Director of Public Prosecutions v David
[2023] VCC 565
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01551
CR-22-01552
CR 22-01553
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAUTOKE JONES ASH WONGLING CHARLIE DAVID |
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| JUDGE: | HIS HONOUR JUDGE KELLY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 February 2023 |
| DATE OF SENTENCE: | 5 April 2023 |
| CASE MAY BE CITED AS: | DPP v David & Ors |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 565 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – Damaging property – Theft – Youthful offenders – Disparate criminal histories – Risks of deportation
Legislation Cited: Crimes Act 1958 (Vic)
Cases Cited:R v Duncan [1998] 3 VR 208; R v Mills [1998] 4 VR 235; Guden v R [2010] VSCA 196; Azzopardi v R (2011) 35 VR 43; Hogarth v The Queen [2012] VSCA 302; Bugmy v The Queen [2013] HCA 37; Boulton v The Queen [2014] VSCA 342; DPP v Meyers [2014] VSCA 314; Konamala v The Queen [2016] VSCA 48 & Worboyes v The Queen [2021] VSCA 169.
Sentence:11 months imprisonment and a community corrections order of 3 years duration (Ash Wongling); 7 days imprisonment and a community corrections order of 3 years duration (Charlie David); 11 months imprisonment and a community corrrections order of 3 years duration (Kautoke Jones).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Bristrow | Office of Public Prosecutions |
| For the Accused Jones For the Accused Wongling For the Accused David | Mr T Brown Ms M. McDonald Mr J. Lavery | Chris McLennan & Co Stary Norton Halphen Criminal Lawyers |
HIS HONOUR:
1Ash Wongling, you have pleaded guilty to one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (Vic) (‘Crimes Act’), one charge of intentionally damaging property contrary to s 197(1) of the Crimes Act, and one charge of theft contrary to s 74(1) of the Crimes Act.
2Charlie David and Kautoke Jones, you have each pleaded guilty to
one charge of aggravated burglary and one charge of intentionally damaging property under sections 77 and 197, respectively.3The maximum penalties for these offences are - for aggravated burglary,
25 years’ imprisonment, for intentionally damaging property, 10 years’ imprisonment, and for theft, 10 years’ imprisonment.
Circumstances of offending
4The circumstances of your offending are summarised in the prosecution opening for plea. At 2:22 pm on 6 March 2022, the three of you attended Werribee Plaza Tavern and drank alcohol for several hours.
5Later that day, at about 10:00pm, the three of you went to an address on Hogans Road, Hoppers Crossing. This is the home address of Ina Clifton Teariki. At that address, the three of you picked up Teariki and his nephew, Terae Kiikoro McCarthey. Teariki and Kiikoro McCarthey drove with you to Williams Landing and parked in Stoneleigh Circuit. You used two vehicles.
6At about 11:16pm that night you walked from Stoneleigh Circuit to the
Williams Landing address. Teariki and Kiikoro McCarthey remained in the vehicles for the remainder of the incident.7A fourth offender was then with you. He was 17 years of age at the time and had been dealt with in the Children's Court of Victoria. With this co-offender, the three of you forced your way into the Williams Landing address, ripping the security door from its hinges and kicking in the front door.
8That address is home to Kaleb Hemi-Pahi. You intended to assault him but he was not in, although his housemate, Celia Leonie was. Leonie is the victim in this matter. Two of you were carrying machetes but it is not known which of you carried them.
9Once inside, you demanded to know where Hemi-Pahi was. You ran through the house searching for Hemi-Pahi kicking and punching holes in the walls. Mr David, you cut your hand open punching a hole in the wall. The value of the damage caused to the house was $23,474.
10You, Mr Wongling, entered the garage and stole a black JBL speaker,
black camp stove and a Wi-Fi modem. These items belonged to Whytnee Lundberg. None of the other offenders assisted you in this endeavour.11At about 11:29pm, the three of you and the other co-offender returned to the vehicles and drove away. The victim, Leonie, fled the Williams Landing address and sought refuge in a nearby house. The occupant of that house called Triple-0.
Personal circumstances – Ash Wongling
12Mr Wongling, I turn now to your personal circumstances, which were summarised in the report of Dr Loretta Evans tendered at your plea.
13You were born in New Zealand and immigrated to Australia when you were seven years old. You are the second youngest of five children and you speak positively of your childhood. Your parents and two of your siblings now live in New Zealand while you remain in Melbourne with relatives and your partner, Khaedyn.
14You attended The Grange Primary School and at the completion of Year 8, transferred to Wyndham College where you stayed for two years. You left high school after Year 10, having to repeat that year.
15After leaving school, you maintained a steady work history. You worked for two years in warehousing before transitioning to an apprenticeship as a boilermaker at around the age of 19. Before being placed on remand, you were working five days a week as a boilermaker.
16You maintain a strong relationship with your family in Melbourne who offer you great support. You have been in a healthy long-term relationship with your partner Khaedyn for the past four years and have had periods of living with her and her mother.
