Director of Public Prosecutions v Dador
[2019] VCC 649
•10 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01191
Indictment No. J10666635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KOUN DADOR |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 July 2018, 12 and 25 October 2018, 5 December 2018, 1 March 2019, 7 May 2019 | |
DATE OF SENTENCE: | 10 May 2019 | |
CASE MAY BE CITED AS: | DPP v Dador | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 649 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Aggravated home invasion – Theft – Assault with weapon
Legislation Cited: Crimes Act 1958 – Criminal Procedure Act 2009 – Sentencing Act 1991 – Summary Offences Act 1966
Cases Cited: DPP (Vic) v Hudgson [2016] VSCA 254
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P J Pickering (9 July 2018) Ms C J Duckett (12 October 2018) Ms S M K Borg (25 October 2018) Mr D P Hannan (1 March 2019) Ms J Fallar (7 May 2019) | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms J Pisasale | Slades & Parsons Solicitors |
HIS HONOUR:
1 Koun Dador, you have pleaded guilty to an indictment containing one charge of aggravated home invasion[1] and one charge of theft.[2] You have also consented to have this Court deal with one transferred related summary offence[3] of assault with a weapon (charge 8),[4] and you have pleaded guilty to that charge.
[1] Contrary to s 77B Crimes Act 1958.
[2] Contrary to s 74 Crimes Act 1958.
[3] Pursuant to s 145 Criminal Procedure Act 2009.
[4] Contrary to s 23 Summary Offences Act 1966.
2 The maximum penalty for aggravated home invasion is 25 years’ imprisonment[5] with a statutory 3 year minimum non-parole period,[6] unless the Court finds a special reason exists for not imposing that minimum non-parole period.[7] The maximum penalties for theft and assault with a weapon are 10 years’ imprisonment[8] and 3 months’ imprisonment[9] respectively.
[5] Pursuant to s 77B(2) Crimes Act 1958.
[6] Pursuant to s 10AC Sentencing Act 1991.
[7] Pursuant to s 10A Sentencing Act 1991.
[8] Pursuant to s 74(1) Crimes Act 1958.
[9] Pursuant to s 23 Summary Offences Act 1966.
3 The prosecution filed a summary of prosecution opening dated 25 June 2018,[10] which I have been told by your counsel I can treat as a statement of agreed facts.
[10] Exhibit P1.
The facts
4 On 22 February 2018 the victim, Adam Kabriel, was alone at his home in Collingwood. He noticed you and your co-offender, Ajak Leuth, enter the backyard of his property, which is shared with a neighbouring property. Mr Kabriel asked you what you were doing and you replied that you used to live next door. It appeared as though you were trying to enter the next door property.
5 In the early morning of 10 March 2018 you went to Mr Kabriel’s property along with Leuth and a group of three other men. You were recorded on CCTV jumping over the fence and opening a gate to the shared backyard. You all removed your shirts in order to wrap them around your heads to act as disguises. Armed with wooden planks your co-offenders kicked and caused damage to CCTV cameras outside Mr Kabriel’s home. While unarmed, you also engaged in this conduct. The Crown accepts that you did not have with you or use a weapon at any time during the offending.
6 When Mr Kabriel heard the noise outside he opened the back door and was immediately struck on the head by one of the intruders. The Crown accepts this was not you and that you were unarmed throughout the incident.[11] However, you were complicit in this act by giving your assistance and encouragement to the principal offender by your presence.[12] This gives rise to related summary offence charge 8.
[11] Transcript of plea hearing 9 July 2018 (‘T’) 38.8–38.16.
[12] See Crimes Act 1958 s 323.
7 Mr Kabriel may have lost consciousness momentarily. He was then pushed through the door, back into his home.
8 You led the offenders into the house. Mr Kabriel fell to the floor and was hit and kicked by a number of your co-offenders. Once again, the Crown accepts you were not actively involved in this conduct, indeed, on the CCTV footage you appear to be in the next room at this time.
9 Mr Kabriel was also struck on the head by the wooden planks. As he tried to call for help, the offenders kept asking him, ‘where is the camera system?’ Whilst this was happening you and others searched Mr Kabriel’s home.
10 I have watched CCTV footage from four cameras located outside and inside Mr Kabriel’s home.[13] It is clear this would have been a terrifying experience for him.
[13] Exhibit P2.
11 Mr Kabriel’s iPhone was taken from his hand by one of the offenders, although it was later recovered. One of your co-offenders stole an iPad Mini from Mr Kabriel’s bedroom. Shortly after you all left the house through the back door.
12 Mr Kabriel was taken to St Vincent’s Hospital where he was treated for his injuries, including bruising to his head and chest, mild concussion and non-displaced rib fractures
13 On 11 March 2018, you were arrested at your home in Fitzroy. You were taken to Melbourne West police station where you were interviewed. You initially denied being involved in these offences, but you later admitted your involvement and told police that:
(a) You were drunk and it was stupid.
(b) You didn’t touch the victim and that it wasn’t your fault. You were just there and it was stupid.
