Director of Public Prosecutions v Hagihashi
[2021] VCC 578
•10 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00677
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAHYA HAGIHASHI |
---
JUDGE: | TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2021 | |
DATE OF SENTENCE: | 10 May 2021 | |
CASE MAY BE CITED AS: | DPP v HAGIHASHI | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 578 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL
Catchwords: Plea of guilty – one charge of affray – one charge of theft – one charge of attempted aggravated home invasion – one charge of intentionally damaging property – youthful offender - circumstances of COVID-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R v Verdins & Ors [2007] VSCA 102
Sentence: Total effective sentence of 13 and a half months imprisonment with a 24 month Community Corrections Order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms K. Powell | Ann Valos |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1Yahya Hagihashi, you have pleaded guilty to one charge of affray, which carries a maximum penalty of 5 years imprisonment; one charge of theft, which carries a maximum penalty of 10 years imprisonment; one charge of attempted aggravated home invasion, which carries a maximum penalty of 20 years imprisonment; and one charge of intentionally damaging property, which carries a maximum penalty of 10 years imprisonment.
Circumstances of the offending
2Your plea was heard on 27 April 2021. On that date, your counsel had not had an opportunity to see the reasons for sentence for your co-accused, Mr Reid O'Brien, who I sentenced on 18 March 2021. I gave counsel leave to file written submissions once she was given that opportunity and on 3 May 2021, she did so. I have taken those into account. The Prosecutor replied in a subsequent document dated 6 May 2021. I have read them and taken them into account. For completeness, I mark them Exhibits 3 and (C), respectively.
3The facts giving rise to your offending are set out in detail in the Summary of Prosecution Opening, dated 2 April 2021 that became Exhibit A on the plea. That document is attached to and forms part of these reasons. I will not repeat it here but will refer to some of its contents in summary.
Charge 1: Affray
4At about 4.40 pm on the afternoon of 23 March 2020, you and your associates were drinking alcohol and generally being loud in a park near Munro Drive in Wyndham Vale.
5The victims of the attempted home invasion are Lyrehs Murray, Bishop Walker, Kepa Finau, Losa Mohi and Ms Schveilah Broughton who, unbeknownst to you, was seven months pregnant at the time of your offending.
6Mr Murray, Mr Walker and about six other young men left their house and walked towards your group in the park. When they approached, you and your associates ran off. Mr Murray, Mr Walker and their associates gave chase.
7
During the chase, you fell; you were then assaulted by three members of
Mr Murray's group. Other members of your group then decided to take large rocks from a residential garden bed and walk towards Mr Murray and his group.
8Eventually, you were released and walked towards your group to re-join it; the two groups facing one other in the middle of Munro Drive. A member of your group somehow then appeared on the scene, driving a black Holden ute at speed towards Mr Murray's group, nearly hitting Mr Walker, before driving off.
9Your co-accused and other members of your group then chased Mr Murray's group, still holding the garden rocks. You had by then somehow obtained a hammer and joined the chase. You then collectively chased Mr Murray's group back to their place, when you and other members of your group finally threw the garden rocks you were holding at members of Mr Murray's group; some of them found their marks. This conduct gives rise to Charge 1: affray.
10You and your group then ran off, but not before threatening to return later.
11Police were notified and attended. Nobody made a statement.
Charge 2: Theft
12
Later on that day at 5.47pm, you went to a nearby supermarket with
Mr O'Brien, where you stole a 15 centimetre kitchen knife. That conduct gives rise to Charge 2: theft.
13At 8.45 pm that same day, you and your group were again yelling in the parkland near Munro Drive. Mr Murray and Mr Walker could hear you from their place again.
14Other members of the household with Mr Walker, left their house, taking the children with them, apparently afraid of what might happen. Mr Walker, Mr Murray and a Mr Mohi remained inside.
15Shortly afterwards, two members of Mr Mohi's family arrived, Mr Kepa Finau and Ms Schveilah Broughton. Mr Finau walked towards the park, where he heard your group talking and yelling. As he was walking back, he heard people behind him. He told one of the young men to 'fuck off'. As Mr Finau continued walking, a white sedan sped around the corner and almost hit him; he was forced to jump onto the bonnet of the vehicle, before rolling off the car.
Charge 3: Attempted Aggravated Home Invasion
16You and your group started walking down Munro Drive. Members of the group carried large knives. Mr Walker, Mr Murray and Mr Mohi saw your group coming. They retreated inside and locked their door behind them.
17Mr Finau, who was still outside the house, quickly returned to the front of the house but one member of your group, who was holding a knife, attacked him. Mr Finau was able to disarm him before going inside the house and barricading the front door. You are not charged with and I am not sentencing you for that event.
