Director of Public Prosecutions v Awad

[2023] VCC 1199

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01243

CR 21-01244

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL AWAD

JACKSON PISANO

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2023
DATE OF SENTENCE:	11 July 2023
CASE MAY BE CITED AS:	DPP v Awad
MEDIUM NEUTRAL CITATION:	[2023] VCC 1199

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Aggravated burglary – intentionally cause injury – youthful offenders

Legislation Cited:  Sentencing Act 1991, s5(4C)

Cases Cited:Boulton v The Queen [2014] VSCA 342; R vMills [1998] VSC 241; Worboyes v Crown [2021] VSCA 169; Azzopardi v The Queen [2011] VSCA 372; Bradshaw v The Queen [2017] VSCA 273; Hogarth v The Queen [2012] VSCA 302

Sentence:Awad and Pisano: Convicted and ordered to serve a Community Corrections Order for a period of three years.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For Accused Awad	Ms K. Mildenhall	Stary Norton Halphen Lawyers
For Accused Pisano	Ms A. Cannon	Galbally Parker Lawyers

HIS HONOUR:

1Daniel Awad and Jackson Pisano, each of you pleaded guilty at the County Court of Victoria in Melbourne on 7 July 2023 to the following charges on Indictment No.C2014002.1:

Charge 1, aggravated burglary.  This charge has a maximum sentence of 25 years' imprisonment. 

Charge 2, intentionally cause injury to Madhav Gupta.  This charge has a maximum sentence of 10 years' imprisonment.

2Mr Awad, you have served 86 days pre-sentence detention in respect to these charges.  Mr Pisano, you have served 19 days pre-sentence detention in respect to these charges.

The circumstances of your offending

3Mr Awad, you were 18 years old at the time of the offending.  You are now 21, soon to be 22. Mr Pisano, you were 19 years old at the time of the offending and you are now 22 years old.

4The identity of the third offender is unknown.

5The prosecutor tendered a Summary of Prosecution Opening for Plea dated 7 February 2023.  The summary was Exhibit “A” on the plea.  The summary was read into the record of the court. 

6Your victim in this case, Madhav Gupta, was a 21 year old at the time of the offending and resided in Melton West with his housemate, Mr Zain.  Both Gupta and Zain are unknown to either of you.

7On the evening of 9 July 2020, Mr Gupta was at home in Melton West sitting on the couch in his loungeroom.  His housemate, Mr Zain, was in the bedroom at the back of the house watching TV.

8At round 7.30 pm Gupta answered a knock at the front door of his home.  Upon opening the door, he was confronted by a male with a black hoodie who pointed a black imitation handgun at Gupta's forehead and said to him stay back.  The male forced Mr Gupta backwards into the hallway of the house.  Two other males, one wearing a dark hoodie, and another described as having a huge build and wearing light grey track pants, then entered the house and rushed at Mr Gupta and began punching him to the head.  That is the charge of aggravated burglary.

9Mr Gupta fell to the loungeroom floor, and all three males kicked and punched him to the head and body whilst he was on the ground.  He was attempting to cover himself up.

10Mr Pisano, you hit Mr Gupta to the head with a weapon, possibly a wooden stick or a batten.  The assault on Mr Gupta lasted approximately one minute before all three of you just left the house.  Mr Gupta staggered around the house with blood coming from his head before he entered into Mr Zain's bedroom.  Mr Zain called Triple zero and picked up a cricket bat and both Mr Zain and Mr Gupta, went out the front searching for you.  Neither of you were to be anywhere seen.

11As a result of the attack Mr Gupta received a 5 centimetre laceration to the left side of his head.  It was clearly shown in the photograph which was Exhibit “B”.  Mr Gupta was transported to the Royal Melbourne Hospital by ambulance and was later discharged.  That is the charge of causing injury intentionally.

12The car you attended the property in was registered to your father, Mr Pisano.  By way of a combination of CCTV, mobile phone telephone tower tracing and warrants for telephone intercepts, the police were able to identify the two of you as the offenders in this case.  It took the police some time, but they finally tracked both of you down.

