Director of Public Prosecutions v Haskian

[2023] VCC 2062

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01390

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH HASKIAN

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2023
DATE OF SENTENCE:	27 September 2023
CASE MAY BE CITED AS:	DPP v Haskian
MEDIUM NEUTRAL CITATION:	[2023] VCC 2062

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Home Invasion – Co-offender – Young Adult Offender – Bugmy principles – Verdins principles – Remorse – Substance Abuse – Moral Culpability

Legislation Cited:                Crimes Act 1958; Sentencing Act 1991.

Cases Cited:R v Mills [1998] VR 235; Azzopardi v The Queen (2014) 35 VR 43; Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486; R v Howard [2019] VSCA 281; Worboyes v The Queen (2021) 96 MVR; Neal v The Queen (1982) 149 CLR 305; Barbaro v The Queen [2012] VSCA 288; Mohtadi v The Queen [2018] VSCA 238; Day (a pseudonym) v The Queen [2022] VSCA 73; Biba v The Queen [2022] VSCA 25; Bugmy v R (2013) 169 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Brown v The Queen (2020) 284 A Crim R 394; Akoka v The Queen [2017] VSCA 214; R v Djeri [2006] VSCA 195; DPP v O’Niell (2015) 256 A Crim R 469; Muldrock v The Queen (2011) 244 CLR 120; R v Hammond [1996] 2 Qd R 195; R v McKee [2003] VSCA 16; R v Lacey [2007] VSCA 196; DPP v Taleb [2019] VCC 2206; DPP v Salberg [2020] VCC 843; DPP v Lindsey & Anor [2021] VCC 1597.

Sentence:  Three years and six months imprisonment with a non-parole period of eighteen months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. White	Office of Public Prosecutions
For the Accused	Mr T. McCulloch	Fitzroy Legal Service

HIS HONOUR:

Introduction

1Joseph Haskian, you have pleaded guilty to one charge of home invasion, the maximum penalty for which is 25 years’ imprisonment.[1]

[1] Contrary to s 77A Crimes Act 1958.

2Home invasion is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991. The court must impose a custodial sentence unless an exception applies. It was conceded by your counsel that no exception applies in your case. I must therefore sentence you a term of imprisonment for this offence.

3The case against you was put on the basis that you, together with an unknown co‑offender, entered the victims’ home with the intent to steal and at the time, you knew that your co-offender had with him an offensive weapon, namely a knife.

Circumstances of offending

4A prosecution opening was tendered on the plea. It summarises the circumstances of your offending as follows.

5Late in the evening on Sunday, 25 April 2021, the victims, Kayla and Cory Moodie, picked up a friend, Paige Steet, from her home address and drove her to their home. It had been agreed she would sleepover to see their new house.

6At approximately 4.00 am on Monday, 26 April 2021, Mr Moodie woke up, got ready for work and left the address.

7At approximately 4.40 am on Monday 26 April 2021, you and your unknown male co-offender approached the carport at the back of the house carrying a red and black-coloured drill. Mrs Moodie and Ms Steet were asleep at the time.

8You and the unknown male forced the metal roller door open, bending it upwards, away from the ground.

9You then entered the property, leaving the drill in the carport. You both approached a locked metal security door and breaching it, then a locked wooden door leading to the main part of the house. You, Mr Haskian, located a shovel in the carport and used it to prise both doors open, causing minor damage. You and the unknown male proceeded to enter the house.

10Mrs Moodie heard loud banging noises coming from the back of the house. Ms Steet also heard the banging along with barking from the Moodies’ dog and a male voice yelling. Mrs Moodie went to go see what was causing the noise. As she walked out of her bedroom, she heard you entering the house.

11Mrs Moodie promptly entered the bedroom next to hers where Ms Steet had been sleeping and closed the door.

12You and the unknown male were heard screaming, asking whether anyone was home and demanding money. Your unknown co-offender proceeded to the bedroom in which Mrs Moodie and Ms Steet were standing, opened the door and started demanding money.

13Mrs Moodie, addressing your co-offender, said you had the wrong person and that she did not owe anyone any money.

14The unknown male produced a knife and said ‘I will fucking kill you if you don’t give me $1,000’. Mrs Moodie replied ‘you’ve got the wrong person’. The unknown co‑offender then put the knife to her throat and continued to demand money. Mrs Moodie feared for her life. The unknown male said ‘you owe John Burnett one thousand dollars. Remember the name John Burnett’. Thereafter, he continued to repeat the name and demand money, threatening to kill Mrs Moodie. Mrs Moodie had never heard the name John Burnett before.