17In your adolescence, you displayed self-harming behaviours that ceased a number of years ago. At age 15, you commenced using cannabis and
two years later became dependent on alcohol, drinking bourbon and beer almost every day. This pattern of consumption eventually settled to weekend-only drinking as you grew older. This pattern continued until your remand.18Prior to your arrest, you were using a combination of MDMA and benzodiazepines on a weekly basis. You first appeared before the Melbourne Children's Court in March 2018 and since this time, you have been charged with numerous offences.
19In February 2017, the Department of Families Fairness and Housing conducted a target group assessment at the request of the
Melbourne Children's Court. You were deemed eligible to receive disability services. A statement of intellectual disability was issued on
21 February 2018 to that effect.20In 2014, you were neuro-psychologically assessed by Dr Frank Mascaro. He identified cognitive deficits consistent with the presence of a mild intellectual disability. However, you do not accept his diagnosis, apparently.
21A psychological report was prepared by Dr Loretta Evans on 14 November 2022. She notes that you were significantly substance affected at the time of this offending. She considers that mood symptoms may have contributed to your thinking processes, but opines that there is no confirmed psychiatric evidence to indicate such elements were present in your offending.
22She therefore concludes that acute alcohol and drug intoxication were the dominant features of your criminal behaviour. Dr Evans noted that you did not display any evidence of perceptual disturbance or disordered thought and do not appear to have a formal psychiatric history.
Personal circumstances – Charlie David
23Now to you, Mr David. Mr David, I take your personal history from the report of Ms Gina Cidoni that was tendered on your plea.
24You were born in Williamstown and raised in Werribee by your parents until their separation when you were aged 12. Your parents' relationship was initially good and you are particularly close to your mother. Your parents are from the Cook Islands. You were the only child of this relationship but have five half-siblings from your mother's previous relationship.
25Your mother, Raita Konito Pakoti, gave evidence on your plea and told the court that your father was harsh and struggled to control his anger. He punished you with excessive force and was physically abusive of her. You witnessed this abuse. Your mother told the court that your father beat you from the time you were very young. She described him as a big, powerfully built man, who practised martial arts and bodybuilding. He used his fists and feet on you and if she intervened, he turned on her. She said you refused to cry when struck by your father unless the beating was especially severe.
26Although physical violence was, on average, a fortnightly occurrence, your mother indicated that you suffered mental abuse on a daily basis and that your father never had a kind word for you.
27After their separation, your mother returned to the Cook Islands and your father refused to let you go with her. Your mother paid for you to come visit as often as your father would allow. You returned with your father to the
Cook Islands two years later and the family violence grew increasingly worse.28When you were aged 14, your father moved to New Zealand. You then
lived with your mother and sisters in Tarneit. You attended Grange and
West Grove Primary Schools and Wyndham Central College. You subsequently commenced Year 11 at Tarneit Secondary College, however, you left shortly after commencing.29You received average academic grades and often found school work difficult. You were bullied by peers from Grade 2 and suspended three times due to truancy, physical fights and talking back to your teachers.
30You had a period of unemployment for one year after you left school. From age 17 to 19, you were unloading containers but you were let go in 2019. You hoped to obtain your forklift licence.
31You believe that you have suffered with anxiety since childhood and have been exposed to many traumatic experiences, including your father's violence, and friends who have died in motor vehicle accidents.
32You began consuming alcohol at the age of 14 but reported it was never problematic. You began to use cannabis from age 15 and from age 17, your use increased to 7 grams daily until you ceased use in December 2021.
33From age 18, you experimented with other drugs, including MDMA, amphetamines, cocaine, Xanax, and hallucinogens, including LSD and psilocybin.
34From March 2022, you were using up to three pills of Xanax every weekend.
35In the psychological report prepared by Ms Gina Cidoni dated 20 October 2022, the clinical evaluation indicated that you suffer from persistent depressive disorder, social anxiety disorder and substance use disorder.
36As to your current circumstances, your mother says that since entering the CISP program, she has noticed a change in you. You have become a much softer, more open and gentler person with your nieces and nephews who no longer fear you but come running to you when you arrive home.
Personal circumstances – Kautoke Jones
37Now to you, Mr Kautoke Jones. Mr Jones, your history was canvassed extensively in the submissions of your counsel Mr Brown and in the report of Ms Pamela Matthews dated 3 March 2023.
38You are of Maori and Tongan heritage and are the oldest of seven children. You were born to teenage parents who, due to their youth, were unable to raise you and left you in the care of your maternal grandparents and an aunt who was like a sister to you.
39You noted to Ms Matthews that this upbringing left you confused and that you felt abandoned and unloved by your parents. You reported that your grandparents were alcoholics and that your grandfather often spent extended periods of time out of the home. As a result, you were often hit and kicked out of your grandparents' house by your grandmother in order to find and return your grandfather to the property. Eventually, your grandparents divorced. You have had no contact with your grandfather since.
40You moved to Werribee with your aunt to live with your parents and siblings. You found it difficult to adjust to the new family setting and felt like ‘the black sheep’.