14 You told Dr Albrecht, who prepared a psychology court report at my request,[14] that at the time of committing these offences you were alcohol-affected and you had used cocaine and marijuana about 2-3 hours beforehand. Ms Lechner, a clinical psychologist, who prepared a report at the request of your legal representatives,[15] notes you also took Xanax shortly before offending, which was not prescribed. Your alcohol and drug-affected condition at the time of committing these offences is not mitigatory.
[14] Dr Bonnie Albrecht, Psychology Court Report dated 18 September 2018, [37] (Exhibit C1) (‘Albrecht Report’).
[15] Dated 7 February 2019 (Exhibit D9) (‘Lechner Report’).
15 Significantly, at the time of committing these offences you were subject to a youth parole order, having been released from Malmsbury Youth Justice Centre on 22 January 2018, only some six weeks beforehand.[16] This brings into operation s 16(1A) of the Sentencing Act 1991. According to a report I ordered from Youth Justice,[17] you remain subject to that youth parole order which is due to expire on 17 October 2019. This remains the situation today. I understand Ms Johnson continues to monitor these proceedings and is present in court today.
[16] See Youth Remand History (Exhibit D5).
[17] Anna Johnson, youth justice case manager, Department of Justice and Regulation, North West Metropolitan Area, letter dated 21 September 2018 (‘Youth Justice Letter’) (Exhibit C2). See also the earlier letter by the same author dated 9 July 2018 (Exhibit D4) and the Youth Remand History (Exhibit D5).
Victim impact statement
16 No victim impact statement was made in this case. However, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences regarding the likely impact of an offence upon the victim.
Offence seriousness
17 Aggravated home invasion is a serious criminal offence[18] carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence.
[18] Cf Hogarth v The Queen (2012) 37 VR 658, 667 [34] (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’) citing DPP v Brown (2004) 10 VR 328, 336 [43] (Vincent JA) (‘Brown’). See also R v Siggins [2002] VSCA 97 [19] (Eames JA, Batt JA and O’Bryan AJA) and DPP v El Hajje [2009] VSCA 160 [35] (Maxwell P, Vincent JA and Coghlan AJA).
18 The offence was introduced into Victoria in 2016[19] ‘to capture the most serious instances of home invasions,’ as ‘a necessary response to recent incidents of criminal offending’, and in recognition of the need for ‘governments to make laws which help improve community safety’.[20]
[19] Section 77B was inserted by s 3 of the Crimes Amendment (Carjacking and Home Invasion) Act 2016 which came into operation on 07/12/2016 (SG (No. 375) 6/12/2016 p 1).
[20] Victoria, Parliamentary Debates, Legislative Assembly, 1 September 2016, 3330 (Martin Pakula MP, Attorney-General).
19 The government was ‘very concerned about recent serious criminal offending, which involved breaking into people’s homes’.[21] In the Second Reading Speech, associated with the enactment of the section, the Attorney-General said:
The government is introducing offences and penalties which appropriately reflect the terrifying nature of these crimes. In doing so, the government, and the Parliament, denounce the perpetrators of such crimes in the strongest terms and send a message to the community that such activities will not be tolerated.[22]
[21] Ibid 3329.
[22] Ibid.
20 Later the Attorney-General said:
It is unacceptable for someone to feel unsafe in their own home. It would be even worse to actually be confronted by strangers in what should be a person’s sanctuary. … the effect on victims is … rightly condemned by the introduction of this offence.
…
The community rightly expects that such acts with their traumatic consequences for victims should be punished in a manner consistent with the harm caused.[23]
[23] Ibid 3330.
21 Prior to the enactment of the offence of aggravated home invasion, the Victorian Court of Appeal in Hogarth v The Queen,[24] a case involving a ‘confrontational’ aggravated burglary,[25] said that ‘Home invasion is a particularly nasty form of criminal conduct’[26] and a particularly ‘egregious form of aggravated burglary’.[27] This is particularly so, it was said, where, as here, the offence is premeditated and committed at night.[28]
[24] (2012) 37 VR 658.
[25] Under Crimes Act 1958 s 77(1).
[26] (2012) 37 VR 658, 659 [1] (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’). See also Bonacci v The Queen (2012) 224 A Crim R 194, 195 [1] (Neave, Mandie and Harper JJA).
[27] Hogarth 660 [6].
[28] Brown 336 [43].
22 Clearly, general deterrence, denunciation and just punishment are important sentencing considerations in this case. However, I accept that you played a much lesser role in the offending than some of your co-offenders, that the offences involved little pre-planning, you were not armed with a weapon at any stage and you did not inflict any injuries on the victim.
Applicability of mandatory non-parole period provisions
23 Of particular significance in sentencing you for the offence of aggravated home invasion is the mandatory sentencing provisions which apply to that offence. Pursuant to s 10AC of the Act as in force at the relevant time:
(1) In sentencing an offender (whether on appeal or otherwise) for an offence against section 77B of the Crimes Act 1958, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 3 years unless the court finds under section 10A that a special reason exists.
(2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the offence.
Since you were 18 years old at the time of the offence, this provision applies to you.
