Director of Public Prosecutions v Davoren

give

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL JURISDICTION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01109

DIRECTOR OF PUBLIC PROSECUTIONS

ISAAC DAVOREN

---

JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2023
DATE OF SENTENCE:	1 December 2023
CASE MAY BE CITED AS:	DPP v Davoren
MEDIUM NEUTRAL CITATION:	[2023] VCC 2354

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – SENTENCE
Legislation Cited: Confiscation Act 1997 (Vic)s 32 and 33; Crimes Act 1958 (Vic) s 77 and s 321M; Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Bugmy v The Queen (2013) 249 CLR 571; Baroch v The Queen; Ater v The Queen [2022] VSCA 90; DPP v Herrmann [2021] VSCA 160; R v McKee & Brooks [2003] VSCA 16; Worboyes v The Queen [2021] VSCA 169; DPP v Stewart [2019] VCC 1612
Sentence: Total effective sentence of 9 months’ imprisonment and a community correction order of 18 months’ duration.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch	Office of Public Prosecutions
For the Offender	Ms A. Hughes	Adrian Paull Criminal Lawyers

[JH(1] [A(2] [J(3]

HER HONOUR:
Mr Davoren, you have pleaded guilty to one charge of attempted aggravated burglary which carries a maximum penalty of 20 years' imprisonment and you have admitted your prior criminal history.[1]

Circumstances of Offending
[1]Crimes Act 1958 (Vic) ss 321M and 77.

