Director of Public Prosecutions v Bana
[2020] VCC 1874
•25 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01018
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OLIVER BANA |
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JUDGE: | HER HONOUR JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2020 | |
DATE OF SENTENCE: | 25 November 2020 | |
CASE MAY BE CITED AS: | DPP v Bana | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1874 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Aggravated home invasion, theft, handle stolen goods
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Ms R. Marques, Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Purcell | Sarah Pratt & Associates |
HER HONOUR:
1 Oliver Bana, you have pleaded guilty to:
·one charge of theft of a black CLA 20 Mercedes Benz, between 3 and 6 March 2020;
·one charge of handling stolen goods on 4 March 2020;
·one charge of aggravated home invasion on 2 April 2020;
·one charge of theft of a black C 43 Mercedes Benz on 2 April 2020.
2 The maximum penalty for aggravated home invasion is 25 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment. The maximum penalty for handle stolen goods is 15 years’ imprisonment.
3 You were 19 years of age at the time of these offences.
4 The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events, other than the issue relating to whether you were armed during the home invasion. A general summary of the facts is as follows.
Charges 1 and 2
5 On or about 3 March 2020, a residence in Rowville was burgled where property, including a black Mercedes Benz, was stolen.
6 On 4 March 2020, police attended in Glassnocks Road, Cranbourne North, in response to a telephone call from a resident who was concerned about the suspicious behaviour of occupants in a car. When the police arrived, they observed a black Mercedes Benz with the same number plate as the car that had been stolen from Rowville, the day before. It was being driven by a male of African appearance. The police attempted to follow the vehicle but were unable to do so.
7
Items of property that had been stolen from the Rowville address were
located in Glassnocks Road, underneath a tree. Police recovered a
jewellery box, containing assorted pieces of jewellery, a laptop, Mercedes Benz owner’s manuals, two hats, a pencil case, a charger, a watch and deodorant.
8 On 6 March 2020, the black Mercedes Benz was located in Clyde.
9 Upon forensic examination, your fingerprints were located on the jewellery box and on the car manuals. They were also found on the outside of the stolen vehicle.
Charges 3 and 4
10 At around 5am on 2 April 2020, you travelled in a stolen Volkswagen SUV to Flora Grove, Wantirna South, in the company of five other offenders. Upon your arrival, you and four of your co‑offenders left the vehicle, conducting surveillance in the street for about twelve minutes.
11
At 5.11am, you and four of your co‑offenders, being Moses RIEK,
Edwin OKOT, Oscar RANFORD[1] and an unknown male, approached the front door of 13 Flora Grove. At the same time, some of your co‑offenders were armed, carrying a metal pole or pieces of wood. The weapons were used to force entry into the premises by splitting the wooden frame of the front door. You were not armed although, as I have already explained, it makes little difference to your role in the offending.
[1] Oscar Ranford is a pseudonym
12 The two adult victims and their two young children were asleep upstairs at the time. You all went inside, entering the lounge/kitchen area, and removed a number of items belonging to the victims, including sets of car keys.
13 After approximately one minute, RIEK and OKOT moved outside into the garage. RIEK was carrying keys to a black Mercedes Benz that belonged to the victims. He entered the driver’s seat. OKOT got into the front passenger seat. RANFORD then exited the residence and entered the back seat. The unknown offender approached the rear of the Mercedes Benz but then ran off, getting back into the Volkswagen that was waiting in the street. You got into the driver’s seat of a white Jeep Cherokee that was parked in the garage. You attempted to start the vehicle but were unable to do so. At the same time, the adult victims, who had been awoken by two loud bangs, came down to the garage. The female yelled 'get out of my house' and the male opened the driver’s side door of the Jeep Cherokee. You jumped out of the car and ran to the Mercedes Benz which was driven away after you entered the back seat.
14 By this time, the victims had called the police. The male was able to track his stolen car via an app he had on his phone. He advised the police about the location of his car. As a result, police were able to covertly follow the stolen vehicle as it was driven in the Upper Beaconsfield area. At the time the road was dark, it was raining and visibility was poor.
15 At 5.52am, the driver accelerated the stolen car, entering an intersection against a red light and colliding with a 25-tonne crane truck. The collision destroyed the Mercedes Benz and damaged the truck. RIEK, RANFORD and you were trapped in the car and arrested at the scene. OKOT fled on foot and was arrested soon after. You were not injured but ‘shaken up’ by the serious collision.
