Director of Public Prosecutions v Hermos

[2022] VCC 2185

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-20-01560

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL HERMOS

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	7-9 September, 2 November 2022
DATE OF SENTENCE:	6 December 2022
CASE MAY BE CITED AS:	DPP v Hermos
MEDIUM NEUTRAL CITATION:	[2022] VCC 2185

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence upon guilty verdict

Catchwords:              Sentencing – aggravated home invasion – reckless conduct endangering persons of serious injury – reckless conduct endangering life – intentionally causing injury – 33 years old offender – minimum non-parole period – clear planning and preparation – obtained information regarding the victim’s safe – wore disguises – carried firearm – discharged the firearm in the presence of the victims – hit the victim’s head with a metal firearm – custody made more onerous due to offender’s absence contributing to his family’s hardship – delay and proven rehabilitation – totality and degree of cumulation – poorly controlled depression – low cognitive functioning – limited reasoning ability

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Sentence:Total effective sentence of seven years and nine months, with non-parole period of five years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	F. Cameron	Office of Public Prosecutions
For the Accused	C. Farrington	Theo Magazis and Associates

HIS HONOUR:

1Paul Hermos, on 9 September 2022 you were found guilty by a jury of 12 of aggravated home invasion (Charge 1; maximum penalty 25 years), reckless conduct endangering persons of serious injury (Charge 3; maximum penalty: 5 years), reckless conduct endangering life (Charge 4; maximum penalty: 10 years) and intentionally causing injury (Charge 6; maximum penalty: 10 years).

Circumstances of Offending

2The circumstances of your offending are outlined in the summary of prosecution opening for trial, dated 1 April 2021.

3In summary, at about 1 am on 7 September 2019, you and two other men, went to a house in Deer Park, the home of Mr Huan Nguyen and Mrs Hien Nguyen.  They lived there with their eight-year-old daughter, their 19-year-old niece and Mrs Nguyen's mother.  At the time, Mrs Hien Nguyen was 22 weeks pregnant. 

4The Nguyen family were all in their beds asleep when you parked a light-coloured sedan with the two co-offenders as passengers across the Nguyen's driveway. You three disguised yourselves with balaclavas and gloves. You armed yourself with a gun, one co-offender with garden shears and the other with a knife.  Together you approached the Nguyen's front door and kicked it repeatedly until it broke open and you went inside with the firearm, knowing it was likely there was someone at home at the time (Charge 1, aggravated home invasion).

5Mr Nguyen, hearing the noise, got up and walked out of his bedroom into the kitchen to investigate.  Seeing him, you rushed towards him, pointing the gun at his face, demanding to know who is in the front room and where the safe was.  Your co-offender with the knife then kicked down the front room door, this was the niece's room, that co-offender directed her at knifepoint into the kitchen where you told her to lie on the floor next to Mr Nguyen, whom you were standing over.

6The offenders brandishing the knife and the shears then approached the grandmother's bedroom door, they kicked and pushed it to gain access.  Once inside they demanded money from her and searched her wardrobe, emptying its contents in search of valuables.  

7They then approached Mr and Mrs Nguyen's room where Mrs Nguyen was with their eight-year-old daughter.  Realising what was happening, she had locked themselves inside for protection. The co-offenders broke down the door and eventually found the safe on the bedroom floor.  Despite Mrs Nguyen pleading that she was pregnant and that she did not know the safe's password or have a key for it, they dragged her by the neck from the bed to the floor.  They told her that if she did not reveal the password she would die.  You will not be sentenced for their conduct in these other rooms.

8Meanwhile in the kitchen, you again pointed the gun at Mr Nguyen and told him that if he did not provide the password for the safe you would shoot him.  Having heard her scream from the bedroom which was adjacent to the kitchen, he pleaded with you not to hurt his wife.  He did not tell you the password.  You then discharged the firearm twice into the ceiling (Charge 3). Mr Nguyen then ran from the kitchen.  You caught him as he approached the front door and in the struggle that ensued, you hit him with the firearm to the head causing a 7-centimetre laceration and to bleed (Charge 6). During the scuffle between you, Mr Nguyen grabbed your balaclava pulling it from your head and dropping it, before breaking free and running outside across the street screaming for help. 

9During this time, you discharged a third shot into the wall of the main bedroom from the kitchen, where Mrs Nguyen, her daughter and her mother were huddled together (Charge 4). You and the other offenders then ran from the house. Mrs Nguyen followed and saw the sedan parked across the driveway as you got in and sped away. 

10Police arrived at 1.54 am.  They arranged for Mr Nguyen to be taken to Sunshine Hospital for treatment to his head wound.  He required six stitches and had other bruising and abrasions to his arms and chest.

Procedural History

11Police arrested you on 20 September 2019 and interviewed you.  You answered questions, but denied any involvement in, or knowledge of the offending.  They showed you stills from the CCTV camera located in the Nguyen's driveway, depicting you all breaking down the front door of the Nguyen home.  You responded, 'That's not me, that's not me.  It does not look like me at all.' You provided a DNA sample for analysis and your fingerprints. 