The full circumstances of your offending are set out in the summary of prosecution opening for plea dated 13 September 2023, the accuracy of which you accepted through your counsel on the day of your plea.
CCTV footage captured the entirety of your offending and that was played to the court on your plea.
The victim in this matter is 33-year-old Bradley Reid. The victim and your co‑accused, Clive Stewart, had known each other for approximately one month.
On 22 February 2023 at approximately 8:26 pm, Stewart attended a boarding house located at 11 Maryvale Crescent in Morwell. He had a kitchen knife in his possession.
You arrived at the house approximately five minutes after your co-accused in the company of witnesses Rhonda Harrison and Jai Smith-Goode. In CCTV footage you are seen wearing a patched sleeveless jacket displaying the emblem of 'The Mongrel Mob'.
You entered the property through the same smashed front window as Stewart and then you opened the front door to the property for Harrison and Smith-Goode. The three of you walked down the hallway through the house, calling out for the co‑accused.
You located Stewart inside 'Room 4' of the property and he indicated that the three of you should remain quiet and come into the room to have a short conversation.
At approximately 8:34 pm your group left 'Room 4' and walked further down the hallway, through a door towards the outdoor terrace. You and Stewart observed the victim standing in the open doorway of 'Room 9' of the house.
At 8:35 pm Stewart approached the victim, holding the kitchen knife behind his back. He challenged the victim, stating 'You got me stabbed you fucking dog'. He then rushed at the victim holding the knife above his head and the victim retreated into 'Room 9', shutting and locking the door.
Stewart, referring to the now locked door, ordered you to 'kick it open', while screaming 'You’re fucking dead' at the victim on the other side. You forcefully kicked the door open with your right boot and attempted to enter the room by stepping inside, but the victim pushed you back and shut the door, preventing you from entering.
You attempted to kick the door open a second time, but you were unsuccessful in gaining entry into the room. This forms the basis of the charge before the court on this plea.
Stewart screamed through the door, making threats to kill the victim, and slashed at the door with the knife. He can be heard on the CCTV screaming 'Get out of here now dog you got three seconds or I will come through that fucking window and break your' – and it is unclear what words were used thereafter.
Both Harrison and Smith-Goode remained in the hallway throughout the entirety of this incident and were not directly involved.
At 8:38 you and your co-accused, along with Harrison and Smith-Goode, left the boarding house together via the front door. Your co-accused and Harrison then walked around the side of the property. Stewart approached the window to 'Room 9' holding a scooter and making threats to the victim inside the room. He then threw the scooter through the window, causing it to shatter.
You all then left the address.
You gave a full no-comment record of interview on 30 March 2023. At the conclusion of the interview, when asked whether you wished to say anything to the charges, you replied 'Well, like, I could've, like, I've just been going through, like, I dunno, like… I've been really drinking a bit lately … Like, so I could've, you know, like… - - - maybe kicked the door and that but without, you know, intentions. I sort of can't really remember too much. But like, yeah, I could've like… But, yeah, I didn't use weapons… I'm just - - - I was allowed in their house probably if I was there, like, 'cause I wouldn't enter the doors of – otherwise. I won't jump through windows … I'd be allowed to go through the front door so there's no – like, backlash on me and stuff … So obviously been able to go through this front door ---- you know, been welcomed in there maybe'.
Nature & Gravity of Offending
Attempted aggravated burglary is an inherently serious offence as reflected in the 20- year maximum penalty. Your role in the offending is important in assessing the gravity of your offending, and also in considering issues of sentencing parity with your co-offenders.
Whilst you were not the main aggressor, neither were you an entirely passive bystander. You did not make any threats or hold the knife or any other weapon. You entered via a window which had previously been smashed by your co-offender and let two other members of your group in through the door. The offending occurred at around 8:00 pm and was of relatively short duration. Ms Hughes, who was counsel for you at your plea hearing, submitted that your intention on coming to the house was not to commit the offence but rather to check on the welfare of you co-offender who you understood to have been stabbed earlier. Your remarks made at the end of your record of interview were vague and demonstrate that you were possibly intoxicated. I simply cannot draw a conclusion one way or the other as to why you attended the property. I conclude that you were an active participant in this offence, but that your co-offender was the main aggressor and you were acting upon his instructions.
I conclude that given your lesser role, your offending is a relatively low-level example of this offence.
Personal Circumstances
At the time of your offending you were 31 years old and you are now aged 32. You are a New Zealand citizen and identify as Māori.
You were raised in New Zealand by parents who are still together and who remain supportive of you. You have four siblings. One of your older sisters lives in Victoria, your foster sister lives in Perth, and your remaining siblings live in New Zealand.
When you were around 10 years old your father went to East Timor to serve with the New Zealand army. Your father was away for a couple of years and during this time your mother struggled with raising you and your siblings. As a result, your maternal grandparents stepped in to assist the family.
You say that the stress of your father being away led you to lash out at your mother and you report that this period of your childhood was particularly challenging.