41Although well liked in primary school, you found learning difficult. This caused frustration and you were readily distracted, often forgetting to bring essential equipment to school. At one stage, you were suspended for fighting and smoking.
42You spent a total period of 18 months in high school. You were expelled from Hoppers Crossing Secondary College for smoking, fighting and bringing a knife to school. You then spent six months at Alamanda College before you stopped attending school.
43From around the age of 15, you began to run away from home, living on the streets. You also began to drink alcohol and quickly progressed to daily cannabis consumption and the use of methylamphetamine. I am told that you began to hang out with a gang which pressured you to commit crimes for them.
44At some point during your adolescence, you were diagnosed with schizophrenia, anxiety and depression.
45You were eventually detained at a youth justice centre and, following your release in 2020, you reported that you were making progress in your rehabilitation. You had obtained employment as a steel fixer. You were consistently seeing mental health workers and you had begun a relationship.
46Things took a turn for the worse following the death of your aunt, after her battle with cancer. Your drinking spiralled out of control, you consumed Xanax every second day and MDMA on weekends while socialising. You report that this increase in consumption was 'the only way you felt you could deal with your loss' - the loss of your aunt.
47As to your current circumstances, you reported to Ms Matthews that you were suffering from hip pain which required an x-ray but you had also put on weight whilst on remand and have been working out at the prison gym most days.
48Your access to rehabilitative or educational programs has been limited due to being in custody. However, you have apparently completed an operations course and certificates were filed with the court overnight confirming your completion of these courses.
49You also report that you are off the drugs and that you do not have anxiety or depression anymore. Further, that you no longer hear voices and feel a lot more like yourself.
50Now to the submissions made for each of you. Firstly, to Ash Wongling.
Plea submissions – Ash Wongling
51I turn now to the submissions put before the court. Mr Wongling, Ms McDonald submitted on your behalf that the offence of aggravated burglary is inherently serious and that this offending included a number of aggravating features which are appropriately cause for concern to the court and to the community.
52However, Ms McDonald contended that the offending did not involve a high degree of planning or sophistication. It was committed in the context of excessive consumption of alcohol and illicit substances. The offending did not involve any physical assaults or injuries.
53In sentencing on all three charges, Ms McDonald submitted that the court must also be careful to avoid doubly punishing you for the charge of aggravated burglary and the offences committed once inside the premises.
54Ms McDonald submitted that you are a youthful offender and that, as the case of Azzopardi observes, youthful offenders may be immature, more prone to rash decisions and may lack self-control.[1] The well‑established principles in R v Mills were relied upon in emphasising the importance of your rehabilitation as a sentencing principle.[2] Those principles must be appropriately tempered by considerations of general deterrence and denunciation where the offending is objectively grave.
[1] See Azzopardi v R (2011) 35 VR 43, 54 [34].
[2] See R v Mills [1998] 4 VR 235, 241.
55Ms McDonald also noted your early plea of guilty and submitted that this warrants a significant discount in sentence.
56Despite your less than full and frank admissions in the record of interview, Ms McDonald submitted that you did accept that you were present at the time of the offending and that you more recently expressed genuine remorse and responsibility for your offending.
57It was also submitted that the risk of deportation should mitigate your sentence in two ways. Firstly, the additional hardship occasioned by the uncertainty of not knowing whether you will be deported upon your release from custody makes any sentence you undergo more burdensome. And secondly, the additional punishment of being denied the opportunity to settle in Australia in the event that you are deported upon your release from custody.
58Ms McDonald submitted that you have good prospects of rehabilitation if you can be provided with the necessary supports. Ms McDonald raised the fact that you have family support and a committed partner and that you have no antisocial personality traits or cognitive impairments.
59Ms McDonald relied on the opinion of Dr Evans that you are capable of appreciating the difference between right and wrong and submitted that your comments to Dr Evans during your assessment with her both demonstrated an appropriate degree of remorse and reflected an increasing maturity which enhances your prospects of rehabilitation.
Plea submissions
60Now to you, Mr David. Mr Lavery submitted on your behalf that you pleaded guilty at the earliest opportunity which has significant utilitarian value. Your pleas were entered during the Covid-19 pandemic which entitles you to the discount discussed in the case of Worboyes.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
61Your counsel submits that you have demonstrated remorse for your actions evidenced through your pleas of guilty, your statements to Gina Cidoni in your psychological assessment and your engagement in the CISP program. This was confirmed by the evidence of your mother who told the court that you consistently tell her that 'you are sorry for what you put all of us through'.
62It is also submitted that you have no prior criminal history and that you are a youthful offender, being only 21 years of age at the time of the offences.
63It was submitted that your youth also enlivens the principles of Mills[4] which I will touch on later.
[4] Above n 2.
64It is submitted by Mr Lavery that you have a tendency to lean on others for guidance and security and a tendency to place yourself in inferior positions. He relied on this tendency to explain your participation in this offending.
65It is submitted that you should be afforded the opportunity of avoiding a term of immediate imprisonment by the imposition of a community corrections order.