24 Relevantly, s 10A provides:
(2) For the purposes of section … 10AC …, a court may make a finding that a special reason exists if—
(b) the offender—
(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and
(ii)proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or
(e) there are substantial and compelling circumstances that justify doing so.
25 In determining whether there are substantial and compelling circumstances under subsection (2)(e), I must have regard to the following considerations under s 10A(3):
(ad)the Parliament's intention that a sentence of imprisonment of not less than 3 years should ordinarily be imposed for an offence covered by section 10AC;[29] and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.
[29] Oddly, despite this provision, by virtue of the operation of ss 11(1) and 11(3) of the Sentencing Act 1991, in the event a mandatory non-parole period of 3 years applies, a minimum sentence of at least 3 years and 6 months’ imprisonment would have to be imposed for the offence.
26 Moreover, pursuant to s 3 of the Act, aggravated home invasion is a ‘Category A serious youth offence’, which means that I cannot make a youth justice centre order unless I am satisfied that ‘exceptional circumstances exist’.[30] I assume this expression is used in the sense explained by Redlich JA, with whom Chernov and Vincent JJA agreed, in R v Ioannou[31] to mean circumstances which are ‘clearly unusual or quite special or distinctly out of the ordinary’. It is not enough to find something which ‘falls within the range of normally anticipated consequences, behaviours or exigencies’.[32]
[30] Sentencing Act 1991 s 32(2C).
[31] (2007) 17 VR 563.
[32] Ibid 568 [17]. See also MAC v The Queen (2012) 34 VR 193, 203 [42]–[44] (Nettle JA, Bongiorno JA agreeing); DPP v Abad [2016] VSCA 279.
27 At the plea hearing your counsel initially relied on your presumed psychosocial immaturity in an effort to engage the operation of s 10A(2)(b) of the Act in your case. However, this position was ultimately abandoned and your counsel only relied on the following facts and circumstances to support a finding that there are substantial and compelling circumstances present in your case:
(1)You are a young offender.
(2)You have reasonable prospects of rehabilitation.
(3)This is your first time in adult custody.
(4)You are particularly impressionable.
(5)You have been and will continue to be subjected to undesirable influences in adult prison.
DPP v Hudgson
28 In DPP v Hudgson[33] the Court of Appeal heard an appeal against sentence involving a charge of intentionally causing serious injury in circumstances of gross violence. The Court observed that ‘an unusual feature’ of this offence is that pursuant to s 10(1) of the Act, a person convicted of that offence must, in the absence of ‘a special reason’, receive a non-parole period of not less than four years. The Court commented that ‘it follows that the head sentence for an offence under s 15A [of the Crimes Act 1958] may well have to be substantially greater than the four year non-parole period specified’.[34]
[33] [2016] VSCA 254 (Weinberg, Whelan and Priest JJA) (‘Hudgson’).
[34] Hudgson [5].
29 The Court continued:
Moreover, the entire sentencing process becomes problematic, and unorthodox, because a sentencing judge may have to start with the non-parole period, and work upwards from there, rather than imposing an appropriate sentence and then deciding what proportion of that sentence should be served before being eligible for parole.[35]
[35] Hudgson [6].
30 In my respectful opinion, this is only the start of the problems created for a sentencing judge by the enactment of this and similar legislative provisions. The sentencing regime created under the Act is intended to operate harmoniously with common law sentencing principles. This is made clear by many of the purposes of the legislation as expressed in section 3 of the Act.
31 Moreover, as the Court in Hudgson accepted when referring to the respondent’s submission:
the Second Reading Speech, associated with the enactment of the section, made it clear that the ‘statutory sentence’, as it was described, would operate ‘together with the usual principles of sentencing as set out in the Sentencing Act and at common law’.[36]
[36] Hudgson [69]. See Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5552 (Robert Clark, Attorney-General).
32 Those ‘usual principles of sentencing’ include proportionality,[37] parsimony,[38] consistency in sentencing,[39] the principles engaged when sentencing a ‘young offender’,[40] and the principles relating to sentencing socially disadvantaged offenders,[41] to name but some of the principles engaged in sentencing you for the present offences
[37] Sentencing Act 1991 (‘SA’) ss 5(1)(a), 5(2)(c). See eg Veen v The Queen (No 1) (1979) 143 CLR 458; Veen v The Queen [No 2] (1988) 164 CLR 465.
[38] SA s 5(3). See eg Milne (1982) 4 Cr App R (S) 397; Taylor (1984) 6 Cr App R (S) 394; Fyfe (1985) 40 SASR 120; Skipper (1992) 64 A Crim R 260 (CCA WA); Crawley (1981) 5 A Crim R 451 (FCA) at 456.
[39] SA s 5(2)(b). See eg R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520.
[40] SA s 3(1). See eg R v Mills [1998] 4 VR 235; DPP v Lovett [2008] VSCA 262; CNK v The Queen (2011) 32 VR 641; Azzopardi v The Queen (2011) 35 VR 43; DPP v Ghazi (2015) 45 VR 852.
