Director of Public Prosecutions v Curtis

[2024] VCC 1093

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-24-00361

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMANUEL CURTIS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2024
DATE OF SENTENCE:	22 July 2024
CASE MAY BE CITED AS:	DPP v Curtis
MEDIUM NEUTRAL CITATION:	[2024] VCC 1093

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence      

Catchwords:  Aggravated burglary – theft of a motor vehicle – dealing with proceeds of crime – young offender – no prior convictions

Legislation Cited:  Criminal Procedure Act 2009; s 145, s 242

Cases Cited:R v Mills (1998) 4 VR 235; Boulton v The Queen [2014] VSCA 342; R v Wyley [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA 372

Sentence:Convicted and ordered to serve a Community Corrections Order for a period of two-years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Vasiliou	Office of Public Prosecutions
For the Offender	Ms L. Cao	Cao & Co Legal

HIS HONOUR: 

1Emmanuel Curtis, on 6 July 2024 here at the County Court of Victoria sitting here at Melbourne, you pleaded guilty to the following charges on Indictment C2316448:

Charge 1, aggravated burglary, armed with a knife and a person present:  This charge has a maximum penalty of 25 years' imprisonment.

Charge 2, theft of a motor vehicle:  This charge has a maximum penalty of 10 years' imprisonment.

2You also consented to a related summary charge being dealt with at this plea hearing pursuant to ss145 and 242 of the Criminal Procedure Act.  You pleaded guilty to Charge 4, dealing with proceeds of crime.  They were four credit cards.  That charge has a maximum penalty of two years' imprisonment or 240 penalty units.

3You have spent 16 days pre-sentence detention in respect of these charges. 

4You have no prior convictions.

5You have an outstanding matter at the Broadmeadows Magistrates Court on 31 July 2024 for offending alleged to have occurred on 8 September 2023.  You have been on bail for these offences since 27 July 2023.

Circumstances of your offending

6You have offended with two other males, one was 17 years of age, the other was 15.  At the time of the offending you were 19 years, you are now 20 years old.

7At approximately 11.20 pm on 16 June 2023, “TDY”, “DY” and yourself were captured on CCTV at the rear of a house located on Bruce Street, Moonee Ponds.  There were two occupants asleep upstairs in their home.  The CCTV images of yourself and “TDY” who were in possession of knives. “DY” was in possession of a machete which was inside his pants.  That is the charge of aggravated burglary.

8“TDY”, “DY” and yourself were all at the premises for approximately three minutes before exiting with the keys to the black Mercedes Benz hatch bearing registration number 1RL3DU.  You were captured entering the passenger seat of that vehicle while “DY” entered the driver's seat before that vehicle was driven away from the address.  That is the theft of a motor car.

9At approximately 12.06 am the next day, the vehicle was captured on CCTV again parked in a carpark at a milk bar near the intersection of Kirkton Drive and Melton-Gisborne Road in Kurunjang.  You were seen, along with your co-accused, exiting the vehicle.  Yourself, “DY”, “TDY” and two others were spooked, for want of a better way of describing it, from that scene. It was near “DY's” address. 

10The keys to the car you had have not been found.

11Police have made enquiries and there is a 32 minute drive from where you stole the car to the milk bar. The car you were in, the Mercedes Benz, had travelled just over 38 minutes between the time of the aggravated burglary and arriving at the scene of Kirkton Drive. The police have also obtained call charge records between yourself and the co-accused and you were in contact with each other for the area concerned with this offending.

12On 12 July 2023, early in the morning the investigators from the Fawkner Divisional Response Unit executed a search warrant at your father's home at Antonia Drive, Melton South. The following matters were located:  a pair of black and white Nike sneakers; black Nike tracksuit pants; six bank cards in the name of Yongchun Shao, that is the summary-related offence.

13Photographs were taken of a pair of black Nike shoes, later identified as the shoes worn by you in the CCTV at Bruce Street, Moonee Ponds.

14Following your arrest and interview, a search warrant was executed at Heath Street, Pascoe Vale, your bail address, where investigators seized your mobile phone.  An analysis was conducted of your mobile phone.  There was video for the day in question, that is 16 June 2023 at 11.27 pm, which clearly shows you and “DY” in the Mercedes Benz, having stolen it from Bruce Street in Moonee Ponds moments earlier.  There was also a video some ten minutes after, on the same day, which clearly shows you and “YD” in the Mercedes Benz and two other men involved in a third vehicle in question, driving on the Calder Freeway. 

