Director of Public Prosecutions v Aslan
[2023] VCC 2357
•12 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN ASLAN |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial - 3 -12 July 2023, | |
DATE OF SENTENCE: | 12 December 2023 | |
CASE MAY BE CITED AS: | DPP v Aslan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2357 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated home invasion
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Bugmy v The Queen [2013]; HCA 37; DPP v Markhail [2023] VCC 1702; DPP v Moussa [2023] VCC 1799.
Sentence: 7 years’ imprisonment
NPP 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell (trial) Mr C. Thomson (plea & sentence) | James Dowsley & Associates |
1Dylan Aslan, in the County Court at Melbourne, you pleaded 'not guilty' to the charge of aggravated home invasion.
2You and your two co-offenders, Baceil Moussa and Richard Markhail had your matters listed for trial to proceed on 3 July 2023, although they eventually pleaded guilty to the offence. Your pretrial matters proceeded in Court on that day. The following day, a jury was empanelled and your trial commenced. On 12 July 2023, you were found guilty of the offence.
3The incident occurred on 12 February 2022. It was not in dispute that the day before this event, you attended the home of Ms Tegan Miller, at Kirkstead Grove, Craigieburn between 7.12 pm - 9.48 pm. Nor was it in dispute that you returned to the premises with your co-offenders the following morning. Your attendance on both days was captured on CCTV footage.
4
The prosecution case was that three intruders committed the offence of aggravated home invasion. You contended that you had the permission of
Ms Miller to attend, that you were permitted to take drugs and cash to compensate your attendance and that it was an inside job set up by Ms Miller, for her own purpose. In effect, the defence was that it was not a genuine offence of aggravated home invasion, but rather, a charade.
5However, after considering all the evidence, you were found guilty by the jury. I am required to sentence you on the basis of their verdict. The maximum penalty for this offence is 25 years' imprisonment.
6I will continue to summarise the facts, in accordance with the verdict.
7On 12 February 2022, at approximately 3.30 am, you and your co-offenders arrived at the premises in a red Ford Falcon. It was left in the middle of the road with three open doors and the lights of the vehicle turned on.
8You were all disguised with face coverings; you wore a skull mask. You were all dressed in dark coloured clothing and wore gloves. You were all armed; you carried a knife; Moussa carried a machete and Markhail carried an offensive weapon that the prosecution suggested was a small imitation handgun.
9You attempted to lift the garage roller door before Markhail pulled open the front flyscreen door and then kicked in the wooden front door. The three of you then entered the home.
10Ms Miller, her two children and Mr Christopher Sturrock were all present. Ms Miller was asleep upstairs in her bedroom, with her two-year-old daughter. Mr Sturrock was downstairs with her four-year-old son. He stated that his presence was as a babysitter. At the time that you forced your way into the home, Mr Sturrock was outside in the back yard, having a cigarette. He described that you all came barrelling or flying through the front door and then stood at the bottom of the staircase, psyching yourselves to go up. Mr Sturrock recalled that one of you said 'go, go, go, go', and you all then ran upstairs.
11He heard possibly four bangs upstairs, which he assumed was Ms Miller's bedroom door, and heard Ms Miller scream. He immediately contacted the police by making a Triple 0 call.
12Mr Sturrock took the young boy out into the courtyard. Within a very short period of time, two police officers arrived, and called out that they were in attendance. They challenged you and your co-offenders.
13Relevant CCTV footage shows you poke your head through the front door, as you observed the police officers arrive at 3.40 am. Seven seconds later, the CCTV footage shows you run out the back door, through the rear courtyard and climb over the back fence. When you entered the backyard of the house next door, you dropped a purse and headed towards a pedestrian gate. As you approached the gate, you dropped the knife, digital scales and a packet of cigarettes. You then climbed over the gate and ran in an easterly direction.
14You dropped your gloves onto a nature strip and your jumper into a rubbish bin, as you continued to flee. You then made a booking to be collected by an Uber driver nearby and went to a 7-Eleven store, before being dropped off at an address in Epping.
15Your co-offenders also attempted to flee when police arrived, exiting via a balcony on the first floor. Markhail eventually jumped from the balcony and landed in some bushes at the front of the house, where he was arrested. When searched, a number of items including $610 in cash and the Ford Falcon key were located in his pockets. Moussa remained on the balcony until Fire Rescue Victoria attended to provide a ladder; he then climbed down and was arrested.