16 You were taken to the Pakenham police station where you were interviewed, electing to answer 'no comment' to the allegations that were put to you. You were then charged and remanded in custody, where you have remained since that time.
17 On the day of your plea hearing, both adult victims of the home invasion were present and read to the Court Victim Impact Statements that they had prepared. Both statements clearly articulate the significant and ongoing trauma, insecurity and distress that has resulted from your conduct.
18 The female victim describes being emotionally distraught by this experience. It has challenged her perception of safety in her home. For her family to have been the victims of an aggravated home invasion has left her in an ongoing state of fear and concern. The distress has also caused physical symptoms that have resulted in her having to give up her employment. The loss of her income has affected the family’s capacity to maintain their lifestyle.
19 Seeing a stranger sitting inside her car, without her permission, has also had a negative impact on her sense of security. She writes that she feels that all her personal spaces and belongings had been invaded. She described feeling suffocated and extremely anxious as a result of your conduct.
20 She feels angry, sad and is unable to erase this incident from her memory. Both she and her husband have sought professional assistance to try to overcome the residual difficulties of your conduct.
21 The male victim’s statement outlines the burden that you have imposed on the family, having eroded their sense of security in their home. He feels that he failed to protect his family, as he did not prevent the incident from occurring. He states, 'I will never forget what happened that night; it’s ingrained in my mind like a tattoo'. He, too, continues to suffer trauma from this incident.
22 It was conceded by your counsel that this would have been a confronting ordeal for the victims. I take the content of the victim impact statements into account.
23 The driver of the crane that was involved in the accident has also provided a Victim Impact Statement. As you have not been indicted with any specific offence relating to that collision, I do not take this Victim Impact Statement into account when sentencing you
24 Aggravated home invasion is a serious offence. This was planned, where you acted in company with your armed co‑offenders. The victims were not known to you and I accept that the selection of their home was a random one. You broke into the family’s home while they were asleep in the early hours of the morning. Although the event only lasted for a short period of time, the victims were terrified. They confronted you and your co‑accused in the garage before you left in what was described as their dream car. The community expects that those who engage in the serious offence of aggravated home invasion must be punished and denounced for their conduct.
25 You have also pleaded guilty to the theft of another luxury vehicle and to receiving property, all stolen from a domestic burglary. These are serious offences of dishonesty, which must have caused the victim frustration and distress.
26 Your motivation for your offending was to get money to buy things so you could have an easy life. As you have done in the past, you determined that this criminal conduct was the easiest way to achieve that goal, notwithstanding the devastating effect it might have on your victims. I consider that your moral culpability is high.
27 You have a number of relevant prior convictions for offences of violence and dishonesty. You first came to the attention of police in September 2016 and have regularly offended since that time, particularly in 2018.
28 Your first appearance at Court was on 14 February 2019, where you pleaded guilty to a large consolidation at the Melbourne Children’s Court. The plea was related to a serious course of criminal conduct, in the company of several co‑offenders. The offences included aggravated burglary, where you were armed with a firearm, attempted aggravated burglary, aggravated carjacking where you were armed with an imitation firearm, carjacking, armed robbery, robbery, theft of a motor vehicle and other offences of violence and dishonesty. The sentence that was imposed was appealed. The appeal was heard in the Melbourne County Court on 3 May 2019. You were sentenced to a total of 20 months’ detention in a youth justice centre on that day.
29 You were released on youth parole on 17 June 2019. You failed to comply with its conditions and were returned to detention on 21 October 2019. The youth parole order recommenced on 17 February 2020. At the time of these offences, you were subject to that order. It expired on 21 April 2020. The fact that you were on parole at the time of these offences is an aggravating feature of your offending.
30 You were also released by the Melbourne Children’s Court on a 12-month Good Behaviour Bond for the offence of assault by kicking, on 13 May 2019. You were subject to the Bond at the relevant times.
31 Your filing hearing proceeded on 3 April 2020. This matter resolved to a plea of guilty at the committal case conference four months later, on 5 August 2020.
32 Your plea of guilty has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You have spared the victims the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that, particularly in the current environment where jury trials have not been proceeding in light of the COVID 19 pandemic. Your early plea of guilty also demonstrates an acceptance of responsibility for your offending conduct.
33 At the request of your solicitor, you participated in an assessment with forensic psychologist, Ms Laura Fleming. She has provided a report for the Court, dated 28 October 2020.