13On 2 November 2020, police executed a search warrant at your address, Mr Pisano.  Your father, Robert, was present and he called you to come to the premises.  You then went to the police station, where you were arrested and searched.  Your iPhone was found in your tracksuit pants.  The mobile number on the iPhone was the relevant telephone number.  When asked by police to provide the PIN to unlock the Apple iPhone, you refused. 

14When formally interviewed by police, Mr Pisano denied having owned or worn a pair of light grey tracksuit pants with black knee pads and stated he had never been in the Melton area, then changed his mind saying that he had been in Melton once, a couple of months before, during the day at the Woodgrove Shopping Centre. 

15Two days later, on 4 November 2020, the police came searching for you, Mr Awad.  When police arrived your brother, David, was present.  Your brother phoned you and told you to come home and approximately 15 minutes' later you arrived home and were arrested.  You were searched and no mobile phone was located on you.  You told the police that you had smashed the mobile phone.  You were transported to Melton Police Station and made a no comment record of interview, which of course is your right.

16The contested committal hearing was conducted on 27 and 28 April 2021.  On 10 June 2021 both of you were committed to trial on a number of charges.  By negotiation, between 17 August 2022 and 24 August 2022, a plea to the current charges was finalised on 1 September 2022 here at the County Court. 

Personal circumstances

17Mr Awad, I will now deal with your personal circumstances. As I said earlier, you were 18 at the time of the offending, you will turn 22 years of age in nine days' time. 

18At the time of these offences before the court you had been sentenced in the Melbourne Children's Court on two separate occasions. On 22 August 2017, you were without conviction and placed on a good behaviour bond for one year for theft of a motor car.  That matter was dismissed on 21 August 2018. On 24 June 2019, again without conviction, you were placed on a good behaviour bond for 12 months for recklessly cause injury and committing an offence whilst on bail.  Those charges were dismissed on 23 June 2020.

19At a court hearing which was subsequent to these offences, on 8 September 2021 at Sunshine Magistrates Court, for the charge of affray you were fined $800 without conviction. You have no matters outstanding and have been on bail for these charges since 28 January 2021.

20You are the middle child of three children.  You have an older brother and a younger sister.  Your life was stable until at age 10 your parents separated.  The divorce was acrimonious.  You live with your mother and siblings.  You describe your mother as devoted to looking after you and your siblings.   You have been protective of your mother.  On an occasion when you were 15 years of age, you attended your mother's drug dealer's home and asked him not to sell your mother any more drugs.  You paid him the $300 debt she owed him.

21On a late occasion when one of your mother's ex-partners attended at your home in a confrontational manner, the former partner stabbed your friend.  There was a fight.  You stabbed her former partner.  This incident became the basis for your court appearance on 24 June 2019.

22You were educated to Year 11.  You were finally expelled from school due to your class clown attitude at school.  The five high schools that were your education followed a background of four separate primary schools. 

23You had not worked prior to your remand period.  Upon your release you initially worked as a concrete polisher.  You later then commenced as an apprenticed electrician.  You have worked as an apprenticed electrician for two separate companies.  At present you are currently in the third year of your apprenticeship with Excelcom.  You have been there for approximately one year.  Mr Wade Cost from Excelcom speaks positively about your work, general lifestyle, and attitude.  That is in Exhibit “A7”.

24On 26 January 2023 you were assaulted and severely injured.  You spent 11 days in the Alfred Hospital.  That is Exhibit “A4”.  You had a Glasgow Coma Score of three at the scene of your assault.  You had bleeding on the brain and have been diagnosed effectively with an acquired brain injury by Martin Jackson, a clinical neuropsychologist.  That is Exhibit “A3”.  Mr Jackson diagnose a severe traumatic brain injury due to the assault.

25You receive community-based rehabilitation for your head injury at Western Health from 7 March 2023 and onwards, after you were released from the Alfred to the present time.  You also have clinical psychologist support which was funded by VOCAT.

26Prior to your assault on 26 January 2023, you were assessed by Simon Candlish, psychologist, for the purpose of this court proceeding.  His report is dated 17 October 2023 and it was Exhibit “A2”.  You were assessed as a moderate to low risk of violent offending in the future.  In Mr Candlish's opinion he assessed you as experiencing symptoms of persistent depressive disorder at the time of your offending. 