16Police examined the scene. Upstairs, the premises was ransacked. While the door into Ms Miller's room was damaged, no one was injured in the course of your offending. On the balcony, $9,580 in cash and three bags of a crystal white substance were located. They were later analysed to be methylamphetamine, weighing a total of 83.4 grams. The quantity amounted to approximately 66 grams of pure methylamphetamine; this is a commercial quantity.
17Photographs of the premises and the items located were provided to the jury.
18On 20 February 2022, you presented with medical issues at the Northern Hospital and were arrested. You have been incarcerated since that time. Upon your arrest, you made a 'no comment' record of interview.
19You gave evidence at the trial where you admitted that you were one of the three intruders who entered, that your faces were covered to conceal your identity and that you were armed with weapons to depict, as you described it, a rather menacing sight. Further, that you knew Ms Miller, her children and Mr Sturrock would all be present.
20You denied that you had committed the offence, as you said you had permission to attend the premises and had been instructed by Ms Miller to stage a robbery. Further, that you had permission to take the drugs and cash to compensate you and your co-offenders for assisting Ms Miller.
21The jury verdict of guilty was a unanimous decision and I will proceed with your sentence accepting their verdict. You are not to be penalised for your matter proceeding as a trial. In those circumstances, however, you have not shown any acceptance of responsibility, nor any contrition for your offending conduct. At the plea hearing on 1 December 2023, I was told by your counsel that you maintain your position and have no remorse.
22Initially, Mr Sturrock refused to make a statement. He attended the Magistrates’ Court to participate in a compulsory examination on 6 July 2022 and then gave evidence at the contested committal on 14 September 2022. You were committed to stand trial and pleaded 'not guilty' to the charge. Mr Sturrock was a trial witness.
23Ms Miller persistently refused to make a statement in this matter. Two separate summonses for compulsory examination were issued but she was not served with them. No evidence was provided by Ms Miller in assisting the jury to determine their verdict. The jury was instructed that they must not speculate about what her evidence might have been and to only consider their verdict based on the totality of the evidence before them.
24
This offending is very grave indeed. It was clearly a premeditated and planned offence. Your criminal conduct was threatening and intimidating. While no victim impact statements were provided, there is no doubt that this must have been a terrifying experience. Mr Sturrock stated that after the incident, the 2-year-old child was in shock, shaking and trembling.[1] You were in the company of two other offenders, all disguised and armed at the time you forced your way into the premises. It occurred in the early hours of the morning, when Ms Miller and her young children were at home with Mr Sturrock. You admitted that you were
well-aware that the young children would be present with the adults, when you entered the property. Given that you were in attendance with Ms Miller for at least two hours the night before, you must have gained some familiarity with the layout of her home.
[1] Trial transcript p31.
25It is most fortunate that Mr Sturrock immediately called Triple 0 upon your entry to the premises. The fact that two police officers happened to be very closely located and could attend within minutes of being contacted was highly beneficial, resulting in only a brief presence of the offenders, during the commission of the offence.
26While you entered the house in company, carrying weapons, knowing that someone would be present and with the intention to steal, these are not aggravating features, as they form part of the elements of the offence. The other features that I have outlined do highlight serious aspects of this incident, although it is fortunate that no one was injured.
27The prosecution has submitted that you were the principal offender who enlisted the assistance of the co-offenders. The prosecutor stated that your prior attendance meant that you were the brainchild, in that you organised the offending and then arranged the assistance of others. The prosecution relied on a portion of your evidence in the trial[2], where you said that Ms Miller wanted assistance to stage the robbery, so you contacted your co-accused to do so. It is agreed that there is no other evidence that relates to whether or not the other offenders were organised by you.
[2] Trial transcript p261
28The passage from the trial was given in your evidence, to assist your defence. That is, that a contrived aggravated burglary was planned by the victim, Ms Miller. Your version of events was found to be false. In those circumstances I do not propose to use it as an admission. This answer was given as a statement of your innocence and was rejected by the jury. Ultimately, I am not satisfied beyond reasonable doubt that you were more closely involved in the organisation of this offence than your co-offenders.
29
When sentencing you, I take into account that the role played by you and your
co-offenders at the time you entered the premises was very similar. I consider that you all went to the house with the same objective. I find that you jointly and actively participated in the commission of the offence of aggravated home invasion. I consider that your moral culpability is high and that overall, the offending is a
mid-range example of this offence.