12You were remanded in custody following the interview. 

13You conducted a contested committal proceeding during which the victims, police and a DNA expert were cross-examined on 9 November 2020.  About a month later you were granted bail by this court on 17 December 2020 and released on conditions and sureties amounting to $550,000.

14

On 4 April 2022, you pleaded not guilty before a jury panel, however the jury was discharged through no fault of your own.  A second jury was empanelled on

8 April 2022, but then discharged for COVID-related reasons, on 12 April. 

15

Your trial ultimately commenced on 7 September 2022 and on 9 September the jury found you to have been the offender with the firearm and convicted you of

Charges 1, 3, 4 and 6. Your plea was conducted on 2 November 2022.

Personal Circumstances

16

You are the second of four children to your parents and long-term partner of

Ms Kovacevic, with whom you now have two children aged six years and three months respectively. 

17You went to school until Year 9 but struggled academically.  You left school to enter the workforce and have aimed to maintain employment since. 

18

You have admitted that you first used alcohol and cannabis when you were about 13, and methamphetamine in 2006, when you were 18.  You developed a habit that persisted until your arrest in this matter at which time you said you were using

1-2 grams per day.  This was clearly a very significant habit.

19Consistent with this drug use you admitted a criminal history dated from 2007, when you were 19 years old.  It consists mainly of dishonesty and driving offences for which you have been sentenced to a Community Correction Order when you were 20, a six-month term of imprisonment, served as at Intensive Correction Order when you were 21, and four months imprisonment wholly suspended when you were 25.  You do not have a significant history of violence.

20During your remand on this matter, Corrections conducted drug testing randomly dated 15 November 2019, 19 November 2019, 15 January 2020, 14 August, 2020 and 20 November 2020, all results being clear of drugs. You completed Certificate II in kitchen operations in February 2020, and a six hour program about using ice (Exhibit 6)

21

Clinical Neuropsychologist, Matthew Staios assessed you in early 2020 while you were in custody.  He provided a report dated 19 April 2020 (Exhibit 7). You told him that you had a stable and happy home life as a child but then when you were

eight years old on holidays with your family in Syria, you were sexually abused.  Your family did not believe you when you told them and no one was charged.  You spoke about the negative effects this had on your subsequent development.

22

In more recent times, in about 2018 having broken up with your long-standing partner to pursue a relationship with another woman, also a drug user, for about a year, and with whom you had a child, sadly this child died of SIDS at about

two months age.  You were understandably depressed about this and increased your drug use to soothe yourself. You reconnected with your partner around the time of your remand in this matter.

23

Mr Staios stated that your poorly controlled depression, repressed anger, and your depleted ability to form trustful relationships with others, help explain your

long-term drug use.  Mr Staios assessed you as having borderline to low cognitive functioning and of limited reasoning ability.  He did not find evidence however, of brain injury caused by substance abuse or otherwise. He said that your functioning has led to your externalising of any acute emotional distress.  I note that Mr Staios did assess you as displaying strengths in understanding social rules and concepts.

24Clinical Psychologist, Mr Michael King stated he commenced treating you in December 2019 and provided a report on your progress dated 27 October 2022 (Exhibit 1).  Having read Mr Staios' report and a letter from your lawyer, Dr King made generalised comments about the harmful effects of using amphetamine. At page 2 of the report he records your improved performance on verbal, visual and executive functioning measures since ceasing your use of amphetamines.  Dr King concluded that your participation in therapy with his service has produced evidence of repair to your core brain functions which make you capable of making more socially acceptable decisions, rather than using amphetamine.  Otherwise, I was unassisted by the generalised commentary in that report.

25Amanda Brown of Lamberti and Associates provided a report about your engagement in treatment dated 1 June 2022 (Exhibit 3).  She stated that you first engaged with that service in December 2020, and since then you have engaged in weekly counselling, obtained good insight into your drug use, developed skills in relapse prevention and harm minimisation and that you are now surrounded by people who support your recovery.  She states you are now in the maintenance stage of recovery and that your prospects of future abstinence are optimistic. Ms Brown's report consists of multiple opinions with scant reference to any basis for them.  It does not spell out how any engagement with Lamberti related, if at all, to the work of Dr King.  Nor is it clear what expertise or qualification Ms Brown has for providing such evidence.  In those circumstances I give her opinions little if any weight.

26Upon your release on bail, you found work driving trucks with an asset management company and then in February 2020 you started work for Calcorp Cleaning Services collecting skip bins.  Noons Lince Annunziatto wrote a letter dated 25 October 2022 (Exhibit 5) that you were an impressive worker with them until April 2022, when you finished to start your own business. While you started there casually, you were soon promoted to full-time and then as a team leader. He observed your good work ethic and the responsible attitude you took to your family and work colleagues. 