34 In the course of your consultation with Ms Fleming, you discussed your criminal history. You told her that you were not involved in most of the prior offending, but pleaded guilty to it, as you thought it was easier. In her opinion, you were dismissive of the seriousness of the offending and attempted to indicate your limited culpability, in that you said that it was your co-offenders who participated in the assaults or who were armed. Ms Fleming considers that if this was true, you were, therefore, unaware of your culpability associated with being present at the time of the offending.
35 I agree with Miss Fleming’s view, that after reviewing relevant police material, it appears that this is not true. You were not only present while others committed the crimes, you were also an active participant. You offended regularly being part of a group of young men, committing violent offences.
36 Ms Fleming said that you have a limited ability to identify any harm to your victims. In relation to the current offending, it was only after extensive prompting that you were able to identify that the victims in this case, ‘would have felt worried for their kids and their safety’. Further, that if it had occurred to your parents and siblings, you would have been ‘shattered’.
37 You have written a letter to the Court, in an attempt to provide a full picture of who you are. You start by saying that in Year 11, you started 'hanging out with the wrong crowd and then getting into minor trouble which then elevated and ended up where I am today'. Otherwise, you describe yourself as a nice, caring, loveable and trustworthy person. 'I am nice to everyone and I never want to hurt people…. I’m always taking care of my mates, making sure they’re physically and mentally well…. I’m always encouraging them to do better'. You justify the instant offending, saying that you were persuaded to get back into criminal activity.
38 I consider that you have a misguided view of your personal characteristics and responsibilities. You have not been honest or realistic in your self-assessment, when considering your serious misconduct, in the company of your friends, over the past few years. I do not accept that you have a realistic understanding of your past criminal behaviour and the effect it has had on others. You appear to underestimate the need to take responsibility for your actions and to understand the seriousness of your conduct.
39 In your letter you say 'I’m truly sorry to the victims. I have had a lot of time to reflect on the bad decision I made and I wish that I could undo things'. It may be that after spending over seven months in custody, you are developing some insight into the effect of your conduct on the victims and on the general community. While you have expressed that sentiment in your letter, in my view, your remorse, if it exists at all, is only at a very preliminary stage.
40 In your letter to the Court, you admit that you need to change your lifestyle upon your release. You have acknowledged the need to find employment, exercise better judgment with your friendship groups, and pursue a better lifestyle.
41
You have completed vocational courses in custody which complement a bricklaying course that you engaged in, when released on parole last year.
Mr Andrew Smith was your case manager at PIVOT, a youth support and advocacy service. You first became involved with PIVOT when released on parole and you have continued to engage with Mr Smith while you have been on remand. He confirms that you have secured employment in custody and are currently doing a furniture making course. He writes that employment remains an ongoing goal for you and that this is your main focus upon your release.
42 He describes you as ‘an intelligent young man who has shown that he is able to achieve whatever he sets his mind to’. Mr Smith actively supported you when you were on parole and he will continue to offer you voluntary support. He confirms that you are part of a caring, supportive family.
43 Your father, Mr Komi Bana, has written a letter to the Court dated 31 October 2020. He states that after arriving in Australia in 2005, he worked hard to achieve his qualifications. He is employed, as is your mother. He also works in a voluntary role as a religious minister and is a leader in your community. He writes that you were raised in a committed Christian family. Your criminal lifestyle is not consistent with your family values. Your parents want you to live a simple, happy life. You are fortunate to have their ongoing love and support and they will encourage you to work towards a better future.
44 You are currently held at the Melbourne Remand Centre. I take into account that measures taken by Corrections to deal with the COVID‑19 pandemic will continue to add to your hardship as a prisoner, particularly as this is your first time in adult custody and you are only 19 years of age. The prosecution concedes as much.
45 I am aware that the first fourteen days you spent in custody were in 24-hour lockdown, due to quarantine requirements. I do not provide any specific sentencing benefit for this or for the possibility that lockdown may occur again. As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of the prison authorities.
46 It is clear, however, that the current time will be more stressful for you than it would be if you were in the community. This is not only due to your personal position of confinement but also to the hardship you may feel being absent from your family at this difficult time. The emotional impact of being unable to have any personal visits so far, has increased the burden of imprisonment. It is unclear when this arrangement will change. You have not physically seen anyone from your family for seven months and the Zoom calls that you are allowed, are a poor substitute for their company.