30You have admitted your criminal history, which commenced on 22 April 2014 when you appeared in the Children's Court. You have appeared many times in the adult jurisdiction for offences including assault and violence related matters, dishonesty and several charges of being in possession of controlled or prohibited weapons and firearms.
31You were first sentenced to imprisonment in 2016 and have since spent a significant period of time in custody. On 2 November 2018, you pleaded guilty in the County Court to intentionally cause injury and prohibited person in possession of a firearm and were sentenced to 2 years and 9 months' imprisonment, with a non-parole period of 1 year and 10 months. At the time of offending, you were subject to a therapeutic community correction order ('CCO') which had been imposed as part of a combination disposition on 9 August 2016.
32
On 20 April 2021, an appeal from the Magistrates' Court, involving a consolidation of 16 offences, was dealt with in the County Court. You were sentenced to a term of imprisonment of 1 year, 5 months and 15 days and then released on another therapeutic CCO, with conviction, for 12 months. The CCO commenced on
28 January 2022. The current incident occurred 2 weeks later, which is an aggravating feature of your offending. I note that in your evidence in the course of the trial, you admitted that you were a drug user and the drugs that you intended to take from the address were to be for your personal use. I will deal with the contravention of the CCO shortly.
33On 20 September 2022, you were sentenced to an aggregate term of three months' imprisonment for the offences of assault with a weapon and arson. You have served this sentence while on remand for the current offences.
34I turn now to your personal circumstances. You were born in Australia in October 1996, you were 25 years of age at the relevant time and are now 27 years of age. You could not be described as an overly youthful offender and only limited weight is to be given to your age at the time, particularly due to the gravity of the offending.
35You are an only child and your parents separated when you were a baby. You have one older half-sibling. Your mother commenced another relationship and you moved to East Kew, where you resided with her, your stepfather and two younger half-siblings. You had fortnightly contact with your father, until the age of 18. He made little effort to spend time with you and you have had no contact with him for around four years. You did not have a close relationship with your stepfather, who died two years ago.
36Prior to your current imprisonment, you resided with your mother, who was present on video-link at your plea hearing. I am told that she remains extremely supportive of you, and you are most fortunate in that regard. You have been engaged in a relationship for about two years, which is ongoing. You intend to distance yourself from your influential peer group when you return to the community.
37You attended local primary and secondary schools. You were bullied during secondary school and were often in trouble with teachers for having disputes with your peers, which would result in suspension. You were ultimately asked to leave school during Year 10 and you did not complete any further education.
38You commenced several courses and an apprenticeship as a carpenter, although you did not maintain an interest in any of these programs. You have a limited history of employment as a labourer in bricklaying and concreting, due to the time you have spent in custody. You are currently employed as a manager of a unit in prison, performing cleaning-related tasks.
39Your drug use developed during your teenage years. You first used cannabis at the age of 13. You report a history of substance abuse, excessive consumption of alcohol and occasional use of benzodiazepine. You had taken Xanax and were under the influence of cannabis, methylamphetamine, and alcohol on the night of the current offending.
40You have not had any periods of abstinence from drugs in the past, except in the course of imprisonment. You previously completed alcohol and drug counselling as part of your CCO in 2016, although you did not find it helpful and relapsed soon after. You have not had any engagement in rehabilitation facilities or detoxification programs.
41At the request of your solicitor, you participated in an assessment with psychologist, Ms Rebecca Fakhri. In a report for court dated 15 August 2023, she made the following observations and findings:
·You were polite, co-operative and appropriately engaged in the assessment. You stated that you have no history of mental health diagnoses. You appeared oriented to person, time and place. Your cognition appeared intact.
·You currently experience a moderate level of depressive symptoms and mild symptoms of a generalised anxiety disorder, which is related to your legal matters.
·At paragraph 24, part of your childhood history is outlined. You state that you underwent issues that you have not disclosed in the past. You are hesitant to discuss the details and prefer not to have it raised in open court. You told her that you do not want to put your mistakes down to this event.
·You reported instability in your childhood, due to the absence of your father which contributed to rejection, abandonment and exposure to trauma, which may have led to feelings of being flawed.
·During your childhood, you commenced your problematic substance use through your association with negatively influencing peers.
·There is no evidence that you undergo personality disorders, traits or intellectual impairments. Further, there is no evidence that you have medical or neurological problems.
·While you have some symptoms of post-traumatic stress disorder, you do not meet the full criteria. It is suggested that through intensive therapy you would have the opportunity to explore underlying issues.