[41] See eg Bugmy v The Queen (2013) 249 CLR 571.
33 In my opinion, in considering whether your circumstances are ‘substantial and compelling’ such as to constitute ‘a special reason’ for not applying s 10AC of the Act in your case, I am entitled to have regard to how common law sentencing principles, not expressly abrogated by the Act, apply in sentencing you for the present offences.
34 In Hudgson the Court opined that:
It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.[42]
[42] Hudgson [111].
35 The Court also accepted the Director’s submission that the word ‘compelling’ ‘connotes powerful circumstances of a kind wholly outside what might be described as “run of the mill” factors, typically present in offending of this kind.’[43] The Court also referred to the need to demonstrate circumstances which are ‘rare’ or ‘unforeseen’ in cases of the type before the sentencing court.[44]
[43] Hudgson [112].
[44] Hudgson [115] alluding to what was said by the Attorney-General in the Second Reading Speech when he introduced the Crimes Amendment (Gross Violence Offences) Bill 2012. See Hudgson [109].
36 Ultimately, I am of the view that special reason exists for not sentencing you as required by s 10(AC) of the Act. In my opinion, when viewed cumulatively, the circumstances you rely upon are substantial and compelling circumstances that justify me so finding under s 10(A)((2)(e) of the Act. I am fortified in this view by the very fair position taken by the Director who ultimately submitted that her position was that it was open to me to find that substantial and compelling reasons exist in your case.[45]
[45] See email from Amelia Keath, a solicitor employed by the Office of Public Prosecutions, dated 7 May 2019 (Ex C6).
Personal circumstances
37 You are aged 19 years and you were 18 years old at the time of committing the offences. You were born in Sudan and moved to Egypt when you were two years old to escape the war in Sudan. You migrated to Australia with your family in 2004 when you were four years old. You are an Australian citizen.
38 You are the eldest of four children. You had a difficult upbringing, which was punctuated by prolonged exposure to domestic violence. Regular violence occurred between your parents and you were assaulted by your father if you tried to intervene to protect your mother.
39 Your parents separated when you were about 12 years old, however your father briefly returned to the family home when you were aged 14 years. The ensuing violence impacted on you, and it is around this time that you spent less time at home and at school. You do not have an ongoing relationship with your father.
40 Despite this background, your mother remains a positive influence in your life. Your family continues to support you and you are able to return to Fitzroy to live with your mother and siblings upon your release from custody. You have had regular contact with family members whilst in custody and your mother was present in court supporting you during the plea hearing, and I see she is present today.
41 Whilst in the community, your schooling was marred by your continuing truancy and involvement in criminal behaviour; nonetheless, you managed to complete Year 10. Your involvement with others who engage in antisocial behaviour has reinforced this behaviour in you. You have since completed Year 11 VCAL at Parkville College whilst you have been in custody. I have read the excellent monthly progress report dated 26 June 2017 from Parkville College, which was tendered on the plea.[46]
[46] Exhibit D6.
42 During your most recent release on youth parole, you commenced a tiling apprenticeship at TAFE. As a consequence of the time you have spent in custody over the years, you have no formal employment history.
Substance abuse and mental health
43 Your substance abuse began when you were 15 years old, when you had a negative hallucinogenic experience after trying cannabis and did not resume cannabis use for nearly a year. You subsequently resumed smoking cannabis on a daily basis.
44 You started consuming relatively large quantities of alcohol when you were 16 years old, but this consumption decreased as your drug use escalated.
45 You smoked methylamphetamine prior to your offending in 2016. You reported occasional cocaine use since you were 17 years old, often in the context of poly-substance abuse. Since 2017, you have also misused prescription medication multiple times per week, specifically codeine and Xanax, to aid sleep. You have undergone some pychoeducational drug and alcohol programs whilst in custody and you deny using any illicit substances whilst you have been in custody in relation to the present offending.
46 Despite not having any prior involvement with public mental health services, you were assessed by a psychologist when you were 14. You developed coping strategies following psychological intervention for anger management when you were 16 years old. You learnt strategies to manage physiological changes but this only assisted you in coping with minor anxiety or anger-provoking situations.
47 At the time of seeing Dr Albrecht you had not been formally diagnosed with any mental health condition. She found no evidence of perceptual disturbance or formal thought disorder or significant deficits in cognitive functioning.
48 However, you were subsequently assessed by Ms Carla Lechner who opined as follows:
Koun currently presents with symptoms of Cannabis Use Disorder – in early remission in a controlled environment. He has also abused a range of other illicit drugs and alcohol. He has symptoms of Major Depressive Disorder (DSM 5) that whilst partly reactive to his current situation, is also reflective of feelings about his life in general. In addition, he has symptoms of Complex Developmental Trauma and features of Post-Traumatic Stress Disorder, the latter arising from a motor-car accident in 2017 in which his cousin almost died.
It the context of these interacting factors, it is my view that Koun is particularly immature for a youth of his age hence despite his many positive qualities, outlined in reports and references, he still struggles to see the “bigger picture” beyond his immediate needs within his peer network.