27In April 2022, you began a small business involving the purchase and financing of a truck, working on a large-scale construction project. In relation to this you provided various business certificates and documents (Exhibit 6).

28As confirmed by a medical summary dated 20 September 2022 (Exhibit 4), your partner Ms Kovacevic suffers from glaucoma related difficulties for which she has been treated since 2019.  She has been able to manage the small business in spite of her eye problem with some difficulty as well as managing the children and your home.

29Psychologist Dr Shannon Wilson, in her report, dated 27 October 2022 (Exhibit 2) assessed your six year old son, who has started to display obsessive and anxious behaviours.  They came to light initially in 2019 when you were first remanded and your son engaged in hair pulling to the extent that he developed bald patches.  They abated when you were on bail, but with COVID, having a new sister and moving house, increased in the months before your remand after trial. Rather than diagnosing a specific disorder, the psychologist recommended various interventions to manage the distress by way of visits, zoom contact and increasing routines and a sense of control in your son's circumstances.  I expect that your inability to be with your family and share the load weighs on you and will be front of mind every time you have contact with them.

Sentencing Matters

30As to the seriousness of your offending, it must be recognised that little would strike more fear and terror into the hearts of a young family, than a group of armed men breaking into their home during the middle of the night to assault them with weapons, including a gun, and to steal their money.

31This home invasion was clearly planned.  You had information about the safe; you wore disguises; you had a firearm.  Your breaking down the front door as soon as you arrived also shows your purpose and dedication.

32The discharge of the firearm in the presence of others similarly demonstrates the extent to which you were prepared to go to steal from the Nguyen's and to terrorise them in the process.

33Hitting Mr Nguyen in the head with a metal firearm causing a laceration that required stitches, was a particularly grave example of the offence (of intentionally causing injury).  The fact that you did so in his own home while he was trying to flee, underscores the reason for stern punishment.

34The jury's verdict means that you must be sentenced for being the offender with the firearm and having discharged it.  However, I do not take into account your status as a prohibited person, if you were, when doing so.  This would represent separate and further criminality if it were proven or admitted by you.

35I accept the significance of your drug use and that it played a role over many years in you losing your way.  While I have reservations about the content and reliability of some of the material tendered about your drug treatment, I am willing to accept that you have remained drug free whilst on bail and applied yourself diligently to employment and setting up your own business. Accordingly, I find that you have reasonable prospects of rehabilitation.

36It was not suggested that the principles in the cases of Verdins or Bugmy apply in this case.

37I have considered the evidence about your son's psychological circumstance and the medical evidence about your wife's eyesight and the burdens that she faces.  I am not satisfied that they are, in combination, exceptional, and so I cannot reduce your sentence on that basis. I do find, however, that your time in custody will be harder knowing that your absence is contributing to your family's hardship.  I'll moderate your sentence for that reason.

38Your counsel, Mr Farrington submitted that the delay in progressing this matter to sentence has not been your fault.  I accept that.  The delays due to the COVID pandemic mean that your trial could not be heard at an earlier time, and during this time you have demonstrated your ability to succeed in rehabilitation.  This is an important achievement for you, and I acknowledge it. I will reduce your sentence and particularly your non-parole period, to permit you to continue your rehabilitation in the community at the earliest stage that justice in this case permits.

39I also find that your time in custody during the early stages of the pandemic was more onerous than it should have been, because of quarantine and lockdown, the lack of work and programs, the cessation of visits and the increased isolation from your family that occurred. This time will have been more harshly punitive than normal and while you will get the benefit of emergency management days, I will nevertheless reduce your sentence accordingly.

40I have considered the totality of your offending, and will cumulate sentence in relation to the criminality involved in each charge, but only to the extent that it produces an appropriate total sentence. 

41I acknowledge the operation of s 10AC of the Sentencing Act, that requires a minimum non-parole period of three years for the home invasion offence, however as you properly conceded through your counsel, there is no suggestion that a shorter period should be fixed in this case.

42I sentence you as follows:

(a)   On Charge 1, aggravated home invasion, 6 years and 6 months;

(b)   On Charge 3, reckless conduct endangering persons, 12 months;

(c)   On Charge 4, reckless conduct endangering life, 2 years; and

(d)   On Charge 6, intentionally causing injury, 2 years.

43

Three months of the sentence on Charge 3, six months of the sentence on

Charge 4 and six months of the sentence on Charge 6, are to be served cumulatively upon each other and upon the sentence in Charge 1. 

44The total effective sentence is 7 years and 9 months. 

45I fix a non-parole period of 5 years.

46

I declare that you have served 544 days, that is 457 days from 20 September 2019 to 20 December 2020, and 87 days from 9 September 2022 until

6 December 2022, not including today, by way of pre-sentence detention. I direct that this be reckoned as having already been served on this sentence.

47I make the Forfeiture Order as sought, unopposed.

48I make the Disposal Order as sought, unopposed.

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