Director of Public Prosecutions v Gabress
[2024] VCC 267
•8 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01867
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAZIN GABRESS |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2024 | |
DATE OF SENTENCE: | 8 March 2024 | |
CASE MAY BE CITED AS: | DPP v Gabress | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 267 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: plea of guilty –home invasion - young offender – delay – totality – mental health – impact of imprisonment - substantial and compelling circumstances
Legislation Cited: s.5(2H)(e.) Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169, Azzopardi v The Queen [2011] VSCA 372, DPP v Bowen [2021] VSCA 355, Postiglione v The Queen (1997) 189 CLR 29, Mohamed v The Queen [2022] VSCA 136, R v Verdins [2007] VSCA 62, DPP v Kenneison [2023] VSCA 321
Sentence: TES six months imprisonment, three months to be cumulated with sentence currently being served.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Davis | Office of Public Prosecutions |
| For the Offender | Ms S. Stafford | Doogue + George Criminal Lawyers |
HER HONOUR:
1 Mazin Gabress, you have pleaded guilty to one charge of home invasion.
2 The circumstances of your offending are outlined in the prosecution opening marked as Exhibit A, and this represents the factual basis upon which I sentence you.
Circumstances of the offending
3 You were born in March 1999 and at the time of the offending you were aged 20.
4 The victims, Paul and Dianne Presinszky are married and have two adult children. They all lived together in Taylors Lakes, Victoria. You and the victims were not known to each other.
5 On 5 May 2019 at approximately 4.00 am, the Presinszkys were in their bedrooms asleep. Two cars were parked in the driveway of the house.
6 You and your co-accused forced entry into the house via the front door. The front door was broken in. The panel of the door containing the lock and handle was broken off from the rest of the door and frame, running from the top to the bottom of the door. It is conceded that the prosecution cannot establish beyond reasonable doubt that you had knowledge or were reckless as to persons present.
7 The parents were woken up by the noise and were confronted by you and your co-accused in their bedroom. You and your co-accused turned on the bedroom light and you were standing in the room. The opening provides a description of the three offenders, two of whom were wearing balaclavas and the third alleged to be you, wearing a balaclava or dark face covering.
8 One of the co-accused was holding a knife and it is conceded that the prosecution cannot establish beyond reasonable doubt that you were armed or had knowledge that any of your co-accused had a knife.
9 Your co-accused yelled, 'The blue Mitsubishi, I want the keys to the blue Mitsubishi'. You were all yelling, 'Where’s the fucking money, we want the keys to the car', 'give me the keys to the Mitsubishi' and asking for money and keys. You all told Mr Presinszky to get up.
10 Mr Presinszky walked into the front lounge room then down the hallway towards the kitchen and your co-accused followed him.
11 Ms Presinszky walked to the kitchen and one of the accused followed her. She grabbed the keys to the Mitsubishi Lancer and said, 'Here’s the key.' One of you took the keys and went down the corridor towards the front door. The prosecution cannot establish beyond reasonable doubt that you were the one who took the keys.
12 Mr Presinszky and one of your co-accused entered the kitchen. Mr Presinszky grabbed two knives from the kitchen bench and approached you all with one of the knives in the air. You all turned and ran towards the front door.
13 Their adult children were woken by the noise. Mr Presinszky and his son, with a baseball bat, ended up chasing you and your co-accused out of their home. The son chased you and hit you with the baseball bat causing you to fall to the ground. Ms Presinszky was on the phone to the police at the time.
14 One of your co-accused ran back towards the house to the Mitsubishi Lancer in the driveway. They started the car and drove it out of the driveway.
15 Mr Presinkszky went over to you and his son. They pinned you to the ground. Your balaclava had come off and they saw blood all over your face.
16 The Mitsubishi Lancer turned and drove towards the three of you. At least one co-accused got out of the car. Mr Presinszky called out to his son to let you go and you ended up getting into the vehicle. There were four people in the car, including you. You all then drove away in the Mitsubishi Lancer.
17 The police arrived at the house at approximately 4.10 am.
18 A number of items were seized by the police from inside the house and outside the house, and as outlined in the prosecution opening, forensic evidence connected you to the crime.
19 The Mitsubishi Lancer was located by police on 8 May 2019 in the car park of CW Kirkwood Reserve on Dunne Street, Kingsbury. It was unattended.
