Director of Public Prosecutions v Awow

[2022] VCC 1353

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00512

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULFATAH OMAR AWOW

---

JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2022
DATE OF SENTENCE:	23 August 2022
CASE MAY BE CITED AS:	DPP v Awow
MEDIUM NEUTRAL CITATION:	[2022] VCC 1353

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              one charge aggravated burglary – one charge attempt to procure sexual act by threat – entry to victim’s home by fraudulent means – guise of conducting COVID-19 quarantine inspection – gross breach of trust – preplanning – no use of violence - purporting to be Department of Health inspector – plea of guilty

Legislation Cited:      Crimes Act 1958; Bail Act 1977; Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269; DPP v Alsop (2010) VSCA 325; DPP v Meyers (2014) 44 VR 486; Worboyes v The Queen [2021] VSCA 169

Sentence:                  3 years and 6 months imprisonment with a non-parole period of 2 years

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S Clancy	Office of Public Prosecutions
For the Accused	Mr D Hancock	Starnet Legal Pty Ltd

HER HONOUR:

1Abdulfatah Omar Awow, you have pleaded guilty to:

·one charge of aggravated burglary contrary to s 77(1) of the Crimes Act 1958 which attracts a maximum penalty of 25 years imprisonment; and

·one charge of attempted procuring sexual act by threat, contrary to ss 321M and 44(1) of the Crimes Act 1958 which attracts a maximum penalty of five years imprisonment.

2You have also pleaded guilty to two summary charges namely, contravene conduct condition of bail, contrary to s 30A of the Bail Act 1977 (charge 10), and commit indictable offence whilst on bail (charge 13), contrary to s 30B of the Bail Act 1977. For each of these summary offences, the maximum penalty applicable is 30 penalty units or 3 months imprisonment.

Circumstances of Offending

3A detailed summary of facts was tendered on the plea. On 3 June 2021 you commenced casual employment with a business that was contracted by the Victorian Department of Health to provide call centre services in response to the COVID-19 pandemic. In the course of your employment you were trained to service incoming and outgoing calls in relation to vaccination bookings. You were also trained to assist with COVID-19 contact tracing. By virtue of this position, you had access to personal details of people who were isolating in Victoria. Your role included liaising with those people in relation to their welfare. As part of your employment, you were required to complete a police check and you signed a confidentiality deed in which you undertook not to communicate, publish, or release any confidential information.

4On 14 July 2021, in the course of your employment, you contacted the victim, Katherine Walker[1]. Ms Walker had returned to Victoria four days earlier, after travelling to Sydney to visit her sister. She had obtained a red zone permit and was isolating at home in accordance with the directions of the Department of Health. Ms Walker had been in regular contact with the Department after her return to Victoria. Ms Walker was 31 years of age, held a student Visa and resided in a share house in Burwood.

[1] A pseudonym.

5You contacted Ms Walker by telephone at 6:37pm as part of the routine contact to those isolating at home. You confirmed with Ms Walker that she was isolating and asked her which suburbs she had visited when she was in New South Wales. You informed her that she may receive further phone calls from the Department of Health. For some inexplicable reason, you then took a photograph of Ms Walker’s personal details which were displayed on your work computer screen, with your mobile phone.

6Later that evening after you had finished your shift, at approximately 8:45pm you contacted the victim again using your personal mobile phone. This call was made from Carlton, the suburb in which you resided. This contact was completely outside the scope of your employment. During the phone call you purported to be an Inspector from the Department of Health. You asked Ms Walker if she had been isolating and you told her that the quarantine was illegal, as she was not isolating alone at her address.

7You told the victim that you knew her name, mobile number, email address, home address, isolation status, and that she held a student Visa. You told her that there had been a change in government policy as a result of the increase in cases in Victoria on that date. Ms Walker advised that she had her own room at the address but you told her that you would need to come and check her room. You told the victim that you would call again when you arrived.