15Mrs Moodie could see you, Mr Haskian, in the living room as you took her computer, ripping the cords from the power point.

16The unknown male made further mention of John Burnett before lunging towards Mrs Moodie with the knife. Mrs Moodie moved backwards, thinking she was going to be stabbed or killed.

17The unknown male left the bedroom, walked to the television in the living room, lifted it from its unit and threw the television onto the ground. You and the unknown male then left the property through the carport.

18Mrs Moodie called Mr Moodie but he did not answer. She left a voicemail message for him asking him to call the police. She also called her mother-in-law and asked her to call the police as well. She felt too panicked to call the police herself. 

19Police began an investigation and you were ultimately arrested and interviewed in relation to these matters on 25 June 2021.

Defence Submissions

20Mr McCulloch on your behalf has submitted that any sentence to be imposed on you ought to be lower than cases of comparable objective seriousness.

21He describes your prospects of rehabilitation as excellent as demonstrated by the fact that amongst other things, you have not reoffended in two years and have ongoing family support.

22It was submitted that your youth is also a significant factor. In the words of your counsel, this offence was committed by a 22-year-old man in crisis. He described you as a ‘half-painted canvas’. The Prosecution did not dispute the relevance of your youth and I accept that the principles derived from such cases as Mills[2] and Azzopardi[3] are applicable in this context. Your rehabilitation thus becomes an important sentencing principle in this case.

[2] R v Mills [1998] 4 VR 235.

[3] Azzopardi v The Queen (2014) 35 VR 43.

23He accepted that a term of imprisonment is required for this offending, however submitted that a lowered non-parole period could be imposed to reflect your prospects of rehabilitation.

Prosecution Submissions

24Mr White, on behalf of the prosecution, submitted that this is a serious offence and one which requires condemnation by the Court. He emphasised the fact that this offending occurred in the early hours of the morning and that you, Mr Haskian, carried a drill and that your co-offender carried a knife. He submitted that you forced your way into the Moodies' house, breaching three locked doors by prying the locks with a shovel.

25He conceded that you have a history of symptoms consistent with Post Traumatic Stress Disorder, Anxiety and Depression and that a connection exists between your symptomology and the offending. However, he did not go so far as to concede a causal connection in this case.

26As to your moral culpability, Mr White maintained that it is not at the highest end for offences of this nature, however nor did he accept that it was low. I will return to this later.

27The prosecution also accepted your prospects for rehabilitation were good, provided you can maintain your abstinence from illicit substances.

28As to the ultimate disposition, the Prosecution insisted that I must impose a term of imprisonment involving a head sentence with a non-parole period.

Personal Circumstances

29You were 22 years old at the time of the offending and are now 24. Your parents separated when you were three years old after which your mother re-partnered. As a result, you have two half-siblings. Your mother was subjected to regular and significant family violence during your childhood and early adolescence. Your family moved frequently from when you were young and the family spent time in unstable accommodation, including a period of years in a communal refuge. There were periods of homelessness.

30You became dependent on alcohol and methylamphetamine at the age of 14 after becoming exposed to these drugs during your time in public housing. You were also supplied with methylamphetamine by your stepfather within the home.

31You attended eight different schools before ultimately completing Year 10 at a small school for those needing additional assistance in education.

32You were taken to the emergency department in May 2021, very shortly after your offending, as you were in a psychotic state due to your drug use. You were admitted under an inpatient order and you were deemed at risk of suicide.

33You met your current partner in late 2021 and your daughter Layla was born November 2022.

34You have worked as a subcontractor for a concreting business since October 2022 and your employer has indicated that you will be able to return to your work after serving your sentence.

35You have a prior criminal court outcome relating to one charge of theft for stealing from a shop and one charge of possession of a prohibited weapon without exemption or approval, for which you were fined without conviction. This is of marginal relevance to the current sentencing exercise.

36Two reports by Gina Cidoni were tendered at your plea. She diagnosed you with several psychological disorders, including Other Specified Personality Disorder, Persistent Depressive Disorder (‘PDD’), Post Traumatic Stress Disorder (‘PTSD’), Stimulant Use Disorder and Substance Induced Psychotic Disorder.