20 You did not participate in a record of interview. A summons was issued for you on 11 November 2022.
Gravity of offending
21 Mr Gabress, you have pleaded guilty to a charge that is inherently serious, as indicated by the high maximum penalty. Also, home invasion is a Category 2 offence under the Sentencing Act 1991 which requires the court to make a custodial order, other than a sentence of imprisonment combined with a community corrections order, unless specific exclusions apply. I will return to this shortly.
22 There are no victim impact statements filed in this matter, though I acknowledge the presence of those who have attended these court proceeding over the course of time. As I observed at the plea hearing, this was a significant intrusion on this family’s right to security and safety in their own home. In the early hours of the morning you broke into the victim’s home when all family members were asleep. They were woken by the noises of you and your co-offenders breaking the front door and yelling and were then confronted by you in their bedroom.
23 In my assessment of the gravity of your offending I also take into account the matters properly raised by your counsel, including: at the time of entry your intent was to steal; the incident was of short duration; there was no actual violence or force used and the prosecution concede that it cannot establish that you knew or were reckless as to persons present, were armed or had knowledge that any of your co-accused were; or that you were the offender who took the keys from one of the victims. You were then chased by one of the victims, as I have already referred to, and hit with a baseball bat causing you to fall to the ground and blood was observed 'all over [your] face.'
24 I take these matters into account, including in my assessment of your role, but I still do regard this offending as serious, and, Mr Gabress, your conduct on this occasion as entirely unacceptable and shameful.
25 Your counsel submits that this offending occurred during a period where you were regularly abusing drugs including cocaine, cannabis and prescription medication. She did not suggest that this diminishes your culpability but rather provides context to your offending conduct. Nor was it suggested on the material that you were experiencing a diagnosable mental health condition at the time of the offending.
Plea of guilty
26 Your offer to plead guilty was made at an early stage in the proceedings and therefore entitles you to an important discount in sentencing, it indicates remorse and a willingness on your part to accept responsibility for your offending conduct. No witnesses have been cross-examined in these proceedings. Your plea also has an important utilitarian value, heightened, I accept, in accordance with the Worboyes principles.[1]
[1] Worboyes v The Queen [2021] VSCA 169
Procedural history
27 The procedural history of your matter is particularly important and at the outset I will refer to some of the salient dates.
28 As already noted, the offending occurred on 5 May 2019.
29 On 23 August 2019 you were remanded in custody on unrelated matters.
30 On 24 March 2020 you were sentenced at the Melbourne Magistrates Court to a total effective sentence of 10 months' imprisonment with 214 days reckoned as served.
31 On 23 June 2020 this sentence ended and you were released from custody.
32 On 12 January 2021 you were remanded in custody again.
33 On 2 November 2022 you entered a plea of guilty to charges in this court. Some four days later, that is on 11 November 2022, you were charged for the current offending.
34 On 14 December 2022 you were sentenced in respect of the plea hearing that was heard on 7 November 2022. On this day I sentenced you to a total effective sentence of three years and five months' imprisonment with a
non-parole period of 26 months with 701 days reckoned as pre-sentence detention.35 Subsequently, on 2 February 2023 and 1 September 2023, you were sentenced in the Magistrates Court on unrelated matters to periods of imprisonment of six months (three months cumulative) and two months cumulative.
36 On 31 October 2023 your non-parole period expired.
37 On 5 December 2023 the prosecution accepted your offer to plead guilty to the current charge. On 23 February 2024 your plea hearing proceeded. On 13 October 2024 the sentence imposed on 14 December 2022 will expire.
Personal circumstances
38 Your personal circumstances, Mr Gabress, are well canvassed in the psychological reports of Gina Cidoni and the two reports of Marlese Bovenkerk of 2022 and 2024. Also, this court’s previous sentencing remarks refer in detail to your history.
39 In brief, your family are originally from Eritrea. In 1997 your mother and father sought refuge in Australia. They managed to escape the civil war and were granted humanitarian visas as they had been targeted by government forces.