8At 9:20pm, you phoned Ms Walker again and informed her that you were outside her Burwood address and requested that she come to the front door. Ms Walker met you at the door and allowed you to enter the house, believing that you were an Inspector from the Department of Health performing an inspection of her home. She did not ask you for any identification. By your plea of guilty, you accept that your intention upon entry was to threaten the complainant to take part in sexual acts with you. (Charge 1: aggravated burglary)

9Once inside, you showed Ms Walker a photograph on your mobile phone depicting a computer monitor that displayed her personal details. You walked around her home making written notes and taking photographs on your mobile phone. You asked to see her bedroom and removed your shoes as per her request. Continuing with the subterfuge, you took photographs of her bedroom on your phone. As you purported to “inspect” the house, you told Ms Walker that she was not complying with the isolation requirements and that she could get into a lot of trouble. You told her that if she made you “happy”, you would lie to protect her so she would not be deported. Ms Walker told you that she was a permanent resident and was becoming an Australian citizen the following week.

10The victim requested to call her boyfriend as she considered that he knew more about the law than she did, but you told her not to call him. As it happened, Ms Walker’s boyfriend called her at that time and she answered. She asked you to speak to her boyfriend and you continued the facade, informing him that you were from the Department of Health and that his girlfriend was not complying with the isolation requirements.

11After the phone call you told Ms Walker that no one could help her and that she needed to make a decision. You asked her to give you a “blow job” and she said ‘no’. You then asked her for a “hand job” and again the victim said ‘no’. Both of these requests comprise Charge 2: attempted procuring sexual act by threat. You did not raise your voice nor were you aggressive.

12At this point, one of the victim’s housemates came out of his room and looked at you. You told Ms Walker to close the door to her bedroom. She said ‘no’ and asked you to leave. Continuing to try to exert pressure on her, you told Ms Walker that other girls you had checked on, had cooperated with your requests to avoid breaching the law.

13You asked the victim to open a translator app on her phone into which you typed a sentence in English that was translated into her native language, before handing the phone back to her. The victim read the message in which you said, in effect, “You make me happy and I will lie for you and no one needs to know and you will be protected”. Ms Walker understood that this meant you wanted her to perform a sex act on you, and in return you would lie for her. The victim took a screenshot of that message. You continued to make comments to her including “This is your decision” and, “You have to think carefully”. Ms Walker felt you were pressuring her to perform a sex act on you and that if she did not comply, you would report her to the government.

14You eventually decided to leave and as you did so, the victim took a photograph of you with her mobile phone. She then went upstairs and told her housemate what had happened. You called Ms Walker’s mobile phone five times after you left, but she did not answer. Ms Walker subsequently spoke to her boyfriend who notified police.

15That night the victim was too scared to stay at home, as she was frightened you would return and look through her bedroom window. She eventually took an uber to a city hotel and stayed there for a number of nights before flying to Sydney. Apart from returning to collect some belongings before her flight, Ms Walker was unable to return to her home as she feared you would return. She has since relocated interstate.

16At the time of this offending you were on bail, which you entered into on 2 March 2021. (Related summary offence charge 13: commit indictable offence on bail). One of the conditions of your bail included that you were to reside at a specified address in Carlton and a curfew was in place between 10:00pm and 6:00am. On 6 August 2021 police attended at your address with a search warrant. You were not home but your family was present and a search was conducted. Victoria Police again returned on 9 August 2021 at 5:30am. You were not present and your family advised that you did not reside at the address. (Related summary offence charge 10: contravene conduct condition of bail).

17Eventually you attended the Brunswick Police Station by arrangement on 12 August 2021 and you were arrested. You gave a no comment record of interview to police.

18You have since given an account of your behaviour to forensic psychologist Carla Ferrari. In that account, you told Ms Ferrari that during your outgoing call to the victim regarding contact tracing, you identified that she was not complying with the mandates. You stated that you were unaware of how much power or authority you had in your role and took it upon yourself to attend her home where she lived with four or five other housemates, as she did not speak English well. You told Ms Ferrari that you had attended her home to explain to Ms Walker that she was in breach of quarantine orders. You now apparently now accept that this was outside of your role and duties particularly to attend after a shift. I will say more about that in a moment.