37A bundle of 10 character references was tendered on your behalf. I have read them and considered their contents.

38You were supported in court by your family, including your mother, partner, brother, father and cousin Theo, and I understand you will continue to have their full support following your imprisonment. You are fortunate to have such support.

Objective Gravity

39Your offending was grave and had a considerable impact on the victims.

40The victim impact statements of Kayla Moodie and Cory Moodie were tendered on the plea and read aloud by the prosecutor.

41I was not furnished with an impact statement by Ms Steet, however I accept that this would have been a terrifying experience and would have had a profound impact on her.

42Kayla Moodie describes that she no longer sleeps well, waking up many times in the night and sometimes finds herself unable to sleep at all. She is constantly terrified and finds it extremely difficult to leave the house by herself. She says this has made her ‘a prisoner of [her] own mind and body’ and that your offending haunts her every day of her life. She describes having constant flashbacks, excruciating anxiety and fear for which she has been seeing a counsellor. She has had to take medication to deal with her insomnia and her anxiety. She says she has ‘never been the same ever since and nor will [she] ever be'.

43Cory Moodie similarly describes the difficulty that his wife has experienced during the night with sleeping, night terrors, flashbacks and fear for her life. He describes how they have had to move houses, add surveillance to their house and how when he is at work, his wife will call, petrified, asking him to check the cameras. He says ‘it’s hard to watch my wife go through this’ and wishes his wife can ‘feel safe again instead of being frightened for her life 24/7'.

44A letter from Dr Leach, Mrs Moodie’s general practitioner, was tendered on the plea. It confirms her experience of severe and debilitating anxiety, panic attacks, insomnia, low mood, suicidal ideation and post-traumatic stress symptoms involving hyper-vigilance and nightmares.

45The Court of Appeal said in Hogarth v The Queen:

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(s), irrespective of what may occur after entry.[4]

[4] (2012) 37 VR 658, 659 at [1] (‘Hogarth’).

46No doubt your offending was terrifying for the victims. It could hardly be otherwise - two women alone in a house listening as it is being forcefully broken into, then being subjected to forceful, unreasonable demands by a pair of strangers. When the police arrived, one of the victims was crying and struggling to walk.

47In DPP v Meyers,[5] the Court of Appeal outlined the features to be considered in assessing the seriousness of instances of aggravated burglary. Although in this case the offence is one of home invasion, the prosecution contends that the features identified in Meyers are nonetheless relevant here. I accept that this is so.

[5] (2014) 44 VR 486 (‘Meyers’).

48The features identified by the Court of Appeal in Meyers were:

(a)   the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);

(b)   the mode of entry;

(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 where they would be;

(g)   whether the offender was someone of whom the victim was particularly frightened.[6]

[6] Ibid at 498, [48].

49In this case, the intent was to steal. The entry was forcible. Your co-offender was carrying a knife. You were in company and this was in the early hours of the morning. It appears that you did not know whether anyone was inside of the house, as evidenced by the fact that one of you was apparently screaming from the back of the house, 'Is anyone home? Give us the fucking money'. However, your willingness to invade the home even when unsure about whether someone was present is still an aggravating feature of your offending. For completeness, I should note that those inside the house did not know who you were, and thus would have been especially frightened of you.

50On the analysis of the above facts, this is a serious example of a home invasion.

Plea of Guilty and remorse

51It was accepted by the prosecution that you pleaded guilty at an early stage, entitling you to a sentencing discount due to the utility of this plea.[7] It is also uncontentious that you pleaded guilty during a time where the courts are still experiencing the effects of the COVID-19 pandemic, and thus your early plea carries greater utility – and therefore greater mitigatory weight – in line with the principles enunciated in the case of Worboyes.[8]

[7] E.g., R v Howard [2009] VSCA 281 at [16].

[8] Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39] (‘Worboyes’).   

52It was submitted that your plea of guilty was accompanied by genuine remorse, and that I should take this into account when sentencing you. Where properly demonstrated, such remorse or contrition can have a considerable mitigatory impact on sentencing.[9] The offender must satisfy the court there is ‘genuine penitence and contrition and a desire to atone'.[10] It is not typically enough that an offender has pleaded guilty and a plea of guilt alone will usually only provide a utilitarian benefit.[11]

[9] Neal v The Queen (1982) 149 CLR 305, 314.

