicate. That is what it boils down to. If you have got some particular reason why a scheduled appointment is going to be difficult, get on the phone and speak to them, and they will reschedule it. They will not be silly, and even if something happened on the day of one of these events, you are meant to turn up for unpaid work and there was something that had happened or you were, you know, physically unwell or something like that, do not just bury your head in the sand. Get on the phone and ring and they might need some proof of that, but if you do what so many people do, that is do nothing, and then accumulate a large number of absences and then try after the event to justify them, it will never work, it will never work, all right. So you will be decent with them, they will be decent back. Do the work, get it done and dusted. It is only 150 hours or so over two years but do as much of it as you can and knock it off as quickly as you can and then you can work on the treatment components of the order.
Ramifications of Breach
68 Well, it is up to you ultimately as to how you go on this order. I hope you go well. What happens if you do not? Well, it will not just be my order by the way. There is the other order that is lurking in the Magistrates' Court but let us focus on mine. For the two years after your release you are on this order. You have got to stay out of trouble. That is straightforward and if you breach this order by committing offences or by non-compliance you will be brought back to this court in breach. So it is not taken to the Magistrates' Court. It is brought back to me, and I cannot tell you exactly what I would do if I see you again. I hope I will not. That is what I am hoping, but if I see you again in breach what I will do is I will listen to what is said on your behalf, which is after all what a judge has to do. So I would hear any submissions. I would need to make some assessment as to the nature of the breach. Is it a serious breach? Is it a less serious breach? Is there a breach by offence? Is it someone thumbing his nose at the conditions or is it someone who has just missed a couple of attendances? I do not know. I cannot tell you what I would do because I see all manner of breaches.
69 But really, I think work on this theory. I have told you, you heard me tell you what was expressed as the average prison term that was imposed from the statistics, three years and three months as the average. The most common sentence for aggravated burglary hovered between three and four years. I am giving you the sentence that I have given you, the nine and a half months plus this two year Community Corrections order. It is not three and a half or four years. It is that period. If you breach this you have got to work on the theory that you will be brought back to court in breach. You will be brought back in front of me and I would have all the notes that I have made of the plea that has been conducted by Ms Clark. I would have also a transcript of these remarks that I am giving you now. I would know the extent to which I have explained the risks that you would be taking if you breach my order.
70 I can tell you this though. The most common outcome for someone who breaches a Community Corrections order is the order is cancelled. If the order is cancelled, then I have to re-sentence you on these same two offences. If I re-sentence you on these same two offences, if that is where we wind up, it is almost certain then, you should work on the theory that if you put yourself back in that position, that if you come back before me in breach, that the order will be cancelled and that I will have to re-sentence, and if I re-sentence, you should work on the theory that you will be receiving a term of imprisonment with a non-parole period, and in that setting, work on the theory that you will get more than 12 months as a matter of certainty, all right? If that is the position that you put yourself in you are then facing automatic visa cancellation and deportation. So you have everything to lose by breaching this order. You have every reason to comply with this order. You have every reason to refrain from breaking the law. A single offence punishable by imprisonment committed by you in the period of this order would very likely furnish you with a one way ticket to Khartoum. That is what it amounts to. That is your call.
71 So let me just hear from Ms Clark, I have explained the order in some detail, Ms Clark. Do you want to go down and see if your client is consenting?
72 MS CLARK: Yes, I will. Thank you, Your Honour.
73 MS CLARK: Your Honour, the address will be 10 Swindon, S-w-i-n-d-e-n [sic], Road, St Albans, 3021.
74 HIS HONOUR: 3021. Grab a seat then, all right. And does your client consent then to the order or not?
75 MS CLARK: He certainly does, Your Honour.
76 HIS HONOUR: All right, there's a 464ZF order here and that is not opposed?
77 MS CLARK: No.
Section 464 ZF
78
HIS HONOUR: I order that pursuant to s.464ZF(2) of the Crimes Act that
Mr Aneet undergo a forensic procedure for the taking of a scraping from his mouth under the relevant provisions until a sample of sufficient standard is obtained for placement on the database. I judge it as appropriate to make this order. I am satisfied that it is open to make it and appropriate to make it given the seriousness of the offending, the fact that it is not opposed and that the granting of the order is in the public interest.