66Now to you, Mr Jones. Mr Brown, on your behalf, raised the fact that your youth, your childhood deprivation and exposure to violence and dysfunction are significant matters warranting a moderation of your sentence.
67As to your background and upbringing, Mr Brown argued that the chaos and instability of your early life engages the principles in Bugmy v R[5] and your sentence should therefore be ameliorated to reflect your reduced moral culpability brought about by your vulnerability to offending as a consequence of your exposure as a child to violence and dysfunction.
[5] [2013] HCA 37.
68He also submitted that you have reasonable prospects of rehabilitation.
Mr Brown highlighted that you had been living with your parents since your release from custody in September 2020 and that you continue to have their support and that of your wider family. You had also been working as a tradesman alongside your father until the time of your arrest, and if released, you would be able to obtain work in days.69It was submitted and also discussed in Ms Matthews' report that you have in the past attempted to rehabilitate but the traumatic experiences that you underwent as a child and the lack of support structures have prevented you from succeeding.
70You have completed a computer course and a literary course in jail and you have obtained certificates in first aid, cleaning, baking and civil construction. This work indicates that you are trying to improve yourself. That is a positive sign.
71Mr Brown also raised a number of potential diagnoses as having an impact on your offending. I note that there is no evidence before the court from medical professionals formally diagnosing you with any disorders. However, Mr Brown relied on the opinion of Ms Matthews that your reported behaviours throughout your life are consistent with the symptoms of attention deficit hyperactivity disorder.
72On this basis, it was submitted that it is not uncommon for young people with this diagnosis to find themselves using methylamphetamine as a form of
self-medication.73A number of other diagnoses were raised in Ms Matthews' report, notably, the possible existence of a conduct disorder and borderline personality disorder. In the absence of formal diagnoses, there is not much I can make of these provisional opinions.
74The principle mitigatory feature relied upon by Mr Brown is your youth. Your youth means rehabilitation must play a significant role in the sentencing exercise, unless the seriousness of your offending is so high that your rehabilitation needs to give way to denunciation alongside general and specific deterrence.
75Mr Brown emphasised that it is a very significant thing for a
19-year-old to be sent to jail. He has submitted that you have served a very long time on remand and an appropriate disposition is one which sees you returned to the community to continue your rehabilitation and to continue your punishment.76Mr Brown submitted on your behalf that the appropriate disposition is a community corrections order or a combined jail term with a community corrections order.
Prosecution submissions
77Now to the prosecutor's submissions. The prosecutor, Mr Teo, underscored the objective gravity of this offending. He referred the court to the case of Hogarth[6] and emphasised that the aggravated burglary here had a number of the graver hallmarks associated with serious examples in this offence. Namely, that it was confrontational in nature, committed in company, at night, and with weapons. He conceded, fairly, that sentences prior to the pandemic have diminished application since the decision in Worboyes,[7] however, the prosecution submitted that a severe sentence is nonetheless open for each offender.
[6] Hogarth v The Queen [2012] VSCA 302.
[7] Above n 3.
78As to Mr David, the prosecution accepted a number of the submissions made by Mr Lavery on his behalf. The prosecution accepts that the principles in Bugmy v R[8] are enlivened in Mr David's case. The prosecution also accepts that his lack of prior criminal history warrants a discount.
[8] Above n 5.
79It also accepted that the evidence of his rehabilitation whilst on bail places Mr David in a different position to Mr Jones and Mr Wongling. Both
Mr Wongling and Mr Jones are still in custody and have been for many months. Mr David has been in the community on bail since 4 April 2022. In that time, he has attended to his rehabilitation positively and it would be detrimental to his progress to return him to custody.80As to Mr Jones and Mr Wongling, the prosecution submitted that their positions can be distinguished from Mr David's as a consequence of their more extensive criminal histories, their poorer prospects of rehabilitation, and their heightened risks of reoffending.
81The prosecutor points to the fact that at the time of offending, Mr Jones had been on a good behaviour bond for a period of two months and Mr Wongling was subject to a community corrections order.
82The prosecution also highlighted the reservations expressed by Dr Evans as to Mr Wongling's prospects of rehabilitation and recidivism and Ms Cidoni's concerns about Mr Jones' prospects of rehabilitation and recidivism.
83The prosecution says that this prior offending whilst on court orders heightens the risk of violent reoffending. Therefore, while it was conceded that the youth of the offenders means that rehabilitation plays a key role in sentencing, these risks make the protection of the community more important.
84The prosecution conceded that the protection of the community can be served by a community-based disposition with both punitive and rehabilitative components, noting the reservations about Mr Wongling's ability or motivation to comply with court orders due to his prior poor compliance.
85The prosecution submitted that the report of Pamela Matthews is not sufficient to ground a submission that Bugmy[9] is enlivened in Mr Jones' case, however, it was conceded that I am able to take into account the background and upbringing of Mr Jones in my sentence.
[9] Above n 5.