47 You are also likely to feel more vulnerable to the possibility of infection of the virus, in light of your incarceration. These hardships justify a sentencing benefit overall.
48 I am aware that vocational and educational programs are more limited at the current time, although you have been able to undertake some courses. Fortunately, you are currently engaged in employment.
49 You were 19 years of age at the time you committed these offences and will turn 20 on 23 February 2021. You are to be sentenced as a young offender. In light of the seriousness of these offences, the mitigating effect of age and your youth is reduced, although not extinguished. These factors are still relevant when considering your prospects of rehabilitation. Denunciation and deterrence must have a greater emphasis, however, as the seriousness of the offending increases.
50
You were born on 23 February 2001, in northern Sudan and are the oldest of six children. As a result of the war, your family relocated to Australia on
23 February 2005. Your childhood was unremarkable and you were raised in a supportive and loving environment. There is no family history of contact with the criminal justice system.
51 You attended a number of primary schools before attending secondary school in Dandenong from Years 7 to 9. In Year 10, you moved to St Peter’s College, Cranbourne. Up to that point, you describe yourself as an average student who participated at school and enjoyed playing soccer. You attended a Christian church weekly, although you have not done so for some time.
52 You were expelled from school in Year 10 for using marijuana. You then attended St John’s Regional College, although for only a short time as you were again expelled. In 2018, you attempted Year 12 at TAFE. You did not complete this, however, as you were remanded for offending. You attempted to complete Year 12 again in 2019, although you were returned to custody during that time.
53 You have previously started an apprenticeship in bricklaying, although more recently you were unemployed. Over the last two years, you have spent significant periods of time in detention or adult custody.
54 You admitted that you engaged in your criminal offending to ‘look for money’ which you would spend on expensive items. You wanted to live ‘the easy life’.
55 You are not currently in a relationship.
56 You have not been diagnosed with any psychiatric disorder, neurological impairment or mental health issues.
57 You commenced using cannabis at the age of 14 and this use continued until the day you were most recently arrested. You underwent withdrawal symptoms when remanded. In your discussion with Ms Fleming, you were able to recognise that the use of cannabis contributes to your lifestyle problems. You were, however, ambivalent about changing your substance use. You admit that you were smoking cannabis prior to this offence.
58 In Ms Fleming’s opinion, you have a poor understanding of the impact of your substance use on your behaviour. Further, over the last few years, you have been part of a social group that supported anti-social, selfish behaviour and immediate gratification which appeared to be more interesting than the Christian morals and values with which you were raised. You admitted that your offending was motivated to fund a desired lifestyle.
59 Ms Fleming believes that you present as a moderate to high risk of recidivism and that you have a number of areas which need to be addressed to reduce this risk. In Ms Fleming’s opinion, it is essential that you engage in support to address your substance use and anti-social behaviour, in order to improve your prospects. If you do not address these issues and are unable to find better ways to use your time, you are likely to continue to offend.
60 You have expressed an interest in engaging with appropriate support and gaining employment when you are released. I am aware, however, that you had similar sentiments and were provided with opportunities to do so while on youth parole. Your youth worker made a significant effort to support you and you had the support of your family.
61 Regrettably, you were unable to resist the temptation to return to your anti-social and criminal lifestyle. At 19 years of age, you are still young. Your prospects of rehabilitation present a complex picture. Your successful reintegration into the community requires the involvement of a significant level of support and compliance. I accept that this is the best way to ensure the protection of the community and to encourage your rehabilitation. Clearly, your capacity to associate with a more positive peer group and to remain drug-free, are critical factors in your success. It is up to you to change the direction of your life. If you are prepared to engage with community supports and treatment, your prospects will improve. If you do not, your prospects are very guarded.
62 When considering sentence in this matter, I am aware that aggravated home invasion is a Category 1 offence pursuant to the Sentencing Act.[2] The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment. For the offence of aggravated home invasion, the Sentencing Act directs that a non-parole period of not less than three years must be fixed unless the court finds that a special reason exists.[3] The Sentencing Act directs that a non-parole period must be at least six months less than the sentence imposed.[4]
[2]Sentencing Act 1991 (Vic) s 3(1) (definition of ‘Category 1 offence’) para (ia).
[3] Ibid s 10AC(1).
[4] Ibid s 11(3).
63 Your counsel did not seek to persuade the Court that a special reason exists in your case. In his oral submissions, he agreed that the circumstances fall well short of the required special reason. A term of imprisonment, therefore, is the only appropriate disposition.
