Director of Public Prosecutions v Bingham

[2024] VCC 922

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR 23-01672

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE BINGHAM

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June
DATE OF SENTENCE:	19 June 2024
CASE MAY BE CITED AS:	DPP v BINGHAM
MEDIUM NEUTRAL CITATION:	[2024] VCC 922

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:             Aggravated burglary – Theft – Plea of guilty – Koori Court jurisdiction – Full participation in Koori Court Sentencing Conversation – Application of Bugmy principles – Remorse – Parity.

Cases Cited:Honeysett v The Queen [2018] VSCA 214; R v Morgan (2010) 24 VR 230; Bugmy v The Queen 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of 28 months’ imprisonment with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Arceri	Office of Public Prosecutions
For the Accused	Mr C. Edwards	SLKQ Lawyers

HIS HONOUR: 

1Luke Bingham, you have pleaded guilty in the Koori Court to a charge of aggravated burglary and a charge of theft.  Aggravated burglary has a maximum penalty of 25 years' imprisonment and theft has a maximum of 10 years.  You have admitted relevant prior convictions.  You had completed a CCO as part of a combination sentence, with a period of imprisonment, a mere six weeks prior to your commission of this offence.  You committed the offences before me in company with Paul Fraser, who was sentenced by Judge Holding in this court on 9 June 2022.

Circumstances of Offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening, which was Exhibit A on the plea and forms part of these Reasons for Sentence.  Your counsel Mr Edwards indicated the opening was accepted as an accurate recital of your offending.  In brief, on 4 December 2020, you attended a secure apartment building in South Melbourne, in company with Fraser, who was armed with a crowbar.  You were intent on gaining entry to a particular apartment to confront a particular individual.  You gained access to the building proper by subterfuge.  You then used a fire extinguisher to bash the door open whilst your co-offender stood nearby, armed with the crowbar.  You entered the apartment with the crowbar.

3Your unfortunate victim was asleep.  It was the early hours of the morning.  She lived alone.  She saw you in her bedroom doorway, armed with the crowbar.  It was a terrifying experience for her.  Upon seeing her and realising your error, you left her apartment, not before stealing a Burberry purse belonging to her, which is shameful behaviour, of course, for which you are suitably ashamed, in retrospect.  You were apprehended sometime later, due to leaving your palm print on the fire extinguisher.

Objective Gravity

4With regard to the objective gravity of this offending, it must be noted that it is very serious offending.  Breaking into a single woman's apartment in the dead of night is the stuff of nightmares.  Every person is entitled to feel safe in their home.  The invasion is all the more frightening, having been committed at night around 3 am and whilst armed.  You were also in company.  You gained entry by force.  I have had regard to the victim impact statement.  Your offending has caused lasting effects and impacts upon your victim, deep distress at the time, but continuing anxiety about safety in her home, flashbacks, easily woken at night, and I take these impacts into account.

Personal Circumstances

5Turning to your personal history.  You are 38 years of age.  You were 35 at the time of the offending.  You are a proud Pitjantjatjara man through your mother's line.  You were born in Darwin, rather than on your traditional country around Docker River in the Northern Territory, due to the impacts of what is known as the Stolen Generation.  Your early childhood was marred by profound disadvantage and exposure to trauma.  Both parents battled alcohol addiction and your father was particularly violent.  You and your mother experienced physical abuse at his hands.  There was inconsistent nurturing from your mother, which is expanded upon the excellent psychological report from Courtney Steffens, which was Exhibit 2 on your Plea.

6You moved around constantly during childhood, largely due to neglect and lack of opportunity, perhaps exacerbated by your ADHD and PTSD.  You spent many of your formative years at Maningrida, a remote community in central Arnhem Land.  You were there in the care of an aunt and grandmother, although much extended family was around you.

7Both your counsel and you were able to give some particular insights into life at Maningrida during the sentencing conversation.  There were positives to you living in the Maningrida community in relation to connection with culture and language, although it was not your country.  There were many negatives also.  Health and housing standards in Maningrida in your formative years might colloquially be termed as third world standards.  Exposure to alcohol fuelled violence and other traumas were also a regular part of your experience.  You lived with your father for a short period in childhood, but you were the victim of sexual abuse at the hands of another.  This led to further trauma and harm, of course, but in a practical sense, it also led to further instability in your supports.  You were neglected by both parents thereafter.