You have disclosed being the victim of sexual abuse by an uncle. You believe the matter was reported to your mother when you were younger, and upon the perpetrator's death around three years ago you again disclosed the abuse to your family.
You witnessed some level of domestic abuse by your uncles to their wives. You recall your parents having verbal arguments with each other; however their fights were not physical.
Your parents have a history of heavy alcohol consumption, and you witnessed their drinking habits as a child.
You are the father of six children, and you had your first child at the age of 15.
Your children are all the product of a previous long-term relationship with your former partner, Ripeka.
You began to fall into a cycle of criminal behaviour when living in New Zealand, which ultimately saw you serve terms of imprisonment there.
After your last remand in New Zealand, Ripeka and you were motivated to break the cycle of your offending and make a fresh start. You did not offend for several years after moving to Australia in 2017, and you, your partner, and your children were able to live a 'normal life'.
You are currently on a visa which is set to expire in 2027. Your children born in New Zealand now have dual citizenship and you have one child who was born in Australia and is an Australian citizen.
Unfortunately, in 2020 your grandmother passed away. She was very influential in your upbringing, especially during your father's absence. Due to the COVID-19 pandemic you were not able to return to New Zealand for her funeral.
You describe your grandmother's death as the beginning of a downward spiral for you and you recommenced significant methylamphetamine use in 2021 and separated from your long-term partner.
As a result of the separation, you stopped wanting to attend work and your drug and alcohol consumption increased significantly.
In Australia you have worked sporadically as a contract sheep shearer. In the period prior to your remand in custody you were not working a lot. You intend to return to contract shearing upon your release from custody.
You first used cannabis at the age of eight, after being offered the drug by your cousin. Your drug use developed from there and at age 15 you commenced using methylamphetamines.
Your mother, Shelley Davoren[2], writes that you are remorseful at having caused grief to the victim and that she has noticed positive changes in you since you have started attending counselling.
[2]Exhibit 5 - Character reference of Shelley Davoren dated 1 November 2023.
Your mother notes that you have had a huge impact on your community in New Zealand by looking after elderly community members and children, and that you were her 'saviour' when times were hard.
Your father, Dean Davoren[3] writes that you have shown remorse for your actions during weekly zoom calls with him since being in custody. Your father notes you work hard at maintaining your relationship with your children and you are a very active father.
[3]Exhibit 6 - Character reference of Dean Davoren, dated 8 October 2023.
Your friend, Ngareta Mason[4], has known you for two decades and considers you a cherished member of her extended family. Ms Mason says that you are a person of integrity who has also shown deep commitment to family.
[4]Exhibit 7 - Character reference Ngareta Mason, dated 9 October 2023.
In a psychological report authored by Jeffrey Cummins[5], he opines that you have been intermittently suffering from symptoms of major depressive disorder, of at least moderate severity, with associated anxiety and features of traumatisation since your mid-teenage years.
[5]Exhibit 1 - Report of Jeffrey Cummins dated 15 September 2023.
A neuropsychological report authored by Dr Kelly Sinclair[6] was tendered on your plea. Sinclair was not able to obtain a valid neuropsychological profile of you, however, and was therefore not able to comment on the nature, severity, or effect of any current cognitive impairment.
[6]Exhibit 2 - Report of Dr Kelly Sinclair dated 20 October 2023.
In a supplementary report authored by Mr Cummins, [7] he opined that you are likely suffering from a mild acquired brain injury (ABI), but that the assessment of this ABI was confounded by you being a traumatised person.
[7]Exhibit 3 - Supplementary Report of Jeffrey Cummins dated 1 November 2023.
Your counsel reports that just prior to your remand in custody you contacted Wimmera services and arranged an assessment appointment for drug and alcohol counselling and for a men's behaviour change program.
Since being in custody you have been taking a course of anti-depressants for the first time in your life and you are seeing the mental health nurse every week.
Sentencing Considerations
You pleaded guilty at the second committal mention which I accept is the earliest point after which more serious charges were withdrawn. In doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have been otherwise spent in conducting a trial. I take the utilitarian value of your plea of guilty into account.
Your plea of guilty was entered at a time when the criminal justice system was struggling to recover from the impact of the COVID-19 pandemic. Your plea has assisted the higher courts in this state to reduce the backlog of matters awaiting trial to pre- pandemic levels. Accordingly, I will give some discount in sentencing you in accordance with the principles in Worboyes’ case[8] insofar as it applies at this point in time.
[8]Worboyes v The Queen [2021] VSCA 169.
Mr Davoren, you wrote a letter to the court expressing your sincere apologies for your actions.[9] You take responsibility for those actions and are remorseful for the impact your actions had on the victims of your offending. You explain how you are working to be a better father and member of the community and have used your time on remand productively.[10] I accept that you are remorseful for your actions but are also concerned that you potentially face deportation from Australia.
[9]Exhibit 4 – Letter of Apology.
[10]Exhibit 9 – Bundle of Certificates- including certificates for Triple P Positive Parenting Program, ATLAS Mapping a Way Forward, and Youth Week Pacific Islander Cultural Art Class.