40 Your family initially settled in Adelaide where they had some connections. You were then born, followed by your four sisters. Your mother works
part-time and your father runs and operates his own cleaning business. Though your life choices have left them despairing at times and caused difficulties, your family remain supportive of you. In his reference your father confirms that 'Upon release Mazin has all the support from myself as well as two potential job opportunities awaiting which are concreting and contract cleaning.' I note that your family have also attended court in support of you many times.41 You appear to have grown up in a loving and stable household. You did well at school, excelled at soccer and were awarded a scholarship to Henley High School. Your father describes your core characteristic as 'Intelligent, athletic and hardworking.'
42 In 2015 and 2016, aged around 16, you began associating with negative peers, started staying out late and commenced drug and alcohol use. This caused tensions within your family and had a significant impact on your schooling and sport. While you managed to finish school and you kept playing soccer in the NPL in South Australia, which is just below the national league, your performance and focus deteriorated. I also note that when you were 15 years of age your mother gave birth to another daughter who tragically passed away in the first year of her life. This had a profound impact on you and likely provides some context to how things started to deteriorate.
43 In January 2017 you moved with your family to Roxburgh Park in Melbourne. Your parents decided there were better opportunities here and wanted to move you away from negative influences. You were 18 at the time, had just finished high school. This was a significant upheaval and you struggled to adjust.
44 In Melbourne you wanted to study health science but did not have the qualifying subjects. Your life continued on the same path with you gravitating towards negative peers, lacking a stable daily routine and using drugs and alcohol.
45 You were involved with Youth Justice as a result of various past offending but you were exited from its supports in April 2018. The previous progress report, as referred to in my sentence of 14 December 2022, indicated that you were capable of engaging with them and with adequate supports managed to achieve periods of stability.
46 Your work history is limited. Your first job was with your father’s cleaning business in around 2019. You then moved to a carpentry job and started a TAFE course in building and construction. An altercation involving another student led to the suspension of your enrolment. Shortly thereafter
COVID-19 hit, disrupted things further leaving you, as was previously put on your behalf, 'Idle, isolated and directionless.'47 You have a relevant prior criminal history which I have taken into account. You have received a range of dispositions including adjourned undertakings, a community corrections order and imprisonment.
48 The sentence you are currently serving represents your longest sentence of imprisonment. In terms of your prior criminal history, the longest term you have previously served was the 48 days imposed on the 5 April 2019 which was wholly reckoned as a period of imprisonment already served.
49 Your counsel, in a thorough and considered plea, also relied upon a number of factors in mitigation of sentence which I will address now.
Youth
50 At the time of the offending, Mr Gabress, you had only recently turned 20 and you are about to turn 25 in a couple of weeks.
51 Your youth is an important sentencing consideration. The higher courts have recognised that, first, young offenders being immature are 'More prone to ill-considered or rash decisions'.[2] In your case, as submitted by your counsel, the psychological reports highlight the relevance of youth to the sentencing calculus.[3]
[2] Azzopardi v The Queen [2011] VSCA 372
[3] Psychological report by Gina Cidoni, dated 20 October 2022 [74] [81]
52 In her most recent report Ms Bovenkerk states at Paragraph 101: 'As highlighted during my previous assessment, it is important to consider the youthfulness of Mr Gabress’ age at the time which the index offence occurred.'
53 She then refers to, which I will not quote but appears within my reasons, to the significant difference in the maturation of young adults in their late adolescence and early adulthood compared to adult offenders.
54 Second, the courts recognise the potential for young offenders to be redeemed and rehabilitated and that the community has a vested interest in this.
55 Third, courts sentencing young offenders are cognisant 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 rehabilitation.
56 In your case, Mr Gabress, I accept that your youth, both at the time of the offending and your relatively young age now, is an important sentencing consideration. Measuring and adjusting your youth as a mitigating factor against other considerations, including the serious nature of the offending, I still regard rehabilitation to be a primary consideration.
57 Your counsel further submits that the period and circumstances of your incarceration also 'amplify the importance of the principles relevant to sentencing for youthful offenders.'
Delay
58 There has been a significant delay before you were charged, being some three and a half years. It is now soon approaching five years since the offending. The prosecution accept that you have not caused the delay and that it is a relevant sentencing factor.
59 Your counsel submits that in your case delay is a powerful matter, particularly as time takes on a 'different dimension for young offenders.' She submits that delay is relevant in several ways: the delay between the offending and charge of some three and a half years is 'unjustifiable and inordinate;' the delay of over four years and nine months 'gives rise to unfairness;' you have been left in a state of 'Uncertain suspense;' you have lost the opportunity for this matter to have been dealt with at an earlier time; the delay has compromised your eligibility for parole and it 'heightens the significance of the principle of totality in the sentencing exercise.'