Koun appears to be gaining improved perspective whilst in adult custody with some signs of maturation emerging. Upon his release from prison, he will benefit from a range of therapeutic interventions that focus on the issues outlined above. A lengthy period of custody is likely to have a detrimental impact on his mental health in terms of his ability to have hope for his future and to access the treatment supports that he needs.
49 Ms Lechner administered the Wechsler Abbreviated Scale of Intelligence – Second Edition to determine your level of cognitive functioning. Your performance places you in the “borderline/low average” range of intelligence with approximately 91% of the adult population performing better (IQ=76, range 75-87 at 95% confidence limits). There was no significant difference between your Verbal Comprehension Index and your Perceptual Reasoning Index. You have a concrete rather than conceptual thinking style. You are thus inclined to interpret the world around you in a subjective manner and may have difficulty taking perspectives other than your own or seeing ‘the bigger picture’.
50 Ms Lechner also administered the Beck Depression Inventory. Your score fell into the ‘extreme’ range, this being consistent with your presentation at interview and a diagnosis of clinical depression.
51 Despite the opinion of Dr Albrecht that she found no evidence of you suffering from a major mental disorder, in light of the psychometric testing conducted by Ms Lechner, I find on the balance of probabilities that Verdins principles 5 and 6[47] are engaged in your case, so far as your reactive depression and post-traumatic stress disorder are concerned.
[47] R v Verdins (2007) 16 VR 269.
52 In late 2016 or early 2017, your cousin nearly died as a result of a car accident. You recall holding her as she was struggling to breathe and that there was a lot of blood. This experience continues to impact on you and cause you to suffer from sleep disturbance and regular thoughts and flashbacks to this event. Whilst in the community, you used drugs and alcohol to avoid these intrusive thoughts and to assist you to sleep.
53 Whilst in custody you have also been exposed to violence. You described having an anxiety attack when a fellow prisoner was stabbed. You withdrew and waited in your room for two hours until your physiological changes stabilised. Since then you reported hyper-vigilance to indicators of violence.
54 You also reported intermittent periods of sadness related to thoughts of your mother and your inability to help care for your siblings. These last for a couple of hours, during which you struggle to get out of bed, are tearful, and feel that you have ‘nothing to look forward to’.
55 You reported to Dr Albrecht that you are ‘persuaded easily’ by others when drug-affected. She considers that you have responded to the violence in your life with ‘poorly managed anger and delinquency.’ This behaviour was reinforced by ‘an increasingly antisocial network’ and your criminal behaviour ‘escalated in their company’. Your accompanying substance use occurred in the context of your antisocial peers as well as self-medication.
56 Dr Albrecht conducted a risk assessment using Historical, Clinical, and Risk Management Violence Risk Assessment Scheme, Version 3 (HCR-20V3). Dr Albrecht found no evidence of personality disorder or major mental disorder. She assessed you baseline risk of violence as being ‘high’. There was no evidence of ‘cognitive instability’. Although she found no evidence of Major Mental Illness as defined by the HCR-20v3, there was clear evidence of ‘ongoing trauma-related symptomology’.
57 Dr Albrecht concludes as follows:
The constellation of static and dynamic factors present suggests that Mr Dador is currently of Moderate risk of future violence. However, his risk of violence may be somewhat increased in a community setting, given the greater presence of destabilizing influences. Factors of dynamic relevance to his risk of violence include antisocial peer group, shared drug use, and ongoing difficulties managing trauma symptoms.
Ms Lechner did not disagree with these findings.
58 I had you assessed for suitability for a community correction order. According to the extended pre-sentence assessment - outcome report dated 26 March 2019 (‘CCO Assessment Report’),[48] you were assessed using the Level of Service Risk Need Responsivity Assessment tool as a high risk of general re-offending. You presented with a number of criminogenic needs at a very high level.
.
[48] Exhibit C5.
59 Ms Lechner was specifically requested by your legal representatives to address the question whether you ‘have a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his behaviour in comparison with the norm for persons of that age’. An affirmative answer to this question would constitute a ‘special reason’ for not imposing a three-year mandatory non-parole period in your case.[49] She responded in the following terms:
[49] See Sentencing Act 1991 s 10A(2)(b) as then enacted. This provision was repealed by s 79(2) of the Justice Legislation Miscellaneous Amendment Act 2018, which commenced operation on 28 October 2018. The effect of the transitional provision is this repeal does not operate in your case (see Sentencing Act 1991 s 168(6)).
It is fair to say that fluctuation in the ability of teenagers to think rationally and to regulate their behaviour and emotions is quite normal. In Koun’s case however there are multiple factors that potentially impact on, and inhibit his rate of development, this rendering him to have a “substantially diminished ability to regulate his behaviour” in comparison to same-age peers. These include his history of complex trauma, more recent traumatic events that have resulted in post-trauma symptoms, substance abuse and some cognitive deficits. Koun has not yet established a firm sense of identity or belonging and needs support to do this in a pro-social manner. His ability to evaluate the risks involved in his offending behaviour and his capacity to put his long-term needs before the immediate needs of peer group membership appears impaired when compared with age cohorts. My extensive experience in working with juvenile offenders through more that twenty years as a consultant psychologist to the Victorian Children’s Court has given me good insight regarding the fluctuations is adolescent development. It is my view that Koun is at the less mature end of that developmental curve.