27After your hospitalisation for your injuries and as a consequence of the assault on 26 January 2023, you were assessed by Martin Jackson.  His report is dated 1 May 2023. Mr Jackson's opinion is that you sustained severe traumatic brain injury with a mild to moderate cognitive impairment as a result.  Mr Jackson's opinion is that your cognitive impairment will improve over the next 18 months to two years.  I think it is fair to say he was surprised at how well you managed after such an injury.

28You currently live with your father and younger sister.  You were working fulltime as an electrical apprentice.  You have managed to get back to work since the severe assault upon you on Australia Day this year.

29Mr Pisano, your personal circumstances are as follows.

30At the time of the offending, you were 19 years old.  You had no prior criminal history.  You are now 22. You are the only child of your parents.  Both of your parents had mental health issues when you were growing up.  You tried to referee between your parents as there were family law proceedings between them.  You lived with your mother until the age of 14.  You then moved to live with your father and your paternal grandparents.  Your father re-partnered with your stepmother, Marie, who had two sons of her own. 

31You were assessed by Patrick Newton, forensic psychologist, for the purpose of this case.  His report was dated 14 February 2023 and was Exhibit “P2”.

32He has diagnosed you as suffering from adjustment disorder with anxiety.  He has assessed you as below average intelligence and proffered the opinion that a custodial disposition would increase your level of anxiety.

33Your education concluded at Years 10 and 11 at Harvester Technical College where you started a plumbing apprenticeship.  You did not go on with that.  You then left school and worked as a fencing contractor for a period of two years.  That employment ceased when the Covid 19 restrictions were imposed. 

34After your release from custody in November 2020, you obtained employment as a labourer and now work as a concreter.  You have maintained full employment since your release from custody. 

35You now live with your mother and your long-term partner, Kaitlin Talevski.  You worked in the same company as Kaitlin's father at Symbal Infrastructure as a concreter.  Your relationship is stable and a good sign of your rehabilitation as it is progressing.

36You have been receiving treatment for anxiety and depression from your general practitioner, Dr Cesar Tran.  That was Exhibit “P4”.  You have been diagnosed with PTSD arising from the assaults committed against you.

37You have been assaulted before your offending on 25 May 2018 and again after your offending on 4 December 2021.  You have had two appearances at court since these offences.  The matters were dealt with by fine.  You have not offended by the use of violence and are described by all of your referees as a caring and responsive person to the needs of others.  I find that to send you back to prison would be a retrograde step for you and the community of which you are part.

Sentencing considerations

38This applies to both of you.

39The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. 

40I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community and seeking to ensure, as far as possible, that you as offenders are rehabilitated and reintegrated into society. 

41I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your cases, as indeed they are from one another.  Of course, current sentencing practices is only one of the factors I have to take into account.

42I am also mindful of the provisions of the Sentencing Act and in particular s5(4C), which directs a sentencing court to consider whether a Community Corrections Order can achieve the purpose for which the sentence is to be imposed.

43I have reviewed the case of Bolton in considering if a Community Corrections Order would be appropriate in your case, and as you know, I have had you both assessed for a Community Corrections Order.  You have both been assessed as being suitable.  That is not the end of the matter.

44Each of you have pleaded guilty to these charges.  Your plea of guilty was indicated in September 2022.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your pleas allow for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.

45Your pleas are also a clear acknowledgement by you both that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on both your parts. 

46Your pleas of guilty have avoided the necessity of your victim, Mr Gupta, and others giving evidence in a trial.

47Your plea has a further utilitarian value because your plea has been given during a time of the backlog of trials due to the Covid 19 pandemic and both of you have been on bail in that time.  You have not sought to delay the finalisation of these charges by conducting the trial at some indeterminate date in the future.  The Worboyes discount, as it is known, a significant amelioration of sentence has application in this sentencing process for the both of you.