60 I accept that delay is a significant consideration, particularly from the point of view of fairness, and this leads me into consideration of the principle of totality in your case.
Totality
61 You have no pre-sentence detention referrable to this matter. As the chronology establishes, by the time you were charged and remanded you were already in custody for unrelated offending.
62 On 14 December 2022 you were sentenced by this court on these matters to a total effective sentence of 41 months with a non-parole period of 26 months, and 701 days was reckoned as served.
63 Your case does not enliven s14 of the Sentencing Act as you are not presently serving your non-parole period. Where a person is subject to several terms of imprisonment, some of which carry non-parole terms while others do not, the question of the order in which the sentences are to be served is determined by s15(1) of the Sentencing Act. The effect of that provision is that any terms of imprisonment in respect of which a non-parole period is not fixed is to be served first, second, the non-parole period, and third, unless and until released on parole the balance of the term after the end of the non-parole period.
64 In my application of the totality principle, I take into account the chronology of matters and I also take into account the sentence imposed on you by the Melbourne Magistrates Court on 24 March 2020.
65 As the higher courts have stated, the principle of totality is essentially a principle of proportionality.[4] The totality principle is concerned to ensure that sentencing for an offender facing multiple offences is, as McHugh J held in Postiglione, a 'just and appropriate measure of the total criminality involved.'[5]
[4] DPP v Bowen [2021] VSCA 355
[5] Postiglione v The Queen (1997) 189 CLR 29
66 In the case of Mohamed v R, the Court of Appeal observed that applying the principle of totality is almost always a task of real difficulty.[6] There is no easy method of deciding that a certain term of imprisonment is proportionate to the offender’s criminal conduct and this is further complicated when a judge is required to form a view as to the ‘aggregate criminality' of quite different offences committed on different occasions and then determine what total sentence would be proportionate to that aggregate criminality.
[6] Mohamed v The Queen [2022] VSCA 136
67 As the court also stated:
'The totality enquiry does not, of course, end with an assessment of the aggregate criminality involved in the offending. The total effective sentence will only satisfy the requirement of proportionality if it is a just and appropriate measure of the total criminality involved'.[7]
[7] Ibid.
Mental health
68 Your mental health, Mr Gabress, and particular vulnerabilities have also been well canvassed in the reports. In summary, in her report of 2022 Ms Cidoni assessed your intellectual capacity as low/average with no test signs of major cognitive disturbance. At that stage the clinical evaluation indicated generalized anxiety disorder and Xanax and cocaine use disorder.
69 In her report of 9 December 2022 Ms Bovenkerk undertook various assessments over the course of two interviews and considered that you did not appear to meet the full diagnostic criteria for generalised anxiety disorder and that your profile was better accounted for by a diagnosis of adjustment disorder with anxious mood. At that stage it appeared that in response to your current circumstances involving ongoing isolation within a management unit, you had developed an adjustment disorder. She also raised the possibility of attention deficit hyperactivity disorder (ADHD).
70 The court has the benefit of two reports authored by forensic psychologist Ms Bovenkerk, the first one in 2022 and the next dated 29 January 2024. Based on her most recent assessment you presented with the following diagnosis: generalised anxiety disorder; cannabis use and various stimulant use disorders, all in sustained remission.
71 She provides the following opinion at Paragraph 92 of her report:
'It is evident that Mr Gabress’ mental health has deteriorated over time while being subject to a long-term management regime, during which he has experienced reduced activity and environmental input, a loss of autonomy and control and social isolation. During my initial assessment of Mr Gabress he reported minimal depressive symptoms and mild anxiety symptoms. It is clear that his adjustment disorder (which he exhibited at the time) has progressed further into generalised anxiety disorder, in the absence of psychological intervention and continued placement in management units.'[8]
[8] Psychological report by Marlese Bovenkirk, dated 29 January 2024 [92]
72 She also opines that in light of your 'Continuing mental health deterioration, imprisonment would likely weigh more heavily on [you] than a person without [your] conditions.'[9]
[9] Ibid [104]
73 I accept that Limb 5 of Verdins is enlivened in your case and I take into account the matters canvassed by Ms Bovenkerk in her report concerning your diagnoses and particular vulnerabilities.[10]
[10] R v Verdins [2007] VSCA 62
Impact of imprisonment
74 On 2 April 2021 you were moved to a management unit and you have remained there since that time; a period now approaching three years. The history of your placement in management units relates to alleged assaults involving staff and you have been charged, it seems, and sentenced for some of these incidents. When questioned by Ms Bovenkerk about these matters you indicated it involved a ‘build-up of things … a ripple effect'.[11] She considered that you displayed a 'Lack of insight into [your] behaviour and poor problem-solving skills.'[12]
[11] Psychological report by Marlese Bovenkirk [25]
[12] Ibid. [26]
75 In combination (for a period) with the restrictions imposed as a result of the COVID-19 pandemic, you have been subjected to extremely onerous custodial conditions for several years now.