86The prosecution accepted that there is no distinction between the offenders based on the roles each of them played. Mr Wongling has an additional charge of theft but the prosecution conceded that this is insufficient to justify a disparate sentence.
87As to the risk of deportation, the prosecution sought to distinguish Mr Wongling's situation from those of other offenders who face deportation at the end of their sentences. The prosecution argued that Mr Wongling's potential deportation would be to a country where his parents and siblings live, one with support systems in place to accommodate his transition.
88Nevertheless, the prosecution accepted that the dislocation of repatriation constitutes an extreme hardship and Mr Wongling will suffer anxiety about his migration status whilst he is in custody and this will make any prison term he serves more burdensome.
Gravity of offending and moral culpability
89I turn now to the gravity and moral culpability of the offending. The charges in this matter are inherently serious and this offending included a number of aggravating features which elevate its subjective gravity. The offending was committed at night, with multiple offenders and with dangerous weapons.
90The victim was a young 20-year-old woman, home alone. Although she declined to provide a victim impact statement, this experience must have been terrifying. The prosecution referred me to the case of Hogarth.[10] In that case the Court of Appeal said the following about offences such as this:
Home invasion is a particularly nasty form of criminal conduct. Typically a home invasion involves multiple offenders entering a person's home carrying weapons intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders acting in anger and often fuelled by alcohol is itself a terrifying experience for the householder, irrespective of what may occur after entry.
We do not consider the current sentencing for confrontational aggravated burglary reflects the objective seriousness of this form of offence. The clustering of sentences around a median of two years shows how far current sentencing has departed from the parameters set by the maximum penalty of 25 years. It cannot have been parliament's intention that with a few isolated exceptions sentencing for the full range of such offences should be bounded by an upper limit of six or at most seven years imprisonment.[11]
[10] Above n 6.
[11] Ibid at [58]-[59].
91The court in Director of Public Prosecutions v Myers[12] noted that the assessment of the seriousness of a charge of aggravated burglary depends on a number of considerations namely:
(a)the offenders' intent at the point of entry, whether to steal or commit assault or cause damage, (b), the mode of entry, for example by forcing a door or breaking a window, (c), whether the offender was carrying a weapon, (d), whether the offender was alone or in company, (e), the time of day at which the burglary took place, (f), what the offender knew or believed about who would be inside, and/or about where the persons would be, and (g), whether the offender was someone of whom the victim was particularly frightened.[13]
[12] DPP v Meyers [2014] VSCA 314.
[13] Ibid at [48].
92Factors (a) to (f) are apposite here; the intent was to assault, a door was forced, weapons were carried, you were in company, your attack occurred at night and you believed that Mr Hemi-Pahi was present. Against that, the offending was unsophisticated and poorly planned. The victim was not physically hurt.
93The incident was committed in the context of excessive consumption of alcohol and illicit substances and you ultimately left voluntarily. All three of you are youthful and you all entered pleas of guilty at the earliest opportunity. Mr Wongling does have a prior criminal record and was on a community corrections order at the time of offending, but he has only one prior appearance in the Magistrates' Court and four in the Children's Court.
Prospects of rehabilitation
94Now I turn to prospects of rehabilitation and risks of reoffending. Mr David, in assessing your prospects of rehabilitation, I have had regard particularly to your performance on bail. You were placed on the CISP program on
29 March 2022 and engaged enthusiastically, voluntarily engaging in treatment and undergoing anger management courses. Your final CISP progress report dated 3 April 2023 congratulates you for your demonstrated efforts.95Mr Wongling, Ms McDonald indicated that although you have a prior history containing other violent offences and you were on a community corrections order at the time of this offending, your prospects of rehabilitation remain good if you are provided with supports and structure. You are a young man who has family support and a committed partner. There are no antisocial personality traits or cognitive impairments underlying your offending but alcohol and drug intoxication appear to be the dominant factors in your criminal behaviour. Intervention can assist.
96I have also considered the assessment of Dr Evans who notes that you have demonstrated a degree of remorse for your conduct and a degree of insight and reflection. Dr Evans also performed an Historical Clinical Risk Management 20, or HCR 20 test, to assess your risk of violence. I have had regard to the low overall score you returned. The test results indicate that your risks of recidivism stem from historical factors linked to your prior offending and an early engagement with the criminal justice system.
97You are a youthful offender and the community's investment in your rehabilitation represents its greatest chance of protection from future criminality, as French CJ observed in Hogan v Hinch,[14] - ' Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest'.[15]
[14] Hogan v Hinch [2011] HCA 4.
[15] Ibid [32].
98I note the tentative conclusion of Dr Evans that the dominant factor in your offending was acute alcohol and drug intoxication as opposed to impaired mental functioning. Your time in custody to date has resulted in in abstinence from these substances. There is some foundation for cautious optimism.
99Mr Jones, as well as the submissions by your counsel as to your prospects of rehabilitation, I have also had regard to Ms Matthews' assessment of your risks of reoffending. You reported to Ms Matthews that whilst in prison, you have developed a daily routine which involves working and exercise in the gym. You also reported that since you have stopped using drugs, you feel a lot better and your hallucinations have gone away.