[10] Barbaro v The Queen [2012] VSCA 288, [38] (‘Barbaro’); Mohtadi v The Queen [2018] VSCA 238, [26]; Day (a pseudonym) v The Queen [2022] VSCA 73, [37]; Biba v The Queen [2022] VSCA 25, [21].

[11] Barbaro (n 10) [35].

53The best evidence of your remorse is your own words and actions. I have a letter you wrote to the court. In it, you write that you understand the pain and distress you caused the victims and you repeatedly say you take full responsibility for your actions. That letter was prepared for court and provided on the day of your plea. In the years since your offending you have not apologised to the Moodies or taken any step to mitigate their distress by for instance, assisting the authorities identify your co-offender or by endeavouring to return their property to them. Your bail conditions did not prevent you from reaching out to them in this way or from reaching out to them through the informant, but you did not. I accept that your early pleas must have been some consolation to them, but writing a letter for the court which you know will be handed up to the sentencing judge is a long way short of demonstrating pure regret untainted by self-interest. That said, as a mitigatory feature, evidence of your remorse need only be made out on the balance of probabilities. I accept on balance that you are sorry for the impact your offending has had on the Moodies.

54I also note from the letter of Jim Magioros that you sought treatment for your substance abuse issues. He writes that you asked him in June 2023 to refer him to a rehab program to deal with your addiction and anger management. This kind of initiative can indicate remorse and commitment to rehabilitation and I have taken it into account. Again, one could be cynical about the timing of your request noting the date of your plea and I note the tension between your perceived need for anger management and your mother’s characterisation of you as someone who is not given to anger, but I am prepared to act on the basis that your request of Mr Magioros was sincere.

55I have also received a letter from Mr Saso Avramoski which says that you have discussed this offending with him and he says you demonstrated insight into and contrition for your behaviour.

56I also note that Ms Cidoni states in her 22 June 2023 report that you expressed remorse and shame for your drug use during the offending. Ms Cidoni does not articulate how you expressed your remorse, but I will give this material the weight it deserves.

57The letter by Mr Abramoski says you have developed insight and remorse at least as early as February 2023 and that provides some support for accepting your gestures of regret as genuine. On balance, as I said, I accept that you are remorseful.

Prospects of Rehabilitation

58Your offending appears largely related to your drug use. If you can maintain abstinence in the future, your prospects of rehabilitation appear to be reasonable.

59You have a modest criminal history and you continue to enjoy the support of your family. Your mother at your plea hearing said she will continue to support you in the future no matter what.

60It is also to your credit that you have attempted rehabilitation to combat drug abuse on numerous occasions, despite setbacks.

61Ultimately, I accept that your prospects for rehabilitation are decent, if not without some doubt.

Bugmy Principles

62It was submitted by Mr McCulloch at your plea that the environment in which you were raised operates to reduce your moral culpability in keeping with the court’s decision in Bugmy v The Queen.[12]

[12] Bugmy v R (2013) 169 CLR 571 (‘Bugmy’).

63There, the 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 disposition.[13]

[13] Ibid, [43]-[44].

64Your mother, Ms Vicky Vacondios, gave evidence at your plea hearing. In essence, her evidence was that your childhood was one marked by exposure to family violence, unstable living conditions, homelessness and a range of traumatic experiences such as overdoses and violent assaults which occurred in your presence at refuges and temporary accommodation. Your susceptibility to taking drugs was heightened by your exposure to them in this setting.

65Your circumstances fit squarely within those described by the court in Bugmy, and I find your moral culpability lowered. I have ameliorated your sentence accordingly.

66Whilst the Prosecution conceded that your childhood experiences lower your moral culpability, they also sought to argue that your response to your childhood experiences increases the need for community protection. I was taken to the next portion of the passage cited by defence which reads as follows:

...An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[14]

[14] Ibid [44].

67On this basis it was submitted that your demonstrated propensity for violence stemming from your traumatic experiences justifies a finding that community protection as a sentencing principle bears more heavily on the sentence I am to impose. I was referred to two reports authored by Ms Gina Cidoni, wherein she offers several opinions on your personality, notably:

(a)   you display a wish for revenge;

(b)   you counter the risk of pain and depredation with duplicitous behaviour;

(c)   you seek to avoid abuse through insensitivity and ruthlessness;

(d)   your behaviour is characterised by oscillating between 'explosive anger' and 'periods of guilt and shame';

(e)   the results of the Violence Risk Assessment testing place you in a category of offenders who have a 44% chance of reoffending violently within seven years of release from custody and therefore you possess a moderate risk of violent recidivism.