Victim impact

19A Victim Impact Statement was prepared by Ms Walker (Exhibit B). This offending has had a profound impact upon her, and as a consequence, she has developed Post-Traumatic Stress Disorder. She feels very insecure, so much so that she had to move away from Melbourne (her home for 9 years) to another state, where she found it difficult to find a new job. Ms Walker is scared of being alone, she is scared of walking on the street, frequently becomes tearful, has trouble sleeping and wakes up with nightmares. She has sought psychiatric assistance for her pain and stress, which she describes as “the shadow of a lifetime”.

Procedural History

20You were arrested on 12 August 2021 and remanded in custody. The matter proceeded to a contested committal hearing in the Magistrates Court but resolved prior to any witnesses being called, on 31 March 2022.

Prior Criminal History

21At the time of this offending, you were 25 years of age. You have admitted a prior criminal history. You first came into contact with police when you were 19 years old. You were charged with using a carriage service to menace for which you were convicted and placed on a Community Correction Order for 18 months on 20 February 2018. You breached this order by non-compliance and you were later fined. You did not complete the Community Correction Order.

22The prior conviction relates to an incident whereby you allowed a friend to use your phone to log into her Facebook account. When she returned the phone, she had not logged herself out. You then sent that friend photographs of herself with the caption ‘look what I found- these photos may end up somewhere else’.

23Whilst this is very different offending, there is some degree of similarity in that you accessed another individual’s private material to which you had become privy, and then endeavoured to use that material in some sort of coercive or exploitative way.

Personal Circumstances

24A comprehensive outline of plea submissions was filed on your behalf, and these submissions were supplemented during the course of the hearing by your counsel Mr Hancock.

25You are now 26 years of age. You were born in Mogadishu, Somalia in 1996. At the age of about 3 years, you went to Kenya with your mother and siblings as refugees, before moving to Egypt where you lived until you were seven or eight years old. Your father, who was already in Australia, was able to bring you and your mother and siblings to join him when you were eight. You have two younger sisters who are in high school. You reported to a Community Correction Officer during an assessment that you help with the care of your siblings. This was not raised during the plea.  You have a good relationship with your parents with whom you live. Your father works as a taxi driver and has always been the source of financial support for your family.

26You attended Princess Hill Primary and then Secondary Schools in Carlton. You completed year 11, but your grades suffered when you pursued your dream of playing soccer. You were good at soccer and played for Northcote City in your mid-teens. During this time, you worked at McDonalds. You attempted to study year 12 at RMIT in 2014, but did not complete those studies, focusing instead on some short courses.

27Your mental health was purportedly uneventful until 2018, when you became deeply depressed and were prescribed medication proximate to your first criminal proceedings. You began using drugs to cope with anxiety and panic attacks that you were experiencing. You attribute much of your anxiety and then drug use to the fact that you were charged with criminal offending. You were mixing cocaine with benzodiazepines. You reportedly ceased using drugs in May 2021 in anticipation of your sister’s wedding in July that year.

28Whilst in custody you have completed one alcohol and drugs program - which was the only course available due to COVID-19 restrictions.

29According to character references tendered on your behalf, you have been an active member of your community and made a considerable contribution to local charities. Tendered on your plea were a number of character references from long-term friends and associates. These referees also speak of their shock at hearing about your offending. Mr Abdi Ali[2] who has known you for 8 years, speaks of your involvement in volunteering at community events, and your support for community programs. He describes you as selfless and willing to assist others.[3] Ahmed Dini has described in glowing terms, your work with the Australian Somali Football Association and other football initiatives with young players. Both Abdalla Okud[4] and Salah Musa[5] describe your volunteer work putting together a community festival in Carlton in 2014, your work with the Multicultural Youth Organisation and more recently to assist in developing youth programs to help struggling young males. Bahdon Robleh,[6] an Imam at Pillars of Guidance Community Centre, attests to your contribution to the community and describes you as an honourable individual. You have clearly made a contribution to your local community, and have the support of many within your community.