100You were also assessed on the Inventory of Offender Risk Needs and Strengths or IORNS test. The results of this test appear to indicate that you view yourself positively and relatively free of flaws. However, Ms Matthews indicates that your results are related to a high risk of further recidivism associated with several factors, namely, difficulties with taking responsibility; emotional dysregulation pertaining to anger; boredom; loneliness; low self-esteem; difficulty forming attachments; lack of interpersonal support; a negative criminal friendship milieu and substance abuse.
101Ms Matthews opined that your test results relating to dynamic risks and high protective strengths suggests that previous treatment has some impact on you, as the risks associated with criminal attitudes, manipulation, impulsivity, hostility and aggression are in line with half of the comparative normative population.
102These results were paired with your protective strengths which are found to be greater than three quarters of the comparative normative population and suggest that your family positively influences you.
103Ultimately, Ms Matthews concluded that your risk of violently offending is high, however you have positive indications of this risk lessening and she recommended future treatment plans which specifically target the factors contributing to your risk of reoffending. I have taken this into account.
104Mr Jones, I find your prospects of rehabilitation are fair and your risk of reoffending should be capable of being managed on a community corrections order.
Guilty pleas and remorse
105Each of you pleaded guilty prior to committal without any witnesses giving evidence. This has spared the use of finite court resources. I accept that your pleas have been entered during the currency of the Covid-19 pandemic and have additional utilitarian value as discussed in Worboyes.[16] I have moderated your sentences to reflect the discount to which you are entitled. Each of you relies on expressions of remorse made to family members or psychologists, as further evidence of regret for the damage caused by your offending.
[16] Above n 3.
106The manner in which a sentencing court is to use evidence of remorse was considered in the case of R v Duncan,[17] where the Court of Appeal said:
A plea that demonstrates genuine remorse and prospects of rehabilitation that is entered at the earliest practical opportunity and that saves the state a trial and witnesses both trauma and inconvenience normally justifies a high discount.[18]
[17] [1998] 3 VR 208.
[18] [1998] 3 VR 208, [215].
107I accept that each of you have expressed regret for your involvement in this offending and I accept that your early pleas of guilty were, in part, motivated by the shame each of you feel.
108Now the principles in the case of Bugmy.[19] Counsel for David and Jones submitted that your sentences should be moderated to reflect the nexus between childhood deprivation and exposure to violence and your susceptibility to offending.
[19] Above n 5.
109In Bugmy the High Court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.[20]
[20] Ibid at [44].
110Both of you point to dysfunctional parenting or grand-parenting as the factor enlivening the operation of the principles in Bugmy. Whilst the evidence in support of this mitigatory feature is starker in your case, Mr David, I am prepared to accept that as a consequence of the history you provided to
Ms Matthews, your exposure to your grandmother's abuse of your grandfather and the instability you encountered under her roof predisposed you, Mr Jones, to homelessness and criminal offending.111I pause here and note that there is an offence of being armed in your criminal history, which supports that conclusion.
112Accordingly, your moral culpability is also reduced, albeit not to the same extent as yours, Mr David.
Youth
113Now to the effect of the offender's youth. At the time of offending Mr Wongling, you were 21. Mr Jones, you were 19 and Mr David, you were 21. At the time of sentence, each of you is aged 22, 20 and 20 respectively.
114In the case of R v Mills, the court articulated the following principles.
1. The youth of an offender should be a primary consideration for a sentencing court where that matter properly arises. 2. 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 rehabilitation is to be preferred. Rehabilitation benefits the community as well as the offender. 3. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated a shorter period of imprisonment may be justified.[21]
[21] Above n 2.
115The Court of Appeal in Azzopardi distilled the following three principles from the existing case file:
First, young offenders being immature are therefore more prone to ill-considered or rash decisions. They may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Secondly, courts recognize the potential for young offenders to be redeemed and rehabilitated. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti‑social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, is one of the great objectives of the criminal law.
The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation.
While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[22]
[22] Azzopardi v R (2011) 35 VR 43, [34]-[36].
116You are each of you youthful offenders and your offending was characterised by immaturity, a lack of insight and a childish inability to understand the consequences of your actions. I intend to impose sentences which promote your rehabilitation in keeping with the authorities discussed above.
117Now to deportation sentencing. Ash Wongling, you are in a unique position in that you alone are not an Australian citizen and therefore risk having your visa cancelled, exposing you to deportation if sentenced to a term of imprisonment of 12 months or more.
118Following the case of Guden v R[23] in Victoria, a sentencing court can take into account the risk of deportation in two ways:
The fact that an offender will spend their term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. In an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. This may well be viewed as a serious punishing consequence of the offending.[24]
[23] [2010] VSCA 196.
[24] Ibid at [27].
119Subsequent case law has demonstrated that the risk of deportation may also increase the weight to be given to rehabilitation as a sentencing consideration in the sentencing of a non-citizen offender.