8Your disrupted schooling was summarised in your counsel Mr Edwards' helpful outline of submissions, which was Exhibit 1.  You attended Humpty Doo Primary School, Essington Primary, Nightcliff Primary School, Parap Primary School, Moil and Anula Primary Schools, due to either moving or being asked to leave the school, or associated problems, such as behavioural issues, which were no doubt linked to ADHD.  Around at the time of your primary school education, you were living with family between Palmerston, Darwin River and Nightcliff.  You also spent a period of time at the Wangetti Education Centre in Cairns and there was discussion about that experience during the sentencing conversation also.

9You have been in custody some 540 days or thereabouts, since your remand.  It is longer than that.  At the time of the plea, you only had available to you, 358 days of presentence detention.  You had absconded on bail for a period during which you resided with your mother in Western Australia and you spoke about that at some length in the Sentencing Conversation.  I was assisted by the prosecutor's helpful outline, summary of opening and sentencing submissions and there was a chronology attached to the opening, which sets out that the offending in happened 4 December 2020. You were then arrested and remanded in February 2021 and you were granted bail in September of that year.  You failed to answer bail, a warrant was issued and you were extradited in August last year.  There have been other matters that you have been dealt with and hence, you have been in custody longer than the period for which you have presentence detention available. 

10Your personal details and experiences are set out in more detail than I will recite in these reasons, in Exhibit 2, Ms Steffens' thorough report and Mr Edwards' outline on your behalf.  I accept the personal details that are contained within those documents. 

Matters in Mitigation

Participation in Koori Court

11In relation to matters in mitigation, you participated fully in the Koori Court sentencing conversation and that is a matter that I take into account in your favour in a mitigatory sense, as is provided for in cases such as Honeysett and Morgan.[1]

[1]Honeysett v The Queen [2018] VSCA 214; R v Morgan (2010) 24 VR 230.

12You spoke about your painting during the sentencing conversation and there were examples provided of your work, which were very impressive, and the Elders and Respected Persons noted how impressive that artwork was and your freehand talents and you spoke with some enthusiasm, quite rightly, about your interest in art and you responded well to the praise as to your ability.

13You were spoken to during the conversation about the types of supports that you should engage with, the culturally appropriate supports that you should engage with on a period of parole in order to address the issues that have plagued you since childhood, in particular, dealing with trauma, but also dealing with drug use and drug addiction issues, reunifying with your children and engaging with organisations such as Wadamba Wallan, which is the return to work program from prison, Dardi Munwurro, which is the alcohol and drug counselling, but also organisations such as CASA and Arbias, that might assist you in addressing some of the criminogenic factors in your life.  NDIS support was also discussed as something that you ought to pursue and seek assistance in pursuing prior to an exit from custody.

14You spoke about your remorse, and I accept that you have genuine remorse in relation to this matter.  You said you were appalled at your behaviour, and that it was disgusting.  You also spoke about what you've been doing in custody: the painting, the smoking ceremonies, being a peer support person in prison and the lead role you take in relation to setting up ceremony in prison.  You also spoke in great detail about your experience of life in Maningrida and other personal experiences to you and I accept those matters, but you were completely forthcoming in what can only be described as full participation, which I accept reflects not only genuine remorse and contrition, but a genuine willingness to improve in the future and to accept the advice that was given to you during the Sentencing Conversation.

Plea of Guilty

15Your plea of guilty is a matter of mitigation that I take into account.  I also find that due to what is often referred to as hardship in custody and your experience of custody being harder than for someone not afflicted by ADHD, PTSD and depression, is a matter which mitigates sentence and I refer in particular to paragraph 160 of Exhibit 2 of Ms Steffens' report, where she opines on that particular point.

Bugmy principles

16You are also entitled to substantial mitigation, due to the profound childhood trauma and disadvantage that I have referred to.  It is also known as Bugmy factors, or mitigation under the Bugmy principle.[2]  Again, I rely, to a significant extent, upon the Exhibit 2, the report of Ms Steffens.  In particular, the trauma analysis which there was some testing done in relation to you, which, very relevant to your circumstances and relevant to the court's consideration of sentencing factors.  Your exposure to traumas, not just personally, or to immediate family, but in that extended sense, is relevant to an understanding of you and your particular circumstances.