48In addition, it is relevant to take into account the impact of the lockdown restrictions that had been imposed as a result of the Covid 19 pandemic and were applicable to each of you and indeed other prisoners in Victoria whilst both of you were on remand in custody.  As a result of those restrictions, you did not have an opportunity to have contact visits from your family and you would have had lockdown restrictions.  That would have been particularly onerous for you as you were both young and for both of you it was your first time in custody.

49In this case there has been a delay of three years between the commission of the offences and the imposition of sentence.  The delay is not entirely attributable by the both of you.  The period of delay has given you the opportunity to engage in rehabilitation.

50In respect of you, Mr Awad, you have taken on an electrical apprenticeship and have advanced to the third year of a four year qualification. In relation to you, Mr Pisano, you obtained work as a labourer and then concreter with the Pelligra Group initially until March of this year.  You then moved to work in the same nature to the Symal Group.  You work with your father and your girlfriend's father on a fulltime basis. 

51The fact that you both have engaged in an effective and sustained process of rehabilitation during the lengthy period on bail, having remained in the community without further offending, is an important mitigatory factor in sentencing you both.

52In respect to both of you, you have had these charges hanging over your head which has had the effect of an additional punishment on you.  In your case, of course, Mr Pisano, you have no prior convictions or court appearances.

53It is a principle of sentencing law that when a young offender such as both of you is to be sentenced, the sentencing disposition should be tailored, taking into account all of the other sentencing considerations, to promote your rehabilitation.  This approach serves the interests of the individual offender, that is both of you, and the community as a whole.

54In the case of R v Mills which is reported at [1998] 4 VR 235, three propositions of sentencing were set out:

(1) Youth of an offender, particularly a first offender, which is you, Mr Pisano, not you, Mr Awad, should be a primary consideration for the sentencing court where that matter properly arises. 

(2) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending, thus, for example, individualised treatment focusing on the rehabilitation is to be preferred.  In effect, rehabilitation benefits the community as well as the offender; and

(3) A youthful offender is not to be sent to adult prison, if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. 

55The benchmark of what is serious in justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated, a shorter term of imprisonment may be justified. This proposition is particularly applicable of the general principles of sentencing set out in s5 of the Sentencing Act.

56The Mills case has been considered a number of times by the Court of Appeal in Victoria and has dealt with the ongoing considerations in relation to youth.

57In cases of violence, calls for general deterrent considerations.  These issues were considered in Azzopardi by Redlich JA with whom Coghlan and Macaulay AJJAs agreed and said as follows:

'The general proposition which flows from these authorities, where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community, to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the seriousness of the criminality increases there is a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.'

58The charge of aggravated burglary has a maximum sentence of 25 years' imprisonment.  The Court of Appeal in Hogarth's case clearly set out that in aggravated burglaries that are properly described as confrontational aggravated burglaries, require the imposition of a custodial sentence.

59The circumstances of this offence of aggravated burglary are serious, as indicated by the following factors: 

(1) It was a home invasion committed in the early evening in the middle of winter.

(2) Each of you were one of three offenders, that is, you offended in company.

(3) Whilst there is no evidence you knew of the weapons before the entry to the premises, clearly weapons were used once you were inside the premises.

(4) You knew that a person or persons would be present when you entered the premises.

(5) The motive is unknown, but the inference is that there was a genuine grievance between your victim and perhaps the third unidentified person.

(6) The offending was all over in approximately one minute.

(7) The victim was left injured, and as I said earlier, photographs in Exhibit “B” clearly set it out, the injury required stitches to his scalp.

(8) The victim and his friend did go looking for you after you had left the premises; and

(9) The assault charge involved punching, kicking and being struck with a stick.

60The prosecutor and defence counsel relied on the authority of Bradshaw v The Queen [2017] VSCA 273 to submit that a CCO would be imposed for an aggravated burglary in an exceptional case. The prosecution's submission was that a combination of imprisonment and a CCO would be in the range for this offence.

61I assess your prospects of rehabilitation as good, that is for both of you. In your case, Mr Awad, you have engaged in an apprenticeship and worked fulltime in that capacity.  In your case, Mr Pisano, you have commenced and remained employed both as a labourer and a concreter for the whole period, working fulltime.  You have moved away from the negative peer group that you once both resided in.