120In order for me to take this risk into account, evidence must be put before the court as to the actual risk to and the possible effect of deportation upon you. The evidence provided to the court must demonstrate that the risk of deportation rises above mere speculation. Where sufficient evidence is presented to the court, the extent to which the sentence stands to be mitigated depends largely on the offender's personal circumstances. And I quote:
It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated.
On the other hand, the prospect of deportation might be a severe additional punishment for an offender who has aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country or has other ties to the Australian community.[25]
[25] Konamala v The Queen [2016] VSCA 48 at [34].
121In your case Mr Wongling, whilst I accept the submissions of Ms McDonald that you stand to have your visa automatically cancelled if sentenced to a period of imprisonment of 12 months and more, and therefore you face the risk of deportation following a period in custody, enlivening the principles in Guden,[26] I have not been provided with any evidence which permits me to assess the risk of deportation in your case.
[26] Ibid 23.
122I accept the prosecution's submission that if deported, you will be sent to
New Zealand where your parents live and you are therefore in a different position to someone facing deportation to a country with no connection or support networks.123However, I also acknowledge that you have built a life for yourself in Melbourne and, if deported, you will lose connections with extended members of your family and your long-term partner. If deported, you would also lose the chance to permanently settle in Australia. However, again, I have not been provided with any evidence establishing the likelihood of this happening to you and I am therefore unable to take this potential consequence into account.
124I accept that the risk of deportation would weigh heavily on you during your period of imprisonment, making your time in custody more burdensome as a result. I have mitigated the sentence I am to impose on you in recognition of the fact that the time you have spent in custody has been more burdensome due to the uncertainty surrounding your future here.
Parity
125Now to parity. No distinction can be drawn between your roles. But you have prior convictions Mr Wongling, and so do you Mr Jones. I note that yours, Mr Jones, are considerably more extensive than yours, Mr Wongling, although you have one appearance as an adult and he does not.
126Mr Teo submitted that a combined jail term and community corrections order is within range for you, Mr David, but that you, Mr Jones, and you, Mr Wongling, should receive jail terms with non-parole periods. This would result in markedly disparate sentences. The only matter justifying a departure from parity is the presence of Children's Court appearances.
127In my view, the fact that each of you have committed offences previously, albeit, as children, with one exception, does not warrant the disparity sought by the prosecution. There will be a difference between your sentence, Mr David, and yours, Mr Wongling and Mr Jones, but not as great a difference as I have been asked to make.
Further sentence conisderations
128As to the sentencing principles. Section 5 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides that the only purposes for which I am permitted to sentence each of you are:
a) to punish you in a manner and to an extent that is just in all of the circumstances;
b) to deter you and others from committing similar offences;
c) to establish conditions through which you may be rehabilitated;
d) to manifest the denunciation by the court of your offending behaviour; and
e) to protect the community from you.
129Regarding the sentence to be imposed, Mr Lavery, on behalf of Mr David, although I think in practice his comments could be applied to each offender, took me to the case of Boulton.[27]
[27] Boulton v The Queen [2014] VSCA 342.
130Following a review of the community correction order sentencing regime, the court made a series of observations on the use of community correction orders. Depending on the length of the order and the nature of the conditions attached, a community corrections order can be inherently punitive in nature thus serving deterrent and denunciation purposes. Such sentences can be tailored to satisfy a range of sentencing purposes particularly in relation to young offenders.
131Regarding the suitability of community correction orders for serious offending the court said, and I quote,
It follows from what we have said that a community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, such as for example aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rapes and some categories of homicide.
The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment whilst affording the best prospects of rehabilitation.[28]
[28] Ibid at [131].
132The Court of Appeal has recently observed that subsequent legislative amendments to the community corrections order regime have not diminished the relevance of the guidance to be drawn from the court in Boulton.
Sentence
133What I am proposing to do with each of you at this stage is to record convictions and place each of you on a community corrections order for a period of three years.
134Before I ask you to consent to such an order being made, I have to tell you a little bit about the order so that you know what it means. So I will ask each of you to listen now.
135The following core conditions apply to all community corrections orders;
(a), you must not commit whether in or outside Victoria during the period of the order an offence punishable by imprisonment; (b), you must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order; (c), you will each have to report to the Werribee Corrections Office at 87 Synnot Street in Werribee within two clear working days of your release from custody; (d), you must notify the secretary or their nominee of any change of address or employment within two clear working days after that change; (e), you must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee; (f), you must comply with any direction given by the secretary that is necessary for the secretary to give to ensure you comply with the order.136There are a number of other conditions attached to the order and they apply to each of you, so listen closely. Ash Wongling, the other conditions of your order are as follows; (a), you will have to perform 400 hours of unpaid community work over a period of three years as directed by the regional manager, 150 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition; (b), you must be under the supervision of a community corrections order for a period of three years; (c), you are required to be supervised, monitored and managed as directed by the secretary or his or her nominee; (d), you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager; (e), you must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager; (f), you must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the regional manager; (g), you must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or a residential facility as directed by the regional manager; (h), you must undergo programs or courses aimed at addressing factors relevant to the offending as directed by the regional manager and I specifically refer to the anger management program; (i), you must attend for review of your progress in compliance or otherwise with conditions of the order and you have got to come back before me on Wednesday 5 July 2023 at 9.30 am.