15Bluetooth data confirmed your phone was connected to the Mercedes Benz minutes prior to it being dumped after being stolen.  Bluetooth history indicated that you were connected with another vehicle, which was Ms Villani daughter's vehicle, as I understood it, a BMW, that vehicle recorded as 'Air Raider.'

16You presented yourself on 12 July 2023 at the police station.  During your record of interview you confirmed your mobile phone number and you identified yourself on the CCTV footage.  You were remanded in custody and you remained in adult custody between 12 July 2023 and 27 July 2023 when you were bailed.  As I have said earlier, you spent 16 days pre-sentence detention on remand prior to your release on bail.

Victim Impact Statement

17Ms Villani prepared a victim impact statement dated 11 July 2023.  The first she knows of your offending is when the police knocked on her door.  She could not find her house keys to let them in because they were gone, so was her car and her daughter's car. 

18She has then watched her own CCTV from her home, and you and two other co-accused were in her home with knives.  The best that can be said of your offending is that there was no direct physical confrontation between you and your victims. You were in and out of the house in three minutes.

19Your victims have had other problems in their lives before you and your co-offenders ever attended at their property.  Your offending adds to their trauma about those matters and these matters.

20Ms Villani perfectly encapsulates the situation when she says as follows:

'Young offenders who don't give a shit about anyone else but themselves, not taking any consideration of the impact that they make, only to have a joy ride with someone else's property and film themselves doing so – what a joke.  Who do they think they are?'

21The cars were returned to them by the police as they were recovered on the same day.

Personal Circumstances

22You are now 20 years of age and at the time of the offending you were 19.

23You have grown up in the Melton area.  You lived with both parents and an older brother.  Since this offending your parents have separated.  Your mother and older brother now have moved to Geelong.  You remain living with your father and your girlfriend at Melton.

24You completed your education at Year 11 level at Melton Secondary College. 

25In December 2022, you were assessed by Dr Anne Glew, a general practitioner from Williams Landing, for mental health issues.  She took a history from you that you had seen a psychologist on a single occasion when you were in primary school.  Dr Glew diagnosed you as suffering from an anxiety disorder.  You spoke to her of suicidal ideation but no real plan to go through with it.

26Your father has in the past taken an intervention order against you which meant you left the family home in Melton and lived with your girlfriend and her family in Pascoe Vale.

27Prior to being remanded for this offending you were employed as a meat packer in Laverton.  After you were granted bail you obtained work as a truck jockey, basically on a sub-contract basis working for the Good Guys, moving furniture and white goods.  You relinquished this job because of your reporting conditions and other obligations under the supervised bail order.  You believe you can get this employment back after this hearing and its consequences are known and finalised. 

28Whilst you have been on bail you were referred to Orygen Youth Health Service in August 2023.  You remained at Orygen with Mr Ung until December 2023.  You were then transferred to Headspace in Collingwood. After the initial engagement you declined any further assistance from Headspace.  You have also engaged with Mr Musti Gunduz, an outreach worker with YSAS.

29You have used cannabis since you were 14 years of age, and more recently, GHB.  In your sessions with Mr Gunduz you have shown no signs of intoxication but have received counselling about drug use from him.

30You have complied with a strict bail regime for almost a year.  You have family support and support from your girlfriend.  You have stable accommodation with your father.  You have been able to be gainfully employed and plan to resume your employment in the future. 

31You are so young but have so much to be grateful for.  Why did you offend?  No-one knows.

Sentencing Considerations

32The 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.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you, as an offender, are rehabilitated and reintegrated into society.

33I am also required to take into account current sentencing practices in fixing your sentence.  That requirement is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases, and I have looked at the statistics for sentences at the time.  I have considered the statistics and 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 case, as indeed they are from one another.

34I am also mindful of the provisions of the Sentencing Act, in particular section 5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. 

35I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case, and as you know I have had you assessed for a community corrections order.  You have been assessed as being suitable but that is not the end of the matter.

36You have pleaded guilty to these charges.  Your pleas of guilty were indicated at an early stage and your plea does have the utilitarian value of allowing for the orderly and effective administration of the justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community and your plea obviates the need for the victims of your offending to give evidence in a court case. 

37Your plea is also a clear acknowledgement by you 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 of these charges indicates and demonstrates some remorse on your behalf.