Mr Davoren, you have lived in Australia for six years and have established a life here. Your children all live here. You face the very real prospect of deportation from Australia, if not by virtue of this sentence, then as a result of any future sentences that may be imposed upon you. Potential deportation is relevant in two ways.[11] Firstly, I can accept that this may mean that you lose the opportunity to settle in Australia, and secondly, this is a matter which has been hanging over your head, making your time in custody more onerous.
[11]Baroch v The Queen; Ater v The Queen [2022] VSCA 90 [48].
Verdins and/or Bugmy principles[12] are not relied on in your case. However, I do take into account, in a general sense, your particular mental health challenges, history of trauma and disadvantaged upbringing.[13]
[12] R v Verdins & Ors [2007] VSCA 102 (‘Verdins’); Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[13]In accordance with the principles in DPP v Herrmann [2021] VSCA 160.
Given your extensive criminal history I view your prospects of rehabilitation as guarded. That said, I still accept that it remains a relevant consideration in sentencing. I accept that you express a commitment to turn your life around for your benefit and that of your six children. You have mental health and substance abuse issues and would benefit from the support of a Community Correction Order upon your release.
Another important consideration to which I must have regard is the principle of parity.
Offenders who are party to the same offence should, all things being equal, receive the same sanction. However, as Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 stated:
'…but other things are not always equal and such matters such as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.'
Your co-accused, Mr Stewart, was sentenced by His Honour Judge Johns in the Koori Court at Latrobe Valley on 8 September 2023[14] on one charge of attempted aggravated burglary, one charge of make threat to kill, and one charge of destroying property, together with the summary offences of carrying a controlled weapon and committing indictable offences whilst on bail. Stewart was convicted and sentenced to nine months' imprisonment with an 18 month, 'therapeutic' Community Correction Order.
[14]DPP v Stewart [2023] VCC 1612.
In considering parity, I must have regard to the differences and similarities between you and Mr Stewart.
Stewart participated in the Koori Court. He acknowledged his offending and its impacts before his community elders, one of whom he was related to. He discussed his life choices and future ambitions with those elders. While your childhood had its challenges, Stewart comes from a significantly more deprived, disrupted and disadvantaged background than you do. He has an acquired brain injury and an intellectual disability which permitted the court to include participation in a Justice Plan as a condition of his Community Correction Order. His Honour found that the principles in the cases of Bugmy, Verdins and McKee & Brooks were important in his case.[15] These significant factors reduced the moral culpability of Mr Stewart and His Honour concluded that general deterrence was moderated to some degree in his case. These mitigating features do not apply to you.
[15] Bugmy; Verdins; R v McKee & Brooks [2003] VSCA 16.
Mr Stewart was 36 and had relevant prior convictions.
You came to Australia in 2017 and began to accrue convictions in 2021. These include a two-month sentence of imprisonment for a police pursuit and family violence offending. Your New Zealand criminal record discloses a considerable history including priors for violence and weapons offences.
In conclusion, while you played a lesser role in the offending, given the relevant mitigatory factors attributable to Mr Stewart's case, the principle of general deterrence ought be given greater weight in sentencing you. I therefore conclude that in all the circumstances it is appropriate to sentence you on a basis which is the same in all material terms to that which Mr Stewart received.
General and specific deterrence, just punishment and community protection are all relevant sentencing principles in your case, Mr Davoren.
I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act and also current sentencing practices for the offences to which you have pleaded guilty.
You have been assessed as suitable to be placed on a Community Correction Order and I am told by Ms Campbell on your behalf today that you will consent to being placed on such an order. I have regard to the contents of the Corrections Assessment Report dated 6 November 2023 and the Mental Health Advice and Response Service report dated 8 November 2023, in sentencing you.
Sentence
In conclusion, Mr Davoren, I sentence you as follows:
On Charge 1, that of attempted aggravated burglary, you are convicted and sentenced to nine months' imprisonment.
On Charge 1 you are also convicted and sentenced to a Community Correction Order of 18 months' duration which will commence upon your release from custody.
The conditions of that order are:
(a)   You must attend at Horsham Community Correction Service within two clear working days of this order commencing, that is upon your release from custody.
(b)   You will undergo the supervision of a Community Corrections Officer for 18 months, which means you are required to be supervised, monitored and managed as directed;
(c)   You must undergo assessment and treatment, including testing, for:
·Alcohol and drug dependency as directed;
·Mental health as directed; and
·Undergo programs to reduce your risk of re-offending.
(d)   You must not commit an offence punishable by imprisonment during this order;
(e)   You must not leave Victoria without permission of Community Corrections;
(f)    You must let your Community Corrections Officer know within two clear days if you change your address or job;
(g)   And you must comply with any lawful directions given by your Community Corrections Officer that is necessary to ensure you comply with your order;
(h)   If you contravene this order, either by committing further offences or by failing to comply with the conditions, then you can be brought back before this court and fined and resentenced. That might mean you go to gaol for a further period of time for this offence.