Dr Albrecht was unable to express any opinion on the question.[50] Accordingly, your counsel withdrew her reliance on this category of ‘special reason’. Nonetheless, Ms Lechner’s opinion remains relevant to my determination of whether there are ‘substantial and compelling reasons that justify’ me in not imposing a mandatory non-parole period in your case.[51]
[50] See Dr Bonnie Albrecht, Psychology Court Report, Addendum Letter, dated 28 November 2018 (Exhibit C4).
[51] Under Sentencing Act 1991 s 10A2(e).
60 I also ordered a report regarding your past involvement with Youth Justice.[52] They assess that your offending has occurred in the context of an extensive trauma history including exposure to significant family violence, negative peer influence, substance use, boredom, and a lack of consequential thinking, anger management, emotion regulation and problem solving skills. Given your previous involvement with Youth Justice, they facilitated visits and phone calls to you whilst you have been at Port Phillip prison. You have reported that you are coping well in the adult custodial setting and you have not reported any issues.
[52] Exhibit C2.
Prior criminal history
61 You have a brief but significant prior criminal history which dates back to 2016. According to your self-report, most of your prior offending occurred in the context of your involvement with antisocial peers. This offending was often followed by shared poly-substance abuse. You told Dr Albrecht that on most past occasions there was no leader as such, but that you and your co-offenders made decisions together. You denied perpetrating actual physical violence in the past, but accepted there were occasions where you were complicit in violence perpetrated by others. This history is consistent with my viewing of the CCTV footage of your involvement in the present offending. Nonetheless, the information you gave Dr Albrecht demonstrates you have engaged in relatively minor assaultive conduct in the past.
62 You first appeared at the Children’s Court at Melbourne on 29 September 2016 for a range of offences including dishonesty and driving offences. The more serious offences included aggravated burglary, assault in company, robbery and driving at a dangerous speed causing serious injury. You were sentenced to a youth attendance order for 9 months.
63 A chart outlining your youth remand history was tendered on the plea before me.[53] I was told you spent 139 days on remand prior to your being sentenced on 29 September 2016, which was not declared as PSD. This was because you were released on a non-custodial order. Your counsel accepted this was not Renzella time,[54] in either the narrow or broader senses, however, it is generally relevant to your personal circumstances. You later spent time in 2016 and 2017 in the Grenville Unit of Barwon Prison as a result of the MRC riots.
[53]Exhibit D5.
[54]R v Renzella [1996] 2 VR 88.
64 You appeared before the Children’s Court at Melbourne again on 21 August 2017 charged with breaching the youth attendance order and committing further offences. Those offences comprised: aggravated home invasion, aggravated burglary, attempted aggravated burglary (2 charges), armed robbery (3 charges), attempted armed robbery (3 charges), burglary (3 charges), criminal trespass, theft (6 charges), attempted theft, affray, unlawful assault (2 charges), intentionally damage property and commit indictable offence whilst on bail (4 charges). You were convicted and ordered to be detained in a Youth Justice Centre for an effective total term of 33 months. For charges of state false name and state false address you were convicted given an aggregate fine in the sum of $50. A charge of possess cannabis was found proven and dismissed.
65 As I observed earlier, you were released on youth parole on 22 January 2017. The fact the present offences were committed in breach of parole is an aggravating factor of your offending and is relevant to your personal circumstances and, in particular, to my assessment of your prospects of rehabilitation.[55]
[55] Haddara v The Queen (2016) 260 A Crim R 306, 327 [83] (Redlich, Priest and Beach JJA). See also R v Basso & Frazzetto (1999) 108 A Crim R 392, 397–8 [21]–[26] (Chernov JA, Batt JA agreeing), 404–5 [57]–[63] (Charles JA, Batt JA agreeing); R v Gray [1977] VR 225, 229–30 (McInerney and Crockett JJ); R v Schwab (1989) 42 A Crim R 1, 3 (Young CJ, O’Bryan and Gray JJ agreeing); DPP (Vic) v BGJ (2007) 171 A Crim R 74, 83–4 [45] (Eames JA, Buchanan AP and Vincent JA agreeing).
66 You have no subsequent offences and no outstanding matters are pending.
Assessment of your character and prospects of rehabilitation
67 You have completed a number of courses and other programs whilst in youth custody and more recently. Dr Albrecht notes that whist in youth custody ‘various professionals have indicated that [you have] been actively engaged in programs and a positive role model for other youths’. This is a reference to a letter dated 2 July 2018 from Ms Emily Hurley, lead teacher at Parkville College[56] and a letter dated 8 June 2018 from Mr Jarrod Stirling, a teacher at Parkville College.[57] They both speak very highly of your good character and your commitment to your rehabilitation.
[56] Exhibit D2.
[57] Exhibit D3.