18
I pause here to note that aggravated home invasion carries a mandatory
non-parole period of three years imprisonment, pursuant to section 10AC of the Sentencing Act 1991. It was the position of the Prosecution in this case that this section is not applicable to attempted offences. If you had been successful in gaining entry into the property, you would be serving a minimum of three years in custody. You got very close to effecting that entry. You should reflect about that.
Charge 4: Criminal Damage
19You and your group then set about destroying two cars parked in the driveway and on the nature strip of the house. This gives rise to Charge 3: intentionally damaging property.
Attempted Aggravated Home Invasion – continued
20You and members of your group then tried to force the front door of the house open. The people inside heard threats: members of your group said they would smash the door open, run through the house, and kill those inside.
21You were part of the group attacking the front door, cutting your hand on the security door and leaving drops of your blood, which were later collected by Police.
22Mr O'Brien was by then armed with a large black handled knife; he used the knife to crack open a front window. The knife pierced the window glass and almost made contact with Mr Finau's neck, before Mr O'Brien pulled the knife out and repeatedly tried to stab Mr Finau.
23Other members of your group tried striking a front window. When that failed, some of your group elected to pick up the mailbox and use it as a ram against the front door.
24Next, two members of your group broke the front bedroom window with two large tree stumps. Those inside barricaded the door into this room from the inside.
Events giving rise to Charge 2: Attempted Aggravated Home Invasion
25Meanwhile, other members of the Walker household drove past their house, saw what was happening there and called 000.
26Police arrived. You and your group ran off. The Police found you at 9.25 pm. The stolen knife was found underneath your jacket and your hand was bleeding from the cut from the security door.
27Other members of your group were also apprehended. Mr O'Brien was later sentenced by me. Another was charged with affray.
28The damage to the cars and outside of the property was extensive: a grey BMW belonging to Ms Schveilah Broughton had its tyres slashed, the front windscreen broken, the bonnet caved in and both side mirrors partially detached from the car. The cost to repair the car was $1070.
29A Subaru belonging to Ms Renata-Maihi was also damaged beyond repair. It was valued at $22,240.
30The damage to 20 Munro Drive, Wyndham Vale, was valued at $10,441.
Police attendance and arrest
31On 10 April 2020 you were arrested and interviewed by Police.
32You participated in a record of interview and denied knowing the location of the house at 20 Munro Drive. You otherwise gave 'no comment' when questioned.
33Later, you were re-interviewed and again denied any involvement in the attempted home invasion or otherwise exercised your right to silence.
Prior Criminal History
34You have a relevant prior criminal history. I give limited regard to a finding of guilt for affray in 2018 which was dealt with in the Melbourne Children's Court. But more concerning are convictions for possessing a controlled weapon, assaulting a Police officer and affray dealt with in adult court on 18 May 2018. There is another charge of possession of a controlled weapon in 2019. And I have taken these matters into account in the sentencing calculus.
Co-offenders
35
Reid O'Brien, who was then 19 years old, had his case commenced in the County Court at a plea hearing on 28 October 2020. Mr O'Brien's case was deferred to
1 March 2021 for the purpose of obtaining further evidence in relation to rehabilitation. On 18 March 2021, Mr O'Brien was sentenced to 30 days imprisonment with a 36 month Community Corrections Order and a $1000 fine. As explained later in these reasons, Mr O'Brien's case was exceptional.
36Another member of your group who was then 18 years old, was charged with affray and summary jurisdiction was granted to him in August 2020. I am not aware of the outcome of that matter.
Pre-sentence detention
37You have spent 388 days in custody.
Nature and gravity of the offending: culpability and degree of responsibility
38It is difficult to find words to describe this offending; it appears to be so purposeless. It was breathtaking, lawless violence, committed against people in your own community (and their property), for no apparent reason other than to indulge some desire for a confrontation over nothing. What you did was outrageous. The attempted aggravated home invasion was a serious example of this offence, having regard to the presence of weapons, the persistence of the attempt to enter, and what was said during the event. The criminal damage charge is also a grave example of the offence, though it is also said that that you were not solely responsible for this damage.
39There is little that can be said about why you offended in the way you did. It appears that some minor offence was caused in some meaningless exchange between the two groups and retribution was sought in that context. In other words, it was a fight over absolutely nothing, perpetrated by you and your co-accused, who had apparently developed a desire for some sort of confrontation.
40I make it clear that I am sentencing you for your role in the charges before the court; and only those charges; that said, your role was central to what occurred. These are grave examples of the offences.
Parity considerations
41Your co-accused, Mr O'Brien, was sentenced to 30 days imprisonment, a 36 month Community Corrections Order and a $1000 fine.