38Your offending is serious.  The first matter I will deal with is the principle of parity in sentencing.

39In total there are four co-accused involved in your criminal escapade on this night.  They were sentenced as follows:

1)“TC” was a 17 year old at the time of the offending. He pleaded guilty to theft of a motor car and received a diversion in the Children's Court at Melbourne.

2)“BM” was 15 years of age at the time of the offending. He pleaded guilty to theft of a motor car and received a diversion in the Children's Court at Broadmeadows.

These two co-offenders were involved in the theft of the BMW vehicle and did not enter the Villani home.

3)“TDY” was 17 years old at the time of the offending. He pleaded guilty to aggravated burglary with an offensive weapon, theft of a motor car, unlicensed driving and unrelated charges of possession of a prohibited weapon.  He received without conviction a bond for a period of six months in the amount of $200.

4)“DY” was 15 years of age at the time of the offending. He pleaded guilty to aggravated burglary and is awaiting sentence at the Children's Court at Broadmeadows.

40The latter two were the two co-offenders in the premises with you and in the Mercedes Benz when driven from the scene to Melton.

41I note that they are two and four years younger respectively than you are, and obviously are in the Children's Court jurisdiction.  Nevertheless, I am required to take into account the court sentences when fixing your sentence for the same offending.

42You are to be sentenced as a youthful offender.  You were 19 years old at the time of your offending and there is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation.  This approach serves the interests of the individual offender and the community as a whole.

43In the case of R v Mills, which is reported at [1998] 4 VR at 235, three propositions of sentencing were set out:

'Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises;'

'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

'The 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. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where that offender has not previously been incarcerated a shorter term of imprisonment may be justified. This proposition is particularly applicable in general principles of sentencing set out s5(4) of the Sentencing Act.'

44In more recent times the Court of Appeal has made pronouncements of the consideration of youth in sentencing practices.  In the case of Wyley, which is reported at 2009 VSCA, President Maxwell, as he then was, said as follows:

'Mills constantly reminds sentencing courts, and this court on appeal, that there is a great public benefit in the rehabilitation of an offender and in maximising the prospects of that offender will carry out a law-abiding life in the future.  But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period or a longer period of imprisonment rather than a non-custodial sentence.'

45Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as excluding the principles of Mills but simply as instances of what those principles are to be applied.

46The Court of Appeal has also looked at this issue in Azzopardi v The Queen reported at [2011] VSCA 372. In that case the court said as follows:

'The general proposition which flows from these authorities is that 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 level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of an 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.'

47You have no criminal history.  You have an outstanding matter in the Broadmeadows Magistrates Court for alleged offending after you were granted bail for the offences before this court.  You have remained on bail on strict conditions for about one year.  I am referring to Exhibit 5 which are the seven supervised bail reports.

48The community through Parliament have clearly set out the seriousness of the charge of aggravated burglary with the maximum sentence of 25 years' imprisonment.

49The prevalence of your type of offending is noted almost daily in the media.  General deterrence has a part to play in your sentencing calculus.  The seriousness of your offending is marked by the following matters:

(a)  your entry to the house was at night-time, i.e. 11.20 pm;

(b)  the house had two occupants present upstairs at the time of your entry;

(c)  you were carrying a knife at the time of your entry into the premises;

(d)  you entered the premises in company with two other co-offenders, both of whom were armed with offensive weapons;

(e)  you were in and out of the premises in a three minute period;

(f)   there was no forced entry to the premises itself;

(g)  there was no confrontation with the occupants of the house.  That is a matter of good fortune rather than well planned; and

(h)  the first knowledge of your offending was when the police notified the occupants that their cars had been abandoned in Melton.

50I agree with the prosecution submissions that this offending is low to mid-range for this type of offending, and that comes from Exhibit C.

51I accept that you are remorseful for your offending.  Your letter of apology, which was Exhibit 2, sets out a level of understanding of the impact your offending has had on your victims.  Further, you have spent 16 days in adult custody on remand and you know what can happen if you return to this sort of behaviour.

52There has been no explanation for your offending.  I do not accept that you have no memory of what happened on the night of your offending.  I note here in the report from Corrections that prior to this offending you engaged in a lot of drug-taking.

53The household you invaded has two luxury vehicles.  There was filming of the driving of these vehicles.  This was undoubtedly a joy ride event for you.  Ms Villani summed it up perfectly in her victim impact statement and I will not repeat it again here.