[2] Exhibit 7

[3] Exhibit 3

[4] Exhibit 4

[5] Exhibit 5

[6] Exhibit 6

Mental health

30Tendered on your plea was a report by psychologist Carla Ferrari dated 11 August 2022 (Exhibit 2). According to Ms Ferrari, you meet the criteria for Adjustment Disorder with depressed mood, Generalised Anxiety Disorder with panic attacks, Stimulant use Disorder, and Sedative, Hypnotic Anxiolytic Use Disorder - the two latter disorders now in sustained remission since you have been in custody.

31Ms Ferrari considers that your negative state could impair your impulse control and decision making, and that your substance use leads to reduced self-inhibition and cognitive and behavioural self-control, which can manifest as impulsive, reckless, disinhibited behaviour, poor decision making, and poor judgment.  Your counsel, Mr Hancock does not submit that these mental states were such as to reduce your moral culpability as established in R v Verdins[7], particularly he submits, given the role that your drug use seems to have played in your offending. However it is a little unclear whether, or to what extent you were in fact using drugs at the time you committed these offences. You told Ms Ferrari that you ceased drug use in May the same year, in anticipation of a family wedding. I note there is also no material which supports the assertion that you were struggling with mental health issues at the time of this offending other than the report that you were prescribed medication. But in terms of proving a context to your offending, I take it into account.

[7] (2007) 16 VR 269

32It is submitted by Mr Hancock that limbs 5 and 6 of Verdins are enlivened as you are considered by Ms Ferrari to be a vulnerable individual upon whom imprisonment would weigh more heavily and there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. The prosecution did not take issue with this submission. I note however, from the report of Senior Psychiatric Nurse Hannah Child, who conducted a Mental Health Advice and Response Service assessment on 18 August 2022, that you have reported that your anxiety has resolved with the cessation of substance abuse. You told Ms Childs that you believe your cocaine use was responsible for your anxiety. So, the extent of your mental health issues is still a little unclear. Nevertheless, having regard to Ms Ferrari’s opinion, I take these matters into account with respect to those two limbs of Verdins and give them moderate weight.

33I also accept that your time in custody has likely been more difficult as a consequence of the pandemic, although there were no direct submissions as to the direct impact it had upon you. I accept there has been a reduction in contact visits, courses available and those incarcerated had to undergo a period of quarantine.

Nature and gravity of offending

34Aggravated burglary is a serious offence, as is reflected in the applicable maximum penalty, to which I have had regard. As Redlich JA said in DPP v Alsop[8], the effect on victims of aggravated burglary should not be underestimated. As his Honour noted at [26]:

Regard must also be had to Parliament's intention, evidenced by the very high statutory maximum fixed, that the crime of aggravated burglary should be viewed as a very serious offence. It is incumbent upon this Court to ensure the maintenance of appropriate sentencing standards in this State for crimes such as these which destroy people's domestic security and erode their capacity to feel safe in their own homes.

[8] (2010) VSCA 325 [26]

35In the Director of Public Prosecutions v Meyers,[9] the Court of Appeal identified a number of considerations which would ordinarily be relevant to the assessment of the seriousness of the offence. The method of entry, whilst not involving violence, nor the use of a weapon or damage to property, is nonetheless relevant. You obtained entry into Ms Walker’s home by fraudulent means, using the victim’s personal details to gain her trust. You acquired these details in the course of your employment. In my view this elevates the offending. You knew that the victim was home, and was supposedly isolating as she told you she was. You attended at 9:20pm at night under the guise of conducting an inspection. Your intention upon entry was to assault the victim by way of procuring a sexual act from her by fraudulent means.