Mr Davoren, do you have any questions about this order?
OFFENDER: No.
HER HONOUR: And do you consent to being placed on this Community Correction Order?
OFFENDER: Yes.
HER HONOUR: You're nodding 'yes' – okay. You have indicated your oral consent to being placed on this order and I direct that that be entered onto the court record.
Pursuant to s18 of the Sentencing Act, the period of 246 days of pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court records.
Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of two years and six months' imprisonment with a non-parole period of 20 months.
The prosecution also seeks a forfeiture order be made for your 'Mongrel Mob' jacket which you were wearing at the time the offending took place.[16]
[16]Confiscation Act 1997 (Vic) ss 32 and 33 (‘Confiscation Act’).
Ms Campbell, Ms Hughes made submissions on behalf of Mr Davoren to object to that order sought. Has that position changed at all?
MS CAMPBELL: No, it hasn't, Your Honour. I note there were some comments made in the Corrections assessment that might cause concern for the court. I do refer to the submissions made by counsel, Amara Hughes, on 3 November and I am instructed that it holds a lot of sentimental value. Mr Davoren's updated instructions are that he will display - if he is permitted to keep the jacket he would display it at home but not wear it.
HER HONOUR: Alright, thank you. I will now give my decision in relation to that application.
MS CAMPBELL: Thank you, Your Honour.
HER HONOUR: Ms Hughes on the previous occasion, as is reiterated by Ms Campbell today, has stated, Mr Davoren, that you have no intention of wearing the jacket publicly in the future but it has considerable sentimental value to you, so you wish to keep it.
Ms Hughes submitted that although you were wearing the jacket at the time of the alleged offending, there is nothing to suggest that the offending has a connection with organised crime.
Further, that you had not intended to attend the address on that day, you were simply wearing the jacket, which incidentally has associations with organised crime.
The definition of 'tainted property' under s3(1) of the Confiscation Act is defined as property that 'was used or was intended by the accused to be used in, or in connection with, the commission of the offence'.
I am satisfied that as you were wearing the jacket at the time of the alleged offending, it fits within the definition of 'tainted property' and therefore gives the court power to confiscate the jacket pursuant to ss32 and 33 of the Confiscation Act.
The jacket is 'patched' with insignia associated with a notorious organised crime gang. Your 'sentimental' attachment to this jacket will not assist your prospects of rehabilitation or reduce your prospects of reoffending. I am not satisfied that while this jacket may be sentimental to you that you will suffer 'undue hardship' in accordance with s33(5A) of the Confiscation Act by virtue of the loss of this particular article of clothing. I therefore make the order for forfeiture sought by the prosecution.
Is there anything further?
MR CROUCH: No, Your Honour. May it please the court.
MS CAMPBELL: Nothing further, Your Honour. As the court pleases.
HER HONOUR: Thank you, we will adjourn the court please.
- - -

[JH(1]Did she appear on the plea? I feel like soemone else did. I see I refer to a Ms Hughes in the text

it was a woman who appeared in both Plea and Sentence [A(2]

Hughes appeared on the plea and Campbell took sentence. [J(3]

[2023] VCC 2354

1 December 2023