79 Mr Aneet, just remain seated. That is simply a forensic sample order that I have made against you and it is not opposed. Someone in authority will, when you are in custody, will be running a mouth swab around your mouth. I am not authorising a blood sample at this stage. It is just so a sample can be taken but they can use reasonable force for that procedure to take place but it is pretty straightforward and it is not too invasive so Ms Clark will explain that to you anyway, but I have signed that and made that order.
80 HIS HONOUR: I will make it Sunshine. So anyway, that is what it is. So that is where he has to turn up and if there is a need for them to move it to another area that is what they will do.
81 MS CLARK: Yes.
82 HIS HONOUR: So, all right, let me just find that order so - thanks. Look, I will have that order come down. Just have a look at it, each of you, and just satisfy yourself that it fits the bill and I will have it signed.
83 MS CLARK: And should I have Mr Aneet - - -
84 HIS HONOUR: Yes, all right. I will have my associate come down as well, yes.
85 MS CLARK: If Your Honour pleases.
86
HIS HONOUR: If we just have that copied a few times, yes. All right, so,
Mr Aneet, just stand up if you could. I am sorry I have taken so long to explain all of that but you understand the effect of it and Ms Clark will no doubt be talking to you at some stage. She might have, I think, another commitment, but she will come down - you will go down and see him at some stage?
87 MS CLARK: I certainly will, Your Honour, when I am free.
88 HIS HONOUR: Yes, she will come down and see you at some stage today but what I have done is I have imposed a nine and a half month term. That will expire very early February, okay? And then you will enter onto this order. So you have got to get down to Sunshine Community Corrections within two days of your release from prison. And that is where it will all then start. Hopefully I will never see you again. Or maybe see you playing in footy or something but I do not want to see you back in court, please.
89 MS CLARK: Except for on 8 March.
90 HIS HONOUR: I should say except, correct, I will see you again on 8 March, and that is when next I will see you is 8 March, and my hope is on 8 March that you have got out of prison and that things are going very well, all right? Because you have seen enough of prison today to know that there is no future in that sort of place for you. I mean you can choose but you have been there for long enough to know that - and you have seen enough people around you to know that that is not the sort of life that you want to lead. You have got to somehow break out of that, all right? And you are at a stage where I am giving you this opportunity because you do not have a very significant history and I think it is open to me to combine this order with the prison term but take the chance. That is what I am telling you. Do not muck it up. Do not be thinking back about, you know, the past offending. You have got to deal with the future now and form a relationship with the Corrections officer and hopefully when I see you again on the next date things will be going well in a number of areas in your life, but make every effort on this order because if you do not, if you breach it, you are going to be back in a dock with every prospect then of moving from a dock to an immigration detention centre and then to a plane, all right? It is a pretty stark sort of choice for you. Anyway, best of luck and I will see you on that next date, 8 March 2019 at 9.30 on that morning, all right?
Section 18 Pre-Sentence Detention
91 You have already spent 234 days in custody already, so that period is declared as having been served under this sentence.
Section 6AAA
92 I have taken into account your guilty plea. If you had pleaded guilty not guilty and been found guilty by a jury, I would have imposed a greater sentence. In that setting if you had run a trial I would have given you three years and ten months. I would have fixed a non‑parole period of two years and four months, and that statement is to be entered in the records of the court.
93 Is there anything else at all?
94 COUNSEL: No, Your Honour.
95 HIS HONOUR: All right. Well, best of luck, Mr Aneet, and hopefully things are going well when next I see you, so Mr Aneet can be removed, thank you. All right, look, I have signed that formal order.
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