68 Ms Auger N Athian, a ‘Breakfast Club/Parent school Connect Coordinator’ with the Brotherhood of St Laurence working in the Fitzroy area, who has known you for over eight years, provided a glowing assessment of your good character.[58] She is aware of the present offences and opines:
Koun is at a crossroad in his life – he has huge potential to contribute positively to our society if he is given another chance. Koun is young leader and a very positive influence to this community, very well respected by both young and old. He is resilient and will always thrive for better
[58] In a letter dated 6 July 2018 (Exhibit D7).
69 This is in stark contrast to the less than flattering contents of the report of Ms Anna Johnson, a youth justice case manager at the North West Metropolitan Region of the Department of Justice and Regulation, dated 21 September 2019, which I requested.[59] I have also had regard to the contents of the affidavit of Mr Brendan Francis Money sworn 14 November 2018,[60] but only in so far as it is relevant to my assessment of your general character, prospects of rehabilitation and the onerousness of the circumstances under which you are being held in custody on remand.
[59] Exhibit C2 (‘Youth Justice Report’).
[60] Exhibit C3.
70 It seems clear that whilst you have been in adult custody your have ‘gone off the rails’ to a quite concerning extent. I accept this is probably symptomatic of your immaturity and am inability to stand up to older and more institutionally entrenched prisoners. I will not give this misbehaviour great weight; rather, I will sentence you on the basis that, given the right circumstances and support mechanisms, you are reclaimable and capable of rehabilitation.
71 Moreover, your status as a ‘young offender’ requires me to impose a sentence which will promote your rehabilitation, if that avenue is open to me as a matter of law. Indeed, had you been a little younger at the time of committing these offences you would, in all likelihood, have been sentenced in the Children’s Court under an entirely different sentencing regime.[61]
[61] See Children, Youth and Families Act 2005, Chapter 5.
72 Dr Albrecht in her report opined that you demonstrated insight into your pattern of offending and substance use, and displayed good judgement in identifying appropriate treatment and supervision needs and a willingness to engage. According to Dr Albrecht, you reflected on being stuck in a cycle and that you need to make changes in your lifestyle and criminal behaviour or else you ‘would not go anywhere in life’. You identified the need to abstain or reduce substance use, and keep busy by entering the workforce and helping your mother. Dr Albrecht opined that you are likely to require intensive support and intervention targeting your capacity for assertiveness and adaptive coping to achieve change. You remain vulnerable to the influence of antisocial others, particularly when pressured and given your sensitivity to being judged about your trauma responses. The CCO Assessment Report also observes that you ‘present as a vulnerable individual who struggles with self-regulation and is easily influenced by his peers’.[62]
[62] Exhibit C5.
73 You told Dr Albrecht that you want to enter the workforce upon your return to the community. You also expressed a willingness to re-engage with psychology and that you would benefit from having someone to talk to. This all augers well for your future prospects of rehabilitation.
74 It appears that in the past you have demonstrated good character and that you have the capacity to be a respected youth leader and role model. With intense assistance you may be able to regain that standing. Accordingly, while an assessment of your prospects of rehabilitation is somewhat problematic given your appalling criminal history, I am prepared to find they are reasonably good, provided you remain drug free and cease contact with previous antisocial acquaintances once you are released from custody.
Mitigating circumstances
75 You pleaded guilty on 9 July 2018 at a relatively early stage in these proceedings. The matter proceeded by way of a straight hand-up brief at a committal mention held in the Magistrates’ Court on 5 June 2018.
76 Your plea of guilty has objective utilitarian benefit as well as a subjective quality, in the sense that it indicates your acceptance of responsibility for your offending conduct and a willingness on your part to facilitate the course of justice. Accordingly, you will receive a significant discount from the sentence I would otherwise have imposed in respect of these offences.
77 Ms Lechner opined that you express regret for your actions and empathy for the victim. I accept this is so, having regard to the contents of the letter you wrote to the victim of the aggravated burglary apologising for your part in committing the offences.[63] I accept your expressions of sympathy for him are sincere.
[63] Exhibit D8.
78 In light of all the material before me, including the admissions you eventually made in your record of interview, I am prepared to sentence you on the basis that you demonstrate a moderate degree of true contrition and remorse for your offending conduct. In this context I note the observation of the author of the CCO Assessment Report that you ‘Currently, Mr Dador can retrospectively articulate remorse for his actions’.[64]
[64] Exhibit C5.
79 Your young age is a significant sentencing consideration despite your appalling prior criminal history.
80 Since early 2016, you have spent a significant period of time in youth detention and adult custody. Some of this time was spent in the Grevillea Unit at Barwon Prison, despite you being a child at the time.[65] I accept your time in custody has been somewhat more onerous on you than it might otherwise have been, but some of this has been caused by your bad behaviour.
[65] See Youth Remand History (Exhibit D5).
81 You reported to Ms Lechner that ‘being in adult custody has given [you] a better perspective on [your] future and a strong desire to stay out of trouble’. I hope this is true — only time will tell. However, I am prepared to sentence you on the basis that you are gaining insight into the causes of your offending and have a desire to rehabilitate yourself.