68Although there is some force in the prosecution’s submission that the social disadvantage you experienced and the effect of it on you has resulted in an increased need for community protection, there is insufficient material before the court to demonstrate that at this point of your life there is an increased need for community protection. This offending appears to be heavily drug and peer influenced and you have distanced yourself from both precipitants; your criminal history is not so entrenched that it demonstrates that the community needs to be protected from you, despite the gravity of this offending. I also note your age and the positive steps towards your rehabilitation undertaken already. None of that lowers the objective gravity of this home invasion - your criminal conduct in breaching the Moodies' home was an alarming and grave example of home invasion but given your age and scant exposure to the criminal justice system to date, the community’s best interests are served by your reformation, rehabilitation and reintegration.

Verdins Principles

69Mr McCulloch submitted that your psychological state is such that your sentence should be further ameliorated. From R v Verdins, a sentencing court is able to ameliorate an offender's sentence in one of six ways.[15] Before any weight can be attributed to any of the six limbs of Verdins, sufficient evidence needs to be adduced demonstrating:

…a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[16]

[15] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 276 [32] (‘Verdins’).

[16] Brown v The Queen (2020) 284 A Crim R 394, 409 (‘Brown’).

70Submissions were made by your counsel to the effect that limbs 1, 3, 5 and 6 of Verdins are enlivened. These submissions were based largely on two psychological reports authored by Ms Cidoni, and the testimony of your mother.

71The prosecution conceded that there is a sufficient connection between your mental impairments at the time of your offending and your offending conduct to reduce your moral culpability somewhat as provided for by the first limb of Verdins. However, the prosecution drew my attention to commentary by the Court of Appeal to the effect that substance abuse and dependency can only ever provide slight mitigatory value to a sentence.[17]

[17] Akoka v The Queen [2017] VSCA 214 at [119] (‘Akoka’); R v Djeri [2006] VSCA 195 [13].

72In light of the furious agreement of the parties, I am prepared to find that your moral culpability is to be lowered in line with the first limb of Verdins. This is not done without reservation however.

73In written submissions filed by the defence it is conceded that your drug use 'clouds any "realistic connection" that could be drawn between (your) mental impairments and (your) offending'. That stance was not resiled from during oral submissions. Insofar as Ms Cidoni’s reports refer to a lowered moral culpability for your offending, Ms Cidoni accepts that your psychological symptoms are 'exacerbated by substance abuse' and that your consumption of drugs 'exacerbated aggressive behaviours evident in' (your) offending. Ms Cidoni was unable to offer a definitive opinion as to how your mental impairments would have affected your behaviour at the time of offending, merely stating that they would have done so.

74During oral argument it was clarified that the Prosecution’s concession in relation to the application of Verdins was founded on the medical discharge summaries tendered on the plea rather than Ms Cidoni’s opinions. Having read both the discharge summaries and the larger patient record files, it is unclear how these documents illuminate your mental impairments at the date and time of the offending, given that your admission was some days after the offending and does not offer an opinion about your mental state at the time of offending. Accepting that you were floridly psychotic when admitted to hospital, the prosecution appears to accept that your condition at the time this offending was committed was similarly compromised. There are a number of logical steps you took in the commission of these offences such as the sourcing of a shovel, the breaking of locks with the shovel, the theft of a computer and working cooperatively with your co-offender. These all point to a greater lucidity than you exhibited five days later when you were admitted to Northern Hospital. The discharge summary is very limited in assisting me to determine the extent of the reduction of your moral culpability.

75In its written submissions the prosecution accepted that you have a history of symptoms consistent with PTSD, Anxiety and Depression and observed that on page 10 of the Northern Hospital Discharge Summary, it notes '   resolving substance intoxication on background of eight years of polysubstance use and developmental trauma, with possible co-morbid post-traumatic stress disorder and depression and suicidality'. Mr White then notes that whilst it is generally the case that substance abuse and dependency will provide scant excuse for offending, the prosecution nonetheless concedes on balance that there is a connection between your symptomatology at the time of your offending and your conduct in committing this crime.