62In your case, Mr Awad, you live with your father, you enjoy positive family support from your parents and your two siblings.  Your own experience of being a victim of a serious assault has no doubt assisted you in understanding the impact of your offending on Mr Gupta.  I accept that you are genuinely remorseful for this offending.

63In your case, Mr Pisano, you live with your mother and your girlfriend.  Further, you have also been assaulted and I have no doubt that experience has sharpened your appreciation of the effect of your offending against Mr Gupta.  I accept that you are genuinely remorseful for your offending on that occasion.

64I find that the factors around this sentencing process are exceptional. 

65The principles of general and specific deterrence, denunciation of your actions, the protection of the community, rehabilitation and just punishment are satisfied by a sentence imposed as follows:

66Will you both stand please.

67Mr Awad, on Charge 1 you are convicted and ordered to serve a Community Corrections Order for a period of three years, commencing today.  The conditions of that Community Corrections Order are as follows: 

(1) You are to be supervised. 

(2) You are to do 250 hours of unpaid community work.

(3) You are to undertake mental health assessment, treatment, and rehabilitation.

(4) You are to engage in offender reduction programs; and

(5) A judicial monitoring for you is on 20 October 2023 at 9.30 am here at the County Court. 

68If you agree to that then I will have that order made.

69In relation to Charge 2, that is a charge of causing injury intentionally.  You are convicted and sentenced to 86 days' imprisonment.  I declare you have served 86 days' imprisonment.  Your term of imprisonment for Charge 2 is greater than the sentence of your co-accused, Mr Pisano.  You had previous court appearances for violence to the person and the difference in sentence reflects that fact.

70Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years.

71Mr Pisano, you are sentenced as follows:  in relation to Charge 1, you are convicted and ordered to serve a Community Corrections Order for a period of three years.  The conditions of that order are as follows:

(1) You are to be supervised.

(2) You are to do 300 hours unpaid community work.

(3) You are to undertake mental health treatment and rehabilitation assessment.

(4) You are to attend offender reduction programs; and

(5) A judicial monitoring is to occur on 21 October 2023 at 9.30 am.

72Your unpaid hours of work are greater than your co-accused.  The background to this offending is that you were, as I understand the reading of these summaries, the conduit that involved your co-accused.  The grievance behind the offending was initiated through your general family connections.

73In respect to Charge 2, you are convicted and sentenced to 19 days' imprisonment.  I declare you have served 19 days of pre-sentence detention. 

74Again, but for your plea of guilty, s6AAA of the Sentencing Act, I would have sentenced you to three years with a two year non-parole period.

75Mr Pisano, you are to report at the Melton Community Correction Services at 2A Barries Road in Melton within two clear working days.  And, Mr Awad, you are to report at the Sunshine Community Correctional Services at Sunshine Court complex, which is in Ballarat Road in Sunshine, within to clear working days.

76I will have these two Corrections Orders handed to counsel; you can attend.  If your clients agree, they can sign it.

77MS CANNON:  Can I have my instructor attend?

78HIS HONOUR:  Certainly, sorry.

79MS CANNON:  Thank you, Your Honour.  Does that cover everything, Mr Prosecutor?

80MR GRAY:  It does, Your Honour.

81HIS HONOUR:  Thank you.  Mr Awad and Mr Pisano, I have just had copies of the Corrections Orders handed to both your counsel. You both will get a copy to stick it up on the inside of your wardrobe door so that every day when you open it to get dressed you will have a reminder of what your obligations are under that order.

82What I want to warn you about is this:  do not for a second think standing up there that you have got away with this one on a sliding door basis.  What you have is three years of a Community Corrections Order hanging over your head, and in case you are in any doubt about what is going on here, the charge that the CCO relates to has a maximum sentence of 25 years.  The one you got the gaol time on had a maximum sentence of 10 years.  So, if you breach this CCO, as they say in other places, you do the math.  Are you both clear about that?  Good.

83Counsel, before I forget, thank you to each and every one of you for your assistance in this case, it was great assistance to me which I thank you.

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