64 In relation to the other charges that are before the Court, general deterrence, specific deterrence, denunciation and protection of the community must all be given significant weight in the sentencing process. In light of your age, rehabilitation must also feature in the sentencing mix.
65 The offence of aggravated home invasion is a Category A serious youth offence.[5] A young offender cannot be given a youth justice centre order for a Category A serious youth offence, unless the Court is satisfied that exceptional circumstances exist.[6] In light of the finding that I have made that the sentence to be imposed under s10AC of the Sentencing Act is appropriate and that a special reason does not exist, I do not need to consider this section.
[5] Ibid s 3(1).
[6] Ibid s 32(2C).
66 The principle of parity needs to be considered when fixing sentence. I am satisfied that you were complicit in joint criminal offending with your co-accused on 2 April 2020. Two of your co-offenders have already pleaded guilty. RIEK’S matter has not been dealt with and is listed for directions hearing in the County Court on 25 November 2020.
67 RANFORD and OKOT both pleaded guilty to the offences committed on 2 April 2020, being one charge of aggravated home invasion and one charge of theft of a black Mercedes Benz. OKOT also pleaded guilty to the related summary offence of committing an offence on bail. You have pleaded guilty to the two offences committed on 2 April 2020, as well as two further offences committed in March 2020.
68 RANFORD was sentenced in the Children’s Court, as he was aged 17 at the time of this incident. The principle of parity has limited application in this case, as he was sentenced under the Children, Youth and Families Act and released on a youth supervision order for ten months. Statutory sentencing considerations that governed his sentence do not apply to adult offenders.
69 OKOT was sentenced to a total effective sentence of three years and eight months, with a mandatory non-parole period of three years. While both you and OKOT are to be dealt with in this jurisdiction, there is a significant disparity in your criminal history. That difference is relevant to the sentencing functions of specific deterrence and prospects for rehabilitation. The sentence that I will impose will be closer to OKOT’S, however, than it would otherwise be, in light of your age and the prescriptive penalty for Charge 3. The sentence that I impose cannot be crushing
70 I take into account the maximum penalties for each offence. I have considered current sentencing practices. While the principle of totality is relevant, I have taken care not to doubly punish you for these offences.
71 As a result of pleading guilty to two counts of theft of a motor vehicle, I am required to make an order against your licence.[7]
[7]Sentencing Act, s89(4)
72 Balancing all these factors as best I can, I sentence you as follows:
73 Charge 1 – you are convicted and sentenced to one-year imprisonment;
74 Charge 2 – you are convicted and sentenced to nine months imprisonment;
75 Charge 3 - – you are convicted and sentenced to four years imprisonment;
76 Charge 4 - – you are convicted and sentenced to one-year imprisonment.
77 The principle of proportionality requires the total effective sentence to be commensurate with the aggregate criminality of your offending.
78 I direct that Charge 3 be the base sentence.
79 Three months of Charge 1 and three months of Charge 4 are to be served cumulatively upon each other and on the base sentence. Charge 2 is to be served concurrently.
80 That is a total effective sentence of four years and six months, with a minimum mandatory non-parole period of three years.
81 In light of your age, I recommend that the Adult Parole Board consider an assessment to confirm whether you would be suitable to be transferred to a Youth Justice Centre, to serve at least part of your sentence.
82 Your licence is suspended 12 months.
83 I make the order for disposal as requested.
84 I enter in the records of the Court that you have served 232 days of pre-sentence detention in relation to this sentence.
66The declaration I make under s.6AAA, is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of five years and six months, with a non-parole period of four years and three months.
85 Can I confirm Ms Duckett and Mr Purcell, are you clear on the sentence?
86 MS DUCKETT: Certainly Your Honour, thank you.
87 MR PURCELL: Yes Your Honour, thank you.
88 HER HONOUR: All right. Are there any further orders sought?
89 MS DUCKETT: They were the orders for the matter, Your Honour, thank you.
90 HER HONOUR: Thank you. Mr Purcell, in a moment, I will excuse Ms Duckett and adjourn the court. I remind your client that the court staff will be present, but I will give you an opportunity to speak with your client and if there are any family members here, prior to cutting the link, if you wish to do so.
91 MR PURCELL: Thank you very much, Your Honour.
92 HER HONOUR: Thank you. I'll adjourn the Court.
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