·You have developed a pattern of self-medication resulting in cannabis, alcohol and stimulant use disorders. These are all in sustained remission given that you are in a controlled environment.
·Your offending behaviour was predisposed by your mental health vulnerabilities and adopted lifestyle that reinforced your decision making and judgement. Overall, your circumstances would have contributed to your current offending.
·You have spent a significant period of your life within the prison environment. The provision of professional and personal support could make a substantial difference to your coping strategies and would mitigate your risk of re-offending upon your release.
·Your risk of re-offending is assessed as moderate to high on the basis of your extensive criminal history. Your risk is elevated by your poor insight and awareness of your behaviour, as well as psychosocial factors.
·Any custodial sentence should incorporate a period of support and supervision upon your release, to support your transition back into the community.
42It is not submitted that any Verdins[3] considerations are applicable in your case. However, your counsel has submitted that your childhood exposure to trauma, your isolation from your father and your relationship with your stepfather enliven the principles of Bugmy v R.[4]
[3] R v Verdins (2007) 16 VR 269.
[4] Bugmy v The Queen [2013] HCA 37.
43I refer to paragraphs 24 and 119 in Ms Fakhri's report and have considered the childhood matter that was briefly raised, which I have taken into account. It appears that while you may have had a difficult childhood, some issues are only referred to very briefly and are not supported by any evidence. Even if I accept that the very limited history that was provided to the psychologist is true and there were other difficulties in your youth, I am not satisfied that your childhood reflects a background of considerable social deprivation that engages the principles of Bugmy. I note that Ms Fakhri stated that further assessment is necessary to determine whether difficulties throughout your life are related to a specific condition or in response to early childhood trauma. I do take your background into account as part of your general circumstances, although the circumstances of social deprivation are relatively modest when determining the overall considerations in this case.
44As I have said, Ms Fakhri assesses your risk of reoffending as moderate to high. I note that upon your release you will return to live with your mother and you hope to commence work in a construction business that is run by your uncle. Ms Fakhri outlines a number of recommendations for treatment upon your release, which you will need to engage in, to improve your prospects. Clearly, your capacity to remain drug-free is a critical factor. While you have been given the opportunity to access treatment through Corrections Orders in the past, you have not complied with the orders. It is in your own interest to address your rehabilitation, as well as in the community's interest. I consider that your prospects are guarded. This will remain so, until you accept that it is in your own long-term interests to change your criminal lifestyle.
45I have read the sentencing reasons for both co-offenders and considered the principal of parity of sentence. It does not amount to a mathematical equation and I am required to balance a number of factors in this case.
46Richard Markhail pleaded guilty before Judge Chambers to one charge of aggravated home invasion.[5] Judge Chambers found that he carried an offensive weapon at the time of entry but was not satisfied that the weapon was an imitation handgun. He was 25 years old at the time of this offence and 27 years when sentenced. His plea of guilty was not entered at the earliest opportunity, although he did express remorse for the offending as he acknowledged that his actions were 'disgusting'. Worboyes considerations were applicable. He had a significant criminal history and a history of substance abuse. His level of intellectual functioning was assessed as falling within the borderline to low average range. His time in custody had been difficult, given that he was stabbed eight times by another prisoner and Verdins limb 5 was applicable. The principle of totality was relevant, in relation to another head sentence of 21 months that was imposed on 11 March 2022 and served while on remand for this incident. He was convicted and sentenced to 5 years and 6 months' imprisonment. He also pleaded guilty to committing the offence while on bail and received a sentence of one month, to be served concurrently. His total effective sentence was 5 years and 6 months, with a non-parole period of 3 years and 4 months' imprisonment.
[5] DPP v Markhail [2023] VCC 1702.
47Baceil Moussa pleaded guilty before Judge Trapnell to one charge of aggravated home invasion.[6] He was on a CCO at the time of the incident. He was 23 years of age at the relevant time and 24 years when sentenced. His plea of guilty was relatively late but still had a utilitarian benefit including the Worboyes benefit. He showed evidence of genuine contrition and remorse. He had an extensive prior criminal history and a history of substance abuse. He had a diagnosis of ADHD and a socially disadvantaged background that engaged principles of Bugmy v R. He served a sentence of 2 months' imprisonment while on remand. He was convicted and sentenced to five years and six months' imprisonment, with a non‑parole period of three years and five months.
[6] DPP v Moussa [2023] VCC 1799.