137I direct that I be advised by your corrections officer of any non‑compliance of these conditions and I will then determine if the matter should be brought back before me.
138Now, to Mr David. The other conditions of your order are as follows; you have to perform 400 hours of unpaid community work over a period of three years as directed by the regional manager, 150 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition; you must be under the supervision of a community corrections officer for a period of three years; you are required to be supervised and monitored and managed as directed by the secretary or his or her nominee; you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager; you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager.
139You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in hospital or a residential facility as directed by the regional manager; you must undergo a mental health assessment and treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager; you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager, and I specifically refer to the anger management program; you must attend for review of your progress and compliance or otherwise with conditions of the order; and you have got to come back before me on Wednesday 5 July 2023 at 9.30 am.
140I direct that I be advised by your corrections officer of any non‑compliance of these conditions and I will then determine if the matter should be brought back before me.
141Kautoke Jones, the other conditions of your order are as follows; you have to perform 400 hours of unpaid community work over a period of three years as directed by the regional manager, 150 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition; you must be under the supervision of a community corrections officer for a period of
three years; you are required to be supervised and monitored and managed as directed by the secretary or his or her nominee; you must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager; you must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager.142You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or a residential facility as directed by the regional manager; you must undergo a mental health assessment and treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager; you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager, and I specifically refer to anger management programs; you must attend for review of your progress and compliance or otherwise with - - -
143Mr Jones, can you see and hear us?
144OFFENDER JONES: Yes. Yes, Your Honour.
145HIS HONOUR: All right. I was reading out the conditions to which you would be subject if you consented to a community corrections order, and I will go back one.
146You must undergo programs or courses aimed at addressing factors relating to the offending and as directing by the regional manager and I specifically refer to anger management programs. You must attend for review of your progress and compliance or otherwise with conditions of the order and you have got to come back before me on Wednesday 5 July 2023 at 9.30 am.
147I direct that I be advised by your corrections officer of any non‑compliance of these conditions and I will then determine if the matter should be brought back before me.
148I could only impose a community corrections order if you agree to such an order being imposed. So I need to tell you, each of you, a little bit more about that.
149I should advise you that if you breach your order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
150You can also be resentenced for the offences that are before me. One of the options available includes a term of imprisonment. So you would need to be extra careful for the next three years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be resentenced on these charges that are before me.
151I also advise you that if you fail to comply with any direction of the
Secretary to the Department of Justice, that is a community corrections officer or worker, as part of this order a substantial fine can be imposed. Are each of you aware of that?152OFFENDER JONES: Yes, Your Honour.
153HIS HONOUR: Do you understand?
154OFFENDER JONES: Yes, Your Honour.
155HIS HONOUR: And do you each consent to being put on such an order?
156OFFENDER: Yes, Your Honour.
157OFFENDER: Yes, Your Honour.
158OFFENDER: Yes.
159HIS HONOUR: Very well.
160Mr Wongling, Mr David and Mr Jones please stand. Mr Wongling, I sentence you as follows. On Charge 1, aggravated burglary, you are convicted and sentenced to 11 months jail to be followed by a community corrections order of three years.
161On Charge 2, damaging property, you are convicted and sentenced to
six months jail concurrent with the sentence in Charge 1.162On Charge 3, theft, you are convicted and sentenced to two months jail to be served concurrently with the sentence on Charge 1.
163Mr David, I sentence you as follows. On Charge 1, aggravated burglary, you are convicted and sentenced to seven days jail followed by a community corrections order of three years.
164On Charge 2, damaging property, you are convicted and sentenced to a community corrections order of 12 months to be served concurrently with the sentence in Charge 1.
165Mr Jones, I sentence you as follows. On Charge 1, aggravated burglary, you are convicted and sentenced to a period of 11 months jail, upon the completion of which you are to undergo a community corrections order of three years.
166On Charge 2, damaging property, you are convicted and sentenced to six months jail to be served concurrently with the sentence on Charge 1.
167Pursuant to s 18(4) of the Sentencing Act, I declare Ash Wongling has spent 11 months in custody by way of pre-sentence detention to be reckoned as served. Charlie David has spent seven days in custody by way of
pre-sentence detention to be reckoned as served. And Kautoke Jones has spent 11 months in custody by way of pre‑sentence detention to be reckoned as served.168Pursuant to s 6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have imposed the following sentences: a total effective sentence of 30 months’ imprisonment with a non-parole period of 20 months on Ash Wongling; on Charlie David, a total effective sentence of 24 months’ imprisonment with a non-parole period of 14 months; and on Kautoke Jones, a total effective sentence of 30 months’ imprisonment with a non‑parole period of 20 months.
169HIS HONOUR: Are there any other orders required?
170MS BRISTROW: No, Your Honour.
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