76 Your counsel submits, and it was not challenged, that confinement in a management unit means that prisoners are kept alone in their cells for all but 60 to 90 minutes each day; prisoners have drastically reduced access to open air yards; are unable to access rehabilitative programs and have limited opportunities to interact with other prisoners. You have also been subject to a handcuff and shackle regime. You reported to Ms Bovenkerk that you have generally been able to access a one-hour runout. You have attended only two sessions of an IT course before you were unenrolled from the program as it became too difficult to transfer you to the classroom given the regime at the time. You are not currently participating in any programs or courses to facilitate your rehabilitation or assist with your parole eligibility. The letter from Forensic Services dated 3 April 2023 indicates that you were screened, met the eligibility criteria and placed on a waiting list. Your counsel submitted that there has been no progress or movement until the finalisation of this outstanding matter, and this represents a hinderance to any parole application.
77 Ms Bovenkerk highlights the adverse effects of long-term solitary confinement and your vulnerability to the negative impacts given your young age. She considers that it is a concern that you continue to engage in violent conduct and display a lack of insight. She cannot discount that some of your emotional dysregulation and problems with anger may stem from past unresolved trauma but notes that you continued to endorse minimal trauma symptoms in relation to these events. Another possibility she postulates is that your behavioural issues stem from your negative psychological consequences of long-term solitary confinement. She considers it beneficial for you to participate in individual psychotherapy to properly explore these issues.
78 It is not in dispute between the parties that your ongoing placement has arisen in the context of your behaviours and actions and your difficulty in managing interpersonal conflict. On the material before me, I accept that this may, in part at least, be to some extent informed by the symptoms of your generalised anxiety disorder and the likely negative psychological consequences of your ongoing confinement. In sentencing you, Mr Gabress, I take into account the highly restrictive conditions in which you have been detained and I assess this factor within its relevant context and in light of the submissions made by both counsel.
Section 5(2)(H) regime
79 A combination sentence or any other non-custodial sentence would only be available if there are substantial and compelling circumstance that are exceptional and rare and that justify not making a custodial order.
80 Counsel have referred me to the relevant cases which have guided me in my consideration of the legislative provisions. The correct application of s.5(2H)(e.) entails a two-step evaluative exercise.[13] As the Court of Appeal has recently stated:
'The first requires an assessment of whether the substance and compulsive force of the circumstances justify not imposing the mandatory term. The second, consistent with Parliament’s intention that imprisonment should ordinarily be imposed, involves considering whether such substantial and compelling factors fall wholly outside run of the mill factors typical for such offending. In undertaking those evaluations, ss5(2HC)(a)–(c) and 5(2I) of the Act govern what factors may be considered and how certain factors are to be weighed. General deterrence and denunciation must be given primacy as sentencing purposes. An offender’s personal circumstances must be given less weight than matters such as the gravity of the offending. Regard must not be given to an offender’s previous good character, early guilty plea or prospects of rehabilitation, nor to parity with other sentences.'[14]
[13] DPP v Kenneison [2023] VSCA 321
[14] Ibid
81 I have undertaken this evaluative assessment mindful of the matters proscribed and outlined in the legislative regime.
82 On your behalf it was submitted that the combination of substantial and compelling factors in this case which are exceptional and rare, cumulatively, are as follows:
a) unusual, inordinate and consequential delay;
b) youth, both at the time of offending and now;c) the non-rehabilitative and highly restrictive custody regime that you have been subject to;
d) the related deterioration in your mental health and diagnosis of generalised anxiety disorder, which operates to make imprisonment more onerous; and
e) the fact of your plea, as opposed to its timing, and the applicability of the Worboyes principles.