[9] (2014) 44 VR 486 (“Meyers”)

36Mr Awow, I regard your offending as very serious. Your counsel has submitted that the aggravated burglary in this case falls toward the lower end for this kind of offending. I do not agree. I accept that this this offending does not have the hallmarks of a more ‘conventional’ aggravated burglary, if there is such a thing, and is absent some of the more aggravating features as identified in Meyers. You entered alone and you did not know your victim other than speaking with her on the phone.

37However, you took advantage of the position that you were in, to access the victim’s personal details. This amounts to a gross breach of trust placed in you by your employer, who was contracted to the Department of Health. Within this role you were privy to personal information provided by the public who were entitled to believe that in doing so, their private details would not be misused.

38At the time of this offending there were heightened concerns regarding COVID-19. There was a public awareness of the need to comply with obligations regarding reporting of those who may have been exposed to the disease. Ms Walker having returned from interstate and in compliance with her obligations, had registered with the Department of Health that she had been in a red zone. In doing so she, like anyone else, was entitled to expect that her personal information would not be misused by a telephone operator to later pay a visit to her home.

39Your offending involved a degree of preplanning. You photographed Ms Walker’s details whilst you were speaking with her during the course of your employment and at the conclusion of your shift, over 2 hours later, you targeted her by telephoning her from Carlton. In purporting to be an inspector from the Department of Health, you revealed that you knew her personal contact details, claiming you needed to inspect her home as part of that role.  Approximately 40 minutes later, having travelled from Carlton to Burwood you attended Ms Walker’s home and continued this predatory behaviour, by carrying out your entry into her home. You had ample opportunity during this period of time whilst you travelled to her home, to reflect and decide not to go through with this charade. But, in doing so, you preyed upon a vulnerable young woman, who was in Australia on a student visa, and who was evidently concerned to ensure adherence to her public health obligations. 

40Under the pretext of being an inspector you were permitted entry by the complainant and did so with the intention of threatening her to take part in sexual acts. By your plea of guilty you accept that this was your intention upon entering into her home. True it is, you carried no weapon, nor did you gain entry by force, or behave violently, but rather, you exploited her preparedness to trust you and the power you purported to wield. Ms Walker would understandably have felt alarmed at the prospect that she may have engaged in some form of wrongdoing, given her visa status.

41Furthermore your conduct once you had gained entry was most unsavoury. Your actions within Ms Walker’s house, taking photographs, and asking to see her bedroom were designed to perpetuate the idea that you with there on some sort of authority and that she had done the wrong thing. Under the ruse of being an inspector with the Department of Health, you led Ms Walker to believe that she could get into a lot of trouble, but that you would be prepared to lie to protect her so as to ensure she would not be deported as long as she made you happy.

42You even maintained this subterfuge with her boyfriend when he called. Now, you are not to be sentenced on the aggravated burglary for your conduct once inside Ms Walker’s house. Instead your attempts to procure sexual acts in two instances are the subject of a separate charge. Even when Ms Walker’s flatmate came out of his room, you instructed her to close her bedroom door claiming that other girls you had checked on had cooperated with your requests to avoid breaching the law. The prosecution does not submit that you did engage in such activity, and nor is this is said to be a circumstance of aggravation – and I will not sentence you as such. Rather the prosecution submits that these comments rebut any suggestion that you believed that you were acting with some sort of authority as you claimed to psychologist Carla Ferrari. As Ms Clancy submits, this was not a momentary ruse.

43Ms Walker was entitled to feel safe in the sanctity of her own home. In conducting yourself in this way, you have violated that sense of safety. The attempt to procure sexual act is serious having regard to the context in which it was carried out. However, I accept that it did not involve the use of violence or aggression, and you did not attempt to touch the victim. Rather, as I have said, your threat was implicit in the power you purported to wield over her future.