[2]Bugmy v The Queen (‘Bugmy’) 249 CLR 571.

Other Sentencing Considerations

17The other significant matter for me to consider is the issue of parity.  Your co-offender was sentenced a couple of years ago now in June 2022.  He was sentenced to 30 months' imprisonment, with a non-parole period of
20 months.  He had been in custody for 496 days as presentence detention at the time of his sentence.  He also admitted prior convictions, which do not appear to me to be disparate from your history in any meaningful sense.  Judge Holding found that his moral culpability for the aggravated burglary was substantially the same as the intruder, being you, notwithstanding that Fraser remained outside the apartment and that is, according to principle, where two are involved, there is complicity, unity of purpose and not much room for differing, in relation to moral culpability.  There is a difference in role though and I acknowledge that your role is worse than that of Fraser's.

18You have available to you mitigation that is not apparent to me from the sentencing remarks, to be present in Fraser's case.  In other words, there is disparity between the two of you in respect to the following: your participation in the Koori Court sentencing conversation, the significant mitigation I have found stemming from the application of Bugmy, the hardship in custody, which has been relied on with reference to Verdins, that is a principle that has been longstanding in sentencing in this jurisdiction.[3]  That is also a matter that places you in a different light from that of Mr Fraser.  I have also had regard to totality.  Whilst you have been in custody for in excess of 540 days, probably closer to 550 now, you have available to you, is it 358 days still of presentence detention, or has that increased?

[3]R v Verdins (2007) 16 VR 269.

19MS ARCERI:  Three sixty-two, Your Honour.

20HIS HONOUR:  Three sixty-two, now.  All right, so still running.  So, you have available to you 362 days, but that is out of a 550 or so days that you have been in custody.  There was reference, submissions made, both orally and in the written submissions, in relation to the risk of institutionalisation.  It is something that it is appropriate to consider in your case, given your history.  So, it is something I have turned my mind to also.

21Based largely on matters that emerged during the sentencing conversation and my assessment of your attitude and willingness to change and based upon the matters contained in the report of Courtney Steffens,  - I do consider that a long period of parole to assist you with breaking the cycle and provide you with the opportunity to engage meaningfully with organisations and to be referred to them under the auspices of parole, might have benefit in your case, not just for you, for the community, in order to rehabilitate you.

22So, weighing up all the factors, as I am asked, including important factors of general deterrence, denunciation, specific deterrence, particularly in regard to all the other factors I have mentioned as well, including what I find to be some prospects of rehabilitation, I sentence you as follows.

Sentence

23Mr Bingham, in relation to the charge of aggravated burglary, you are sentenced to 28 months' imprisonment. 

24In relation to the charge of theft, you are sentenced to three months' imprisonment. 

25The total effective sentence is 28 months' imprisonment. 

26I set a non-parole period of 16 months. 

27I declare pursuant to s18 of the Sentencing Act 1991 (Vic), that you have served 362 days as presentence detention.

28Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years, with a non-parole period of two and a half years. 

29All right, were there any other orders I needed to make, Ms Arceri?

30MS ARCERI:  No, Your Honour.

31MR EDWARDS:  No, Your Honour.

32HIS HONOUR:  Mr Edwards.  All right, all right Mr Bingham.  Was there a commit an indictable offence whilst on bail?  I can't recall now whether he - that was put him.

33MS ARCERI:  Yes, Your Honour, there was ‑ ‑ ‑

34MR EDWARDS:  Yes ‑ ‑ ‑

35HIS HONOUR:  There was?  That was put to him.  My apologies, I missed that in the wash-up.  In accordance with my usual practice, it doesn't always follow this way, because I have cumulated in the past, based on quite stark examples, but in relation to this case, I'll follow my usual practice and that is, you are sentenced to one month for the relevant summary offence of committing an indictable offence whilst on bail, which is also to be served concurrently, so it doesn't change the total effective sentence and the non-parole period.

36MR EDWARDS:  As Your Honour pleases.

37HIS HONOUR:  All right.  Thank you, yes, we'll adjourn the court.

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