83 The prosecution submit that factors, including your rehabilitative prospects and early plea of guilty, are irrelevant. Also, it is submitted that your personal circumstances, including your youth and mental health, have limited impact compared to other factors such as the serious nature of home invasion. Further, the significant delay in your case is unfortunate but not rare.
84 On my assessment, while I consider that there are significant mitigatory factors in your case, I do not accept that the factors are sufficient to meet either stage of the evaluative test. Clearly the test to be applied is extremely onerous, almost impossible to satisfy (Buckley). As I have already noted, I accept that there has been substantial delay in the prosecution and finalisation of your case. However, I do not regard this, on its own or in combination with the other factors relied upon, including your youth, restrictive conditions in custody, mental health and plea of guilty during Worboyes, to be 'substantial and compelling and exceptional and rare'.
85 Putting the operation of this section aside, I note that given in particular the gravity of the offending, I consider that a proper exercise of the sentencing discretion calls for the imposition of a term of imprisonment.
86 I had you assessed for a community corrections order (CCO), making it clear at the time I ordered the assessment that I had not determined the appropriate sentence. You were assessed as unsuitable. I confirm that my evaluative assessment under s5(2)(H) has not been influenced by the opinions expressed in that assessment report, which I understand are not proven and are challenged by your counsel.
Prospects of rehabilitation
87 At the time of sentencing you, Mr Gabress, in December 2022 this court made the following finding which continues to serve as an accurate assessment of your circumstances:
88 While your prospects of rehabilitation are guarded you cannot be said to be beyond redemption and any sentence imposed should maximise your chances at rehabilitation. You are a young man who must be redeemable for your benefit and ultimately the community’s.
89 Ms Bovenkerk considers you present as a high risk of general reoffending, at least in part because of your prior criminal history, poor employment history, past reliance on drugs to cope, evidence of antisocial peer group and a general pattern of antisocial behaviour. She noted that you had 'Demonstrated a repeated pattern of engaging in offending behaviour despite sanctions, which have not deterred [your] behaviour.' She highlights, however, that you have not received treatment for your issues or been provided with an opportunity to address your criminogenic risk factors during your prison term.
90 In discussions with Ms Bovenkerk you continued to deny use of illicit substances in prison, you informed her that you had not participated in alcohol and other drug counselling and indicated a willingness to do so.
91 Ms Bovenkerk considers that you are likely to require substantial support and assistance in reintegrating and readjusting into the community and she makes a number of detailed and useful recommendations to mitigate risk and facilitate your rehabilitation.
92 Your counsel submits that you have hopes and goals for your future and you want to lead a better life. You spend your days now cleaning, reading, training and praying and have also managed to undertake a small business course. You have a supportive family to return to upon release. You call your parents and siblings daily and you have weekly zoom video calls. It is clear that you have their ongoing love and support and that there is an opportunity for work. Your father also refers to the observed positive changes you have made in terms of your health, spirituality and assessed motivations.
Other matters
93 I note that the only other person charged in respect of this offending was your 17 year old co-accused. He was only forensically linked to the stolen vehicle and charged with theft of motor vehicle. I was told he pleaded guilty in the Children’s Court and was sentenced in May of 2020. Given the different jurisdiction and the different charge that he faced, I consider that any parity considerations are displaced.
Sentencing purposes
94 Deterrence, both general and specific, are relevant sentencing purposes, along with punishment, denunciation and protection of the community. I accept the prosecution submission that protection of the community is a significant purpose in offending of this nature. As I have already indicated, I regard your youth, Mr Gabress, as an important consideration in the instinctive synthesis and rehabilitation as a primary sentencing purpose.
95 I take into account the sentencing guidelines referred to in s5 of the Sentencing Act (Vic) where relevant to your case. I have also had regard to the sentencing landscape for the charge of home invasion. In broad terms it can be accepted that offending of this nature ordinarily attracts a substantial prison sentence.
96 As both counsel accept, your case presents a difficult sentencing task. The prosecution submit that a term of imprisonment is required and appropriate. The prosecution submit that the most effective means of taking into account all matters, including the separate criminality of the offending, is to impose a straight concurrent sentence and one that is not entirely subsumed by the sentence you are currently undergoing.