76I have struggled to find the evidence sufficient to meet the evidentiary test restated in Brown.[18] Throughout this sentencing exercise I have reminded myself of the caution to be exercised by sentencing judges before finding that Verdins is enlivened.[19] Nevertheless, I am persuaded that this threshold has been met, and I have ameliorated my assessment of your moral culpability accordingly.

[18] (n 18).

[19] Brown (n 6); Director of Public Prosecutions v O’Niell (2015) 256 A Crim R 469, 489 [80].

77As to the third limb of Verdins, Mr McCulloch submitted that the presence and effect of your mental impairments at the date of your sentencing make you an unsuitable vehicle for general deterrence. Having taken into account Ms Cidoni’s assessment of your mental state at the time of authoring both her reports, in conjunction with the opinion expressed in the Discharge Summary from North West Mental Health tendered on your plea, I accept that some sensible moderation of general deterrence is warranted.

78The prosecution conceded in their written submissions and at your plea that your mental impairments are such that imprisonment will weigh more heavily on you, thereby enlivening the fifth limb of Verdins. I have ameliorated your sentence accordingly.

79As to the submission by your counsel that prison would have a deleterious effect on your mental health such that the sixth limb of Verdins is engaged, the prosecution tendered a letter from the Department of Justice and Community Safety (‘DJCS’) dated 7 July 2023, wherein the author describes the various services available to prisoners to obtain mental health treatment whilst incarcerated. On this basis, it was submitted the risk of deterioration in your mental health whilst serving a term of imprisonment was insufficient to enliven the sixth limb of Verdins.

80On this point, I have had regard to the statement of the High Court in Muldrock v The Queen who, in regard to different factual circumstances, said:

In any event, it was an error to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full‑time custody. Full-time custody is punitive.

…

the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence.[20]

[20] (2011) 244 CLR 120, 140 at [57].

81I take the court to mean that the mere existence of such programs within the prison system is insufficient alone to ground a finding that a prisoner will undergo rehabilitation or treatment whilst serving a term of imprisonment.

82Further, weighing against the prosecution’s submission are the findings of Ms Cidoni. In her report dated 22 June 2023, she notes that the mere act of imprisoning you risks exacerbating the symptoms of your persistent depressive disorder, PTSD and substance induced psychiatric disorders. She also notes that your familial relationships have been a positive influence on your previous rehabilitation efforts, and thus being deprived of access to these family members would have a deleterious effect on your rehabilitative prospects. She is also critical of 'The lack of trauma-informed care' available to prisoners, in stark contrast to the letter provided by the Department.

83On balance I am prepared to find that a period of imprisonment will have a significant adverse impact on your mental health such that limb 6 of Verdins is enlivened.

Moral Culpability

84To return to your moral culpability for this offending, there are some additional relevant considerations.

85You played an integral role in this offending. You took part in the opening of the various doors necessary to force entry into the property, and once inside you supported the demands for money of your co‑offender with your presence, remaining there for the duration of your co-offender’s conduct.

86Your mother gave evidence to the effect that you were introduced to drugs at a very young age, such that I am of the opinion that the decision to experiment with drugs was not ‘freely made’. Therefore, in light of the overwhelming and uncontested evidence that you were under the influence of narcotics at the time of offending, I am satisfied that there is a sufficient connection between your drug addiction and your offending. To borrow from the Queensland Court of Appeal, your offending in this matter can aptly be described as:

'…a secondary consequence of desperation produced by a human weakness rather than a primary choice.'[21]  

[21] R v Hammond [1996] 2 Qd R 195, 199-200.

87I have therefore lowered your moral culpability for his offending in line with the principles enunciated by the courts in R v McKee[22] and R v Lacey.[23]

[22] [2003] VSCA 16, [12]-[13].

[23] [2007] VSCA 196 [16]–[17].

88In summary, I find that your moral culpability for this offending is at the mid-range. In coming to this determination, I have considered the following factors:

(a)   the extent of your role in this offending;

(b)   the relationship between your addiction, your mental impairments, and this offending; and;

(c)   the considerable influence of your childhood deprivation.

Delay

89This offending occurred on 26 April 2021. On 4 August 2022, over a year ago, you indicated an intention to plead guilty to one charge of home invasion. Your plea hearing before me occurred on 14 September 2023.

90This means that since the offending, it has taken some two and a half years to bring this matter to a close.