48The role of parity is relevant when imposing sentence here, but it needs to be adjusted to reflect the different circumstances between your case and your co‑offenders. I have concluded that the objective seriousness of offending conduct is very similar, although Moussa's moral culpability was reduced by application of Bugmy. Verdins limb 5 was enlivened in Markhail's case and he had borderline to low average intellectual functioning. There is a real similarity in your criminal backgrounds, you were all subject to other orders at the time and you all have a history of substance abuse. You were the same age as Markhail at the relevant time, and Moussa was 2 years younger than you. The principle of totality was considered in both cases. The most significant difference is that you ran a trial and the others pleaded guilty, admitted their offending, showed remorse and received the Worboyes benefit. These factors will result in a disparity in the sentence I will impose.
49When considering your criminal history, I understand that you are not to be punished again for your earlier offences. They are, however, highly relevant in several ways indicating your moral culpability, your prospects of rehabilitation, the increased need for community protection and increased importance of specific deterrence as a factor in sentencing. General deterrence, denunciation and punishment are also important sentencing considerations here. In the past, sentences of imprisonment, as well as being placed on two therapeutic CCO's, have not succeeded in preventing or managing your criminality.
50The charge that is the subject of this trial demonstrates an escalation in the seriousness of your criminal behaviour. You have been on remand since 20 February 2022. I take into account that measures taken by corrections to deal with the evolving COVID-19 pandemic may have added to your hardship as a prisoner. I am aware that vocational and educational programs have been more limited, particularly as you have been on remand throughout this time. I hope that upon the imposition of your sentence, you will be able to undertake some courses. I take the circumstances within the custodial environment that are associated with the pandemic into account, as these hardships justify a sentencing benefit.
51When considering the sentence in this matter, I am aware that the offence of aggravated home invasion is a Category 1 offence, pursuant to the Sentencing Act. The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment. Further, a non-parole period of not less than three years must be fixed, unless the Court finds that a special reason exists. The Sentencing Act 1991[7] requires that a non-parole period must be at least six months less than the sentence imposed. Your counsel did not seek to persuade the Court that a special reason exists in your case. A term of imprisonment is therefore the only appropriate disposition, and the mandatory minimum term is applicable.
[7] Sentencing Act 1991 at s11(3)
52I take into account the maximum penalty for this offence. I take the principle of totality into account, as you have served a short sentence while on remand for this matter.
53Balancing all these factors as best I can, I sentence you with conviction to 7 years' imprisonment with a non-parole period of 5 years' imprisonment.
54I enter in the records of the court that you have served 660 days by way of pre-sentence detention.
55The contravention of the CCO imposed on 20 April 2021 is also listed. You admit that you have breached the Order, through non-compliance and re-offending. You were convicted and sentenced for a consolidation of offences to 1 year, 5 months and 15 days and I note that you have served the punitive aspect of the sentence that was imposed on appeal. The CCO was a 12 month therapeutic order that was breached and has now expired.
56I take into account that I will impose a significant penalty for your subsequent misconduct and I will not doubly punish you for this offence. Although your compliance with the Order was inadequate, I do not propose to cancel the Order and re-sentence you. I will, however, impose a penalty for the contravention, being 2 months' imprisonment, to be served wholly concurrently.
57There were no other orders sought, were there, in relation to forfeiture and disposal?
58MR DAVISON: No disposal order, Your Honour.
59HER HONOUR: All right, thank you. Thank you very much. I will give Mr Aslan a chance to speak with Mr Thomson and I will leave the Bench. I am not sure if there is anyone here that is a family member of friend.
60VOICE (from body of court): (Indistinct words.)
61HER HONOUR: I will let you speak to Mr Thomson about that because - - -
62VOICE: (Indistinct words.)
63HER HONOUR: - - - the sentence is finished, the plea is done. I will give you a chance to speak to Mr Thomson and also your son before you leave.
64VOICE: (Indistinct words.)
65HER HONOUR: Thank you. I will leave the Bench and Mr Thomson, if there's any issue, we can re-mention the matter but I think the plea proceeded on the basis of your client having the support of his mother.
66MR THOMSON: Yes, Your Honour.
67HER HONOUR: And that he would return to live with her and accept employment as soon as he was released.
68MR THOMSON: Yes.
69VOICE: (Indistinct words.)
70HER HONOUR: I will let you speak to Mr Thomson about that. Thanks very much, I will leave the Bench.
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