97 Your counsel submits that you have received significant punishment for your offending which has taken its toll on your mental health and places you at risk of institutionalisation. Your counsel urged the court to structure a disposition that did not interfere with your current sentence end date so that you may return to the community to facilitate your rehabilitation surrounded by supportive family. Alternatively, if satisfied of the exception contained in s5(2H)(e) she submitted that a combination sentence was within range. I take into account the submissions made by both counsel including the further written submissions received today, particularly in respect of the operation of s15 of the Sentencing Act.
98 As already canvassed, there has been a substantial delay in the prosecution and finalisation of your case. Consequently, you are no longer eligible for a Youth Justice Centre order which you would have been at the time of the offending, having just turned 20. Also, you have lost the opportunity for this court to have incorporated this matter into the carefully structured sentence it imposed on 14 December 2022.
99 Of course it must always be kept in mind that fixing a non-parole period does not mean that parole will be granted and the court sentences on the basis that an accused person will serve each day in custody. However, on that occasion the non-parole period was fixed taking into account various factors, in particular your youth and the recommendations canvassed in the psychological reports. It was considered that the non-parole period set reflected the gravity of the offending on that occasion, the relevant sentencing principles including deterrence, and could also best promote and facilitate your rehabilitation. In light of the further subsequent matters that I have already referred to and the imposition of straight cumulative sentences, your eligibility for parole appears to have moved from December 2022 to 31 October 2023. This period has since lapsed, and as already noted, you have not yet applied for parole.
100 Mr Gabress, this is a very difficult and challenging sentencing exercise. The sentence I will impose in a moment will balance and reflect, as best I can, all relevant matters and give effect to the principle of totality. Having sentenced you on 14 December 2022, and also several of your co-accused, the court is very familiar with the offending on that occasion and your personal circumstances and is well placed to assess the aggregate criminality involved.
101 The only just and appropriate sentence in this case is a term of imprisonment. Given the unique circumstances of your case, I consider that the preferable and necessary course is to adjust and moderate the term of imprisonment to be imposed. I will also order that part of the sentence be served cumulatively, which I consider is necessary so as to adequately reflect the separate criminality involved in this offence.
102 In your case I consider that the principle of totality, along with the other powerful mitigating factors advanced on your behalf, including the delay in this matter and your youth, mitigate 'What strict justice would otherwise indicate'. (Rossi). To an extent I consider it calls for a somewhat merciful approach; one that after considerable reflection, I consider is capable of marking and reflecting the criminality involved in this offending while also reflecting your overall criminality and circumstances.
103 In very simple terms, your circumstances include that since the commission of this offence at the age of 20, you have now spent some four years in custody, from 23 August 2019 to 23 June 2020 and then from 12 January 2021 and ongoing, on a sentence that is currently due to expire on 13 October 2024.
104 Bearing in mind the order of the service of sentences, as dictated by s15, the sentence I impose will also preserve at least a remaining period of parole eligibility, which I consider would afford you structure and assistance upon your transition back into the community, and unless there is any objection, I will ensure that the reports before the court are provided to the authorities.
105 So, Mr Gabress, I have reached the point of the actual sentence.
Sentence
106 Synthesising, that is considering all relevant matters, on the charge of home invasion you are convicted and sentenced to a term of imprisonment of six months.
107 I cumulate the period of three months to be served with the sentence that you are currently undergoing.
108 I order that the other three month sentence is to be served concurrently.
109 What this means, Mr Gabress, practically, is you will now as of today commence the three month sentence and your current sentence will be suspended. You will then, after serving the three months, re-commence your current sentence of some seven months, or so, seven to eight months – I will calculate it in those broad terms – and the three month concurrent term. At the end of the three month concurrent term, which is operating with the remaining sentence, that is what I mean by 'concurrent', I anticipate that you will again become eligible for parole on any outstanding term.
110 I make the disposal order in the terms sought, which I have a note was unopposed.
111 I make no declaration pursuant to s18.
112 Section 6AAA, I must say, is very difficult in this case, but I can indicate that but for your plea of guilty I would have sentenced you to a term of approximately 13 months' imprisonment and set a non-parole period.
113 Counsel, is there anything further?
114 MS DAVIS: No, Your Honour.
115 MS E GEORGE: No, Your Honour.
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