44As I’ve already noted, you told Ms Ferrari that you were unaware of how much power or authority you had in your role, and so you took it upon yourself to attend her home in order to explain to Ms Walker that she was in breach of quarantine orders. Further, that you now accept that this was outside of your role. I have to say I find your attempts to excuse your behaviour quite implausible. The notion that you were required to take it upon yourself to make a personal call to the home of an individual who was isolating (and in relation to whom there is no evidence that she was in breach of quarantine orders), that you did so after hours, and outside of your work hours, in order to explain to her that she was supposedly in breach, is in my view, disingenuous. This is reinforced by your conduct once inside her home and your comments about other women who have co-operated.

45There can be little doubt in my view that you were aware, at the time you did these things, that they were well and truly beyond the scope of your role and powers. Rather they reflect on your intention to take advantage of a vulnerable woman.

Plea of guilty

46I take into account your plea of guilty. This was a relatively early plea, and I note that at no point were any witnesses cross-examined. By pleading guilty you have spared Ms Walker from having to relive the experience by giving evidence. Your plea of guilty is of significant utilitarian value and demonstrates a willingness to facilitate the course of justice. I accept that as a result of your plea, time and resources have been spared. It is also some evidence of remorse.

47Your guilty plea has an additional utilitarian value given that it was entered during the COVID-19 pandemic, where the court faces a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[10] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. As a consequence, you are entitled to a substantial discount in sentence both for the plea itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.

[10] [2021] VSCA 169

48You have been in custody since your arrest on 12 August 2021. I accept that your time in custody has been difficult given that you have been on remand during the COVID-19 pandemic, and conditions have been somewhat more restricted.

Remorse

49According to Ms Ferrari, you are remorseful for your conduct. I note that there is very little, if any reference to such remorse in any of the character references.

50I am somewhat troubled by your apparent efforts to minimise your wrongdoing. Your explanations to Ms Ferrari suggest an attempt to justify your behaviour, despite your expressions of remorse. However, you were purportedly able to recognise that your behaviour was an abuse of your position, and that attending the victim’s home under the guise of an authority, would have been confronting to her.

51Ultimately you have pleaded guilty to this offending, thus suggesting that you are remorseful and I accept that you now regret your conduct and have some appreciation as to the impact this must have had on the victim.

Prospects of rehabilitation

52Ms Ferrari has assessed you as being a moderate risk of recidivism in general. She notes you have a limited prior history, though there are relevant priors and an escalation in offending behaviour. In her view, your offending does not appear due to a criminal belief system, but rather a deterioration in your mental health after your first offence and the subsequent use of substances as a coping mechanism. In Ms Ferrari’s view, you present as a low risk of any sexually-based offending in the future with a caveat that the use of substances increases impulsivity and disinhibition, making you more likely to engage in criminal misconduct if you relapse in the future. You continue to remain untreated for your Generalised Anxiety Disorder and should you continue to associate with antisocial peers and abuse substances then in her view your general risk of recidivism will remain moderate.

53Ms Ferrari recommends that you engage specifically with a psychologist with forensic experience for offence specific intervention to address your identified criminogenic risk factors. She recommends that you obtain a mental health treatment plan to address your depression and panic symptoms and to develop strategies to manage these and mitigate their influence on your functioning. Ms Ferrari also considers that employment is imperative to your rehabilitation so as to alleviate boredom or idle time in which you could return to substance use.

54As part of an assessment for suitability for a Community Correction Order, you were assessed as a moderate risk of re-offending by Sinead Harris.

55Accordingly, it seems that you have reasonable prospects of rehabilitation as long as you abstain from drugs. It will also be important for you to find employment. Your counsel submits that will have employment available to you, working in a warehouse. You are fortunate to have the support of your family and members of the community. With those supports in place, confidence in your ability to rehabilitate increases.

Relevant sentencing factors

56I am required, pursuant to the Sentencing Act 1991 to take into account various factors when formulating an appropriate sentence in your case. The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances.

57I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society. I do indeed denounce your conduct.