42
It was submitted that your conduct was somewhat less serious than that of
Mr O'Brien, who used a large knife in an attempt to crack open the front window of the house. I understand that there is perhaps a degree of separation in your respective conduct there. You face the additional charge of theft of the knife from the supermarket. Mr O'Brien was slightly younger, at 19 years old, whereas you were 21. Your counsel argued that your intellectual functioning places you, in real terms, closer to Mr O'Brien's chronological age, and that in the circumstances there is no particular difference in maturity between you. You were both on bail at the time of the offending. You both had relevant criminal history, though you,
Mr Hagihashi, had more appearances than Mr O'Brien. Mr O'Brien's case resolved earlier, though I do not regard this as a particularly significant factor in the context of the value of your plea.
43
I pause here to note that Mr O'Brien had a deferral of sentence and an extraordinary record of sustained rehabilitation, including full-time work, removal of himself from his previous peers, all of which contributed to his unusual sentence, but I also recognise what he got is the result of certain privileges that flowed to
Mr O'Brien and do not flow to you, who comes from a family of recent migrants and cannot call on the generational family structure that has been harnessed by Mr O'Brien. Ultimately, your counsel urged me to find that taking into account the various matters, you ought to be considered for a sentence that is on par with
Mr O'Brien.
44Mr Pickering, who appeared to prosecute this matter, filed submissions in reply. He argued that a number of factors, but particularly your more extensive criminal history and the stark contrast between Mr O'Brien's established rehabilitation and your circumstances, meaningfully separated you for the purposes of imposing sentence.
45While I accept that the matters between you are finely balanced, the consideration of protection of the community through rehabilitation that was so well-established by Mr O'Brien was a very significant matter in my imposing sentence on him in the way that I did. I acknowledge that there is a certain unfairness in the kind of opportunities that have flowed to Mr O'Brien and not you, but for the sentencing calculus these matters cohere in such a way that I think I am obliged to impose more imprisonment upon you than I did on Mr O'Brien.
Personal circumstances
46You are now 22 years old and were 21 at the time of the offending.
47You were born in Nairobi, Kenya, to parents of Somali heritage. Your family migrated to Australia when you are aged two, in the year 2000.
48Your father originally served in the armed forces and worked in banking, however, he passed away from complications of a stroke in 2016. You are one of 10 children in your family. You have 4 brothers and 5 sisters. 6 of your siblings still live at home.
49You went to school in Manor Vale from Prep to Grade 6. You completed secondary school at Werribee and completed VCAL. You have been employed for brief periods, first in carpentry for around 4 months at age 17 and later as a plasterer for about 2 months at the age of 18. You have otherwise been unemployed.
50You are physically healthy, however, during the period of your offending you felt unmotivated and depressed.
51A psychological report authored by Ms Cidoni was tendered on your plea. I take its contents into account but with reservations that I aired at the hearing.
52The psychological material suggested that you had borderline intellectual functioning, clinical symptoms of major depression and post-traumatic stress disorder with generalised anxiety. I raised my concerns about the PTSD diagnosis at the hearing. No reliance was ultimately placed on it. I accept that at the time of these offences you were experiencing some degree of clinical symptoms that suggest depression, and that your intellectual functioning was somewhat impaired.
53Ultimately, your counsel did not press a submission that your offending be regarded as less morally culpable on the principles expressed in Verdins. Ultimately, I do not find there is any moral reduction here, nor enlivening of the other limbs of Verdins, on account of the contents of this report.
Impact on victims
54
I must consider the impact on victims in this case. They were all given an opportunity to make statements about the effect of your offending on them;
Ms Broughton was the only one who chose to do so in your case, and I note that she had not provided a statement at the time of Mr O'Brien's plea. I acknowledge the contents of Ms Broughton's statement. She talks about the offending having a particular impact on her family, which was expecting their first baby at the time. They had just bought the car that you, with your co-accused, destroyed. It was arranged for the arrival of the new baby. I do not sentence you on the basis that you knew of Ms Broughton's pregnancy, however, you should know that the impact on real lives and real people from your offending is complex and ongoing.
55The victims of the affray are perhaps harder to identify, but I take into account that there were people not specifically identified who were exposed to this behaviour as they went about their normal lives, no doubt with their own problems and difficulties, but being subjected to this additional burden of your conduct. I think it is safe to infer that the other people inside the house were distressed and frightened by what you did, and I take that into account.
Matters in mitigation
Plea of guilty
56I turn now to some matters in mitigation. First your plea of guilty.
57The offending took place on 23 March 2020, and it is very important for your sentence that the community has been spared all of the costs, both human and financial, of having to prove the case against you; this is a very important matter and I take it into account.
58Further, at a time when the court system is much burdened by the backlog of cases that has occurred as the result of the COVID-19 pandemic, your plea of guilty has a particularly special significance.