91Not all of that delay is attributable to you, though some of it may be considered to be.

92The time between your arrest on 25 June 2021 and the first charging of the matter on 22 November 2021 is a period of about five months.

93I am also told the plea was originally listed in February of this year but was delayed given your intention to obtain a further neuropsychological report. Ultimately, this report could not be obtained due to funding issues.

94The time between your indication to plead guilty in August 2022 and the first listing of plea in February 2023 does not seem to be attributable to you, and I take it into account.

95Delay can be a powerful mitigatory factor. On one hand, it is punishment in and of itself to have serious charges hanging over your head for an extended period.

96As for how you have used this time, it is clear that you have made some steps towards your rehabilitation since the offending conduct. You have started a family with your fiancée, and you have attempted rehabilitation from drugs. I take this aspect of the delay into account when sentencing you.

Residential Rehabilitation

97Mr McCulloch argued that the time you have spent in residential rehabilitation should be treated as Akoka time for the purpose of this sentence.[24]

[24] (n 19).

98In that case, the Court of Appeal found that time spent in residential rehabilitation prior to sentencing can be used to moderate a sentence, given the often-punitive nature of such programs.[25]

[25] Ibid at [105]-[106].

99In a letter from Roger Vistarini, program director of Dreambuilders Centre 4 Change, dated 13 September 2023, you have undergone 27 days in their residential rehabilitation program. Mr Vistarini does not detail whether the conditions in which you underwent residential rehabilitation were punitive. He does say that you were unable to commit to the rigour of their programme for a longer period. This morning at 9.55 I was handed a Dreambuilders brochure setting out the program’s agenda. It does not indicate how restrictive of an individual’s liberty their program is, save for at the 'assessment' phase, a period of four weeks. I have elsewhere had regard to the steps you have undertaken to rehabilitate yourself, but there is insufficient material before me to extend what is colloquially referred to as the Akoka discount to you. Had I done so, it would have had a negligible impact on your sentence given the brevity of your participation in the program.

Sentencing Principles

100Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:

(a)   to punish you in a manner and to an extent which is just in all of the circumstances;

(b)   to deter you or others from committing similar offences in future;

(c)   to facilitate rehabilitation;

(d)   to manifest the denunciation of your conduct;

(e)   to protect the community; or

(f)    a combination of two or more of these purposes.

101It was accepted by both parties that your rehabilitation must play a central role in the sentence I am to impose.

102The prosecution submitted that the principles of deterrence, denunciation and just punishment all have a role to play, but that community protection is of particular importance. On this point, I was referred to the nature of the offending, and the application of the principles in Bugmy, both of which I have already discussed.

103However, it was also submitted to me by Mr White at your plea that community protection is best served by your rehabilitation. That is a sentiment with which I agree.

104The prosecution made reference to a number of other cases in order to demonstrate current sentencing practices.

105These are DPP v Taleb,[26] DPP v Salberg,[27] and DPP v Lindsey & Anor.[28]

[26] [2019] VCC 2206 (’Taleb’).

[27] [2020] VCC 843 (’Salberg’)

[28] [2021] VCC 1597 (’Lindsey’).

106Each case must be determined on its own facts. Nonetheless, these cases have been instructive for me in framing my sentence.

107I note the remarks of Judge Sexton in Taleb, where His Honour said:

Whilst it is frequently said that all cases are fact specific, and sentencing should not be reduced to a mathematical equation or comparison, clearly, the recent decision of O'Brien highlights the gravity of the crime of home invasion, the need for significant punishment in the form of a term of imprisonment, and the importance of general deterrence in cases such as these.[29]

[29]Taleb (n 29) at [73].

Sentence

108Mr Haskian I will now proceed to sentence you.

109Mr Haskian I sentence you as follows:

110On Charge 1, Home Invasion with an Offensive Weapon, you are convicted and sentenced to 3 and a half years’ gaol with a non-parole period of 18 months.

111You have served 13 days on pre-sentence detention and I declare this as time served.

112Pursuant to s6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty I would have sentenced to you 5 years with a non-parole period of 2 and a half years.

MR McCULLOCH:   May it please the court.

HIS HONOUR:  I note that the indictment was amended to change the spelling of Mr Haskian's name. Leave is granted to amend the indictment in that fashion. I take it there's no objection.

MR McCULLOCH:  No, Your Honour.

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