General and specific deterrence

58General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that such serious criminal offending will attract significant punishment, particularly offences which come about as a consequence of individuals abusing their access to personal details in the course of their employment. The sentence I impose must deter others who might be inclined to commit an offence of this type by gaining entry to an individual’s home by fraudulent means. Moreover, I am of the view that, in your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history.

59Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.

Regard to current sentencing practices

60Although this is but one of the factors for consideration, I am ordinarily required to take into account current sentencing practices. Sentences for this offending are of less value here given the unusual nature, and neither the prosecution, nor your counsel have submitted that there are any cases which are comparable to this offending.

Totality

61I must take into account that whilst you are pleading guilty to two indictable offences, that are separate and distinct in nature, there is some degree of overlap given that the offences took place during the same event. I have had regard to the principles of totality, which requires that I must ensure that the overall sentence is just and proportionate.

Sentencing submissions

62Your counsel has submitted that the time you have spent in custody, now 376 days is adequate and no further sentence is warranted. I cannot agree. Nor do I agree with the submission that these charges are at the lesser end of the scale of seriousness. For the reasons I have set out, I regard this offending as serious. It calls for substantial punishment.

63The prosecution submits that a combination sentence is open, and during the plea, Ms Clancy clarified the submission that a further period of imprisonment in combination with a Community Correction Order would be within range. To that end, I have had you assessed for a Community Correction Order. When I agreed to have you assessed, I made it clear that I had not made up my mind as to whether this was necessarily appropriate here. Whilst you have been assessed as suitable, the report leaves me with even more reservations about the appropriateness of such an order. You initially expressed some concerns over performing unpaid community work given your desire to commence employment, but you have indicated a preparedness to do so. However, there remains a degree of uncertainty as to the extent to which you do indeed require any mental health treatment.

64Ultimately, the fact that the prosecution submitted that a combination sentence is open does not mean that I am obliged to impose a sentence of this type. I have given this matter careful consideration. I do not consider that time served is adequate. Moreover I am not convinced that a combination sentence, that is one which involves a Community Correction Order in combination with a jail sentence is appropriate here. I am conscious that with time already served, I have the ability to sentence you to up to an additional 12 months in custody, and then impose a Community Correction Order.

65I have considered all of the material in this matter, as I have already outlined, and the Community Correction Order assessment itself. However, I am of the view that nothing but a head sentence with a non-parole period, will be sufficient having regard to all of the circumstances of this case. In my view, the offending is too serious, your explanation and attempts to justify your offending are concerning, and there remains uncertainty as to whether you are currently experiencing any mental health issues which a Community Correction  Order may be able to address. You have previously shown disregard for a Community Correction Order. I consider that the need for general deterrence, just punishment and the court’s denunciation is too great, even balancing your personal circumstances, your plea of guilty and the community’s desirability of seeing you rehabilitated. In my view, only a head sentence with a non-parole period would adequately address all sentencing considerations enlivened in the circumstances of this case and reflect the gravity of this offending.

66Accordingly, I sentence you as follows:       

Sentence:

67On Charge 1, of aggravated burglary, you are convicted and sentenced to 3 years imprisonment.

68On Charge 2, attempt to procure a sexual act, you are convicted and sentenced to 12 months imprisonment.

69On the summary charge of commit offence whilst on bail, you are convicted and sentenced to 2 weeks imprisonment.

70On the summary charge of contravene condition of bail, you are convicted and sentenced to 1 week imprisonment.

71Charge 1, the charge of aggravated burglary, will be the base sentence. Six  months of the sentence on charge 2 will be cumulative on the sentence for charge 1.

72The sentence imposed on the each of the summary charges will be concurrent with Charge 1 and all other charges.

73This makes a total effective sentence of 3 years and 6 months imprisonment.

74I fix a non-parole period of 2 years imprisonment.

75Pursuant to s 18 of the Sentencing Act 1991, I declare 376 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.

s. 6AAA

76Pursuant to s 6AAA of the Sentencing Act (1991),  had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of 5 years imprisonment with a non-parole period of 3 years.