54You have had some mental health issues when growing up and in the period prior to this offending.  You have had limited treatment to deal with these issues.

55You have a stable relationship and accommodation.  You have a proven record of being able to obtain and hold down paid employment.  You have complied with strict bail conditions for the extended period of 12 months.

56There is hope for your rehabilitation.  I assess your prospects of rehabilitation as good if given some supervision and rehabilitative assistance.

57The sentencing principles of general and specific deterrence, denunciation of your actions, protection of the community, just punishment and your rehabilitation, given your age, are best served by the imposition of the community corrections order with some conditions.

58Would you stand please.

59On Charges 1 and 2 you are convicted and sentenced to serve a two-year community corrections order with the following conditions:

a)    you are to be supervised;

b)    you have drug and alcohol assessment and treatment;

c)    you have mental health assessment and treatment;

d)    you perform 200 hours of unpaid community work; and

e)    you are to attend for judicial monitoring here at this court on 18 September 2024 at 9.30 am.

60Further, on the related summary Charge 4, you are convicted and fined $1,000.

61Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to two and a half years' imprisonment with an 18 months’ non-parole period.

62I have signed the forfeiture order sought by the prosecution.

63You are to attend at the Melton CCS office within 48 hours of today.  That office is at 2A Barries Road, Melton.

64If you consent to the community corrections order, you will be given a copy of it and sign it.  And I will sign it after you have.

65Does that cover everything?

66MS VASILIOU:  Your Honour, if I might just confirm that in relation to the summary offence ‑ ‑ ‑ 

67HIS HONOUR:  Sorry, the licence ‑ ‑ ‑ 

68MS VASILIOU:  Yes, a conviction was recorded ‑ ‑ ‑ 

69HIS HONOUR:  Yes, sorry.  Thank you, I forgot, yes.  It's 89 ‑ ‑ ‑ 

70MS VASILIOU:  Eighty-nine sub-s(4).

71HIS HONOUR:  Thank you.  Pursuant to s89(4), your licences that you hold are cancelled and you are disqualified for a period of six months. 

72MS VASILIOU:  As Your Honour pleases.

73HIS HONOUR:  And thank you for reminding me, I had a note here and I hadn't done it.  You can take a seat.  Ms Cao, if you could just check it first of all, and then secondly, get your client to sign it – if he consents.

74MS CAO:  Yes, Your Honour.  If I could approach the dock, Your Honour.

75HIS HONOUR:  Certainly.  Mr Curtis, I have had two copies of that order given to your counsel, one of them is for you.  You stick it up inside your wardrobe, or whatever you use to put your clothes in at home, so that every day you open it up to get your clothes out of that wardrobe – hopefully they're not on the floor – you have a reminder of what your obligations are for the next two years.

76I want you to know this:  in this report here from Corrections they said two things that struck me and they are these:  they consider you a high risk of re-offending.  What that means is they think you're a high risk of breaching this community corrections order.  I hope they're wrong, and you are the only person who can prove that.  I hope they're wrong because if you come back on a breach of this community corrections order there's pretty much only one conclusion that happens – you'll go home with these two blokes here, alright?  And you'll go home for a while with them.

77That's one.  Two, the other one is in their report they said that there's no sign of any mental health issues.  I'm not satisfied about that and that's why I have put that condition in there.  If someone genuinely assesses you properly and says there's nothing wrong with you, well and good, but this behaviour and your drug use there is something not quite right in there.

78And the third thing I want to tell you is this:  I have put in a judicial monitoring.  They, Corrections, didn't think it was appropriate.  I think it is in your case.  There is something I want to tell you about that.  I'm shortly not going to be a judge any longer – that judicial monitoring is the last time you'll see me.  But let me tell you this:  if you breach this community corrections order, the next judge who sits in the position might not share the view I have had of you today.  Do you know what I'm saying when I say that?  They might think you've got out really lightly.  So don't breach it.

79You can step out of there.

80The other thing is you can't drive home if you've brought a car and you've got six months off the track before you can get it back.

81The order I got your client to sign didn't have 'theft of a motor vehicle' on it, it just had 'theft.'

82MS CAO:  Yes, Your Honour. 

83HIS HONOUR:  Good, thanks.  Counsel, thanks very much for your assistance in this matter.  I've got someone else waiting outside.  Thanks, officers.

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