Youth
59You are 22 years old. The community has a long-term stake in your recovery and you ceasing to commit offending. Your youth means that there is a very significant role for this sentence to assist your rehabilitation.
Prospects of rehabilitation
60Your prospects of rehabilitation are hard to assess. You are young still, and this means I am more inclined to act in a way that keeps your long-term rehabilitation, and therefore the protection of the community, to the fore. I am concerned that you have relevant prior convictions; and that you were breaching a Youth Supervision Order imposed on 18 May 2018, however, you have now also spent significant time in custody, your first sentence, and I will act on the assumption this has been sobering for you.
61Your counsel did not press independent submissions that you were remorseful, but I accept that your plea contains within it an aspect of remorse.
Relevant sentencing principles
62I am obliged to sentence you in a way that deters other people from behaving in a similar way. Moreover, you must be punished for what you did. I have considered the role for specific deterrence, that is the need to stop you from committing similar offences again. Through me, and the sentence that I impose, the community denounces this behaviour.
63I have had regard to current sentencing practices in this area. No case is exactly like yours, but I must sentence in this landscape.
Impact of COVID-19 Pandemic
64I take into account the current circumstances surrounding the COVID-19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs during a very significant part of your detention in custody. Some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports that you have access to. I take that into account.
The Corrections assessment report
65On the date of the plea, I requested a report from Corrections Victoria for assessment as to suitability for a Community Corrections Order. You were found suitable for that order. Unusually, the report writer has included details that are apparently from your prison file, setting out what she says are incidents recorded against you during your time in custody. The report writer notes that no outcomes were ever recorded. I make it clear that I have not had regard to this material in that report in arriving at your sentence.
66The upshot of the report is that you are assessed as suitable for a Community Corrections Order.
67The Prosecution in this case submitted that a combination sentence was within range in your case, while submitting that a term of imprisonment with a non-parole period was the more appropriate sentencing disposition. It is a finely balanced decision which of these options would be best; in the end I have chosen to combine a sentence of imprisonment with a Community Corrections Order, in part because you have never received a Community Corrections Order before.
68I also received a mental health assessment report dated 29 April 2021 (Exhibit D) and that report details some substance abuse issues that might be addressed.
Pre-sentence detention
69I declare that pursuant to s.18 of the Sentencing Act, you have now served 388 days of pre-sentence detention.
70On Charge 1: affray, you are convicted and sentenced to a Community Corrections Order of 24 months duration.
71On Charge 2: theft, you are convicted and sentenced to a Community Corrections Order of 24 months duration.
72On Charge 3: attempted aggravated home invasion, you are convicted and sentenced to 13 and a half months' imprisonment and in addition, a Community Corrections Order of 24 months duration.
73On Charge 4: damaging property, you are convicted and sentenced to a Community Corrections Order of 24 months duration.
74Pursuant to section 40 of the Sentencing Act 1991, I make one Community Corrections Order in respect of each of the offences identified as carrying that sentence.
75The Total Effective Sentence on this indictment is therefore 13 and a half months imprisonment and a Community Corrections Order of 24 months duration.
76In relation to the Community Corrections Order, I have given careful consideration to imposing unpaid community work conditions as part of the Corrections Order, and I have decided not to do so, given the nature of your sentence thus far and the sentence imposed on Mr O'Brien.
77You will be subject to the standard conditions of a Community Corrections Order. That means you must not commit any other offences that are punishable by imprisonment during the 24 month period.
78Let me be very clear about this: if you do reoffend at any stage in the next 24 months - that is two years, you will be brought back to Court before me and re-sentenced for these offences, and absent very, very powerful reasons, you should expect that will involve your further imprisonment.
79You must report to the Werribee Corrections Service within two days of your release from custody.
80You must advise your supervisor at Corrections of any change of address where you are living or working, and you must do so within two clear working days.
81It is a term of all Community Corrections Orders that you must submit to visits as directed, you must obey all of the instructions and directions of a Community Corrections Officer. You are not able to leave the State of Victoria without their permission, and that is for the entire 24 months.
Special conditions
82Special conditions that I will attach are as follows:
83You will be required to submit to assessment and treatment for drug use and alcohol use and to complete those programs if you are directed to do so.
84You must submit to supervision as directed.
85You must submit to mental health assessment and treatment as directed.
86You must also participate in programs to reduce reoffending.
87I also require you to participate in judicial monitoring. That means you have to come back to court, either in person or by video, in three months' time, and I will receive a report about your progress on the community corrections report.
s.6AAA Sentencing Act
88I declare that pursuant to s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty but been found guilty after trial, I would have sentenced you to a period of imprisonment of three years, with a non-parole period of two years.
Ancillary Orders
89I make the disposal order as sought.
- - -
0