82 There has been some delay in this case for reasons which are not attributable to you. A number of reports and assessments, both court ordered and defence requested, have been necessary for me to be as well-informed as possible regarding your circumstances before passing sentence on you. This was particularly so in light of the mandatory non-parole period provisions which might have applied to you. Unfortunately, the lead times for these reports have been quite excessive in the circumstances.
83 I will take the effects of this delay into account in your favour. You have spent a lengthy period on remand, and have had this matter hanging over you. I accept this has caused you a significant degree of anxiety.
Application of sentencing principles
84 I have had regard to current sentencing practices in relation to the charges before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[66] Neither the Crown nor your counsel referred me to any comparable cases.
[66] (2017) 91 ALJR 1063.
85 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
86 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 and your personal circumstances.
87 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
88 General deterrence is a very important sentencing consideration for the offence of aggravated home invasion.[67] The offence is prevalent in the community and, the link between prevalence and general deterrence is self-evident.
[67] Nguyen 330 [139]–[140].
89 Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community also need be given some weight in light of your prior criminal history and the fact you were on parole for similar offending at the time of committing these offences.
90 I accept you have reasonably good prospects of rehabilitation if on your release from custody you remain drug free and do not associate with you previous anti-social friends and acquaintances.
91 Because my sympathies have been excited by the circumstances of this case,[68] I am also prepared to extend a degree of leniency towards you in accordance with the residual discretion of mercy.
[68] See R v Osenkowski (1982) 30 SASR 212, 212–13 (King CJ); Markovic v The Queen (2010) 30 VR 589, 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA).
92 As I earlier indicated, I find that special reason exists, because there are substantial and compelling circumstances that in combination justify me doing so, for not imposing the otherwise statutory mandatory non-parole period provided for the offence of aggravated home invasion. These circumstances include:
(a) your young age;
(b) you are a ‘youthful offender’;
(c) common law principles would otherwise require that I impose a sentence which maximises you prospects for rehabilitation;
(d) you pleaded of guilty at an early stage in the proceedings;
(e) you demonstrate true contrition and remorse and victim empathy;
(f) you had a socially disadvantaged upbringing;
(g) you have suffered a degree of custodial hardship during your first experience in an adult gaol;
(h) you are impressionable and easily led astray by more hardened criminals;
(i)You present as a vulnerable individual who struggles with self-regulation and is easily influenced by your peers;
(j) you played a lesser role in the offending than your co-offenders;
(k) you have reasonably good prospects of rehabilitation, if you remain drug free and avoid anti-social influences;
(l) a number of protective factors are present in your case, including a supportive family;
(m) you have shown an ability in the past to engage in rehabilitative measures, including education;
(n) you have a number of excellent and highly supportive character references;
(o) Verdins principles 5 and 6 are engaged in your case;
(p) there has been some delay in finalising this matter, which has had an adverse psychological effect on you;
(q) in all the circumstances there is a proper basis to extend a measure of leniency towards you under the residual discretion of mercy.
93 I have received an extended pre-sentence assessment – outcome report dated 26 March 2019 which says you have been found suitable for a community correction order. A number of program conditions are recommended.
94 So far as the unexpired term of the sentence you received in Melbourne Children’s’ Court on 21 August 2017 is concerned, I will order that the sentence I impose on you today is to be served concurrently with any such term you may be required to serve.
Stand up Mr Dador
On the charge of aggravated home invasion (charge 1) you are convicted and sentenced to 789 days’ imprisonment together with a three-year community correction order with the terms and conditions I will shortly detail to you.
On the charge of theft (charge 2) you will convicted and sentenced to three months’ imprisonment.
On the related summary offence of assault with a weapon (charge 8) you will convicted and sentenced to be one month’s imprisonment.
I direct that the sentences imposed on charge 2 and related summary charge 8 be served concurrently with the sentence imposed on charge 1 and with each other.
This makes a total effective sentence of 789 days’ imprisonment.
I order that you serve a minimum of 544 days’ imprisonment before becoming eligible for parole. (This means with PSD you have 120 days or 4 months left to serve before becoming eligible for parole).
I order that the sentences I have imposed on you today are to be served concurrently with any unexpired sentences you are required to serve and any sentences you are currently undergoing.
I declare 424 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made and its details be noted in the records of the court.
As the unserved portion of the sentence I have imposed on you is twelve months’ imprisonment, I further order pursuant to s 44 of the Sentencing Act 1991 that upon your release from custody you serve a community correction order for a period of three years with the following conditions:
S 48C 600 hours of unpaid community work.
S 48CA All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.
S 48E Supervision for three years.
S 48D(3)(a) Assessment and treatment (including testing) for drug abuse or dependency.
S 48D(3)(b) Assessment and treatment (including testing) for alcohol abuse.
S 48D(3)(e) Mental health assessment and treatment.
S 48D(3)(f) Programs that address offending behaviours.
S 48K(1) Judicial monitoring, You must appear before me on Tuesday 10 December 2019 at 9.30 am.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your pleas of guilty would have been a sentence of 4 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
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