Director of Public Prosecutions v Hingano

[2019] VCC 2068

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MILDURA
CRIMINAL JURISDICTION

CR-19-01694

DIRECTOR OF PUBLIC PROSECUTIONS

v

TALIA HINGANO

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2019
DATE OF SENTENCE:	10 December 2019
CASE MAY BE CITED AS:	DPP v Hingano
MEDIUM NEUTRAL CITATION:	[2019] VCC 2068

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:  Youthful offender – home invasion – destroying property and   common assault – participation in sentencing conversation in the Koori Court Division – early plea of guilty – good       evidence of rehabilitation prospects – non-custodial   sentence imposed
Legislation Cited:  Sentencing Act 1991
Cases Cited:  R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R;      Gabriel v R (2011) 35 VR 43; R v Morgan [2010] VSCA 15 at [11], Honeysett v R (2018) 56 VR 375; Director of Public   Prosecutions ('DPP') v Heyfron [2019] VSCA 130

Sentence:Order made that Mr Hingano be detained pursuant to a Youth Justice Centre Order for 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Doherty (For Plea)	Abbey Hogan, Acting Solicitor for the Office of Public Prosecutions
Ms C. Foot (For Sentence)
For the Accused	Ms J.Turfrey	Rebecca Boreham Solicitors

HER HONOUR: 

1Talia Hingano, you have pleaded guilty to one charge of home invasion, and that relates to an occasion on 14 January at Robinvale when  you entered as a trespasser a home with the intent to commit an offence involving the intentional damage, without lawful excuse, of property belonging to another therein, and, at the time you had with you a bat; one charge of destroying property, namely windows and plaster, belonging to the owners of the property, Edgar Brander and Maria Brander; and three charges of common assault relating to Maria Brander, Edgar Brander and their daughter Margareth Brander.

2You also admitted your criminal record. There is one past appearance. At the Robinvale Magistrates' Court on 23 October 2018, you were dealt with in respect to three charges of unlawful assault and without conviction you were fined an aggregate fine of $750.  That related to an incident that occurred when you aged 17.

3I shall now proceed to sentence you on the basis of the summary of the prosecution opening that was read by Mr O'Doherty, the prosecutor, at the plea hearing. 

4The charges are serious and that is reflected in the maximum penalty that is prescribed by law, and that is 25 years' imprisonment in respect to home invasion.  Additionally, home invasion is a Category 2 offence under the Sentencing Act 1991. Section 5(2H) of the Sentencing Act requires that a custodial order be imposed unless the circumstances set out in paragraphs (a), (c), (d) and (e) exist.  Ms Turfrey, on your behalf, confirmed that she was not seeking to rely on any of those sub-sections, therefore a mandatory sentence of imprisonment must be imposed with respect to Charge 1, the home invasion.

5Briefly, the offending involves you acting in company with an unknown co-offender.  You were aged 18 at the time of the offending and you are now 19 years of age. 

6The victims are Maria Brander, her partner Edgar and Margareth Brander, their nine-year-old daughter.  At the time of the offending they were living at  Robinvale. 

7On Monday, 14 January 2019, at approximately 3.30 am, their daughter Margareth was awake in bed.  She heard a noise and woke her mother up, telling her that she heard something in the house.  You and an unknown co‑offender had gained entry through the rear door of the house by smashing the window next to the rear door and then forcibly entering through the door causing damage to the lock. 

8Her mother, Maria, came out of the bedroom through a sliding door and approached the kitchen, where she was confronted by you and another unknown co-offender.  She observed that you were disguised, your faces were covered by cloths and you were wearing black clothes and hoods covering your heads. 

9She asked you and the other male how you got into her house and you and the other male just responded to her:  “Where's the money?”, and repeated this at least two or three times in a little bit of an aggressive tone.  Her daughter Margareth had followed her mother out of the bedroom and was standing beside her during the confrontation.

10You were seen to be holding a long bat in your right hand.  You lifted the bat above your head and smashed a hole in the wall in the hallway of the house.  You again asked Maria, 'Where's the money?'  She pleaded with you not to hurt her and her daughter.  You smashed another hole in the wall and swung the bat, which struck her on her left arm, leaving a red mark and bruising on her forearm.

11Her husband, Edgar, woke up after hearing the male voice demanding money from his wife.  He picked up a stick and went to confront you and the co‑accused.  Upon him entering the room, you both ran out of the back door of the house and, as you were leaving, you smashed a bathroom and bedroom window before fleeing on foot.  Edgar Brander ran out of the front door of the house in an attempt to try and catch you but was unsuccessful. 

12Police were contacted and attended the scene.  The following morning they seized a pair of blue bolt cutters that were located at the side of the house where a rear gate lock had been cut to gain entry into the rear yard.  Those bolt cutters were forensically examined and returned a positive forensic match to you.

13On 5 April 2019 you attended at the Mildura police station and participated in a record of interview during which you made full admissions to the offending, with the exception of the assault on Maria Brander.  You told police that you knew Edgar Brander because you had played basketball with him in the past.  You said you could not fully remember what had happened and that there was another bloke with you.  You asserted that Mr Brander had money at the house that he owed you, approximately $5,000.  You told police that you were on the drug ice and admitted having the bat with you and admitted smashing the windows and walls.  You said you were intending to scare Eddy by breaking some stuff, but you were not intending to hurt anyone.

14Following the interview, you were remanded in custody and have remained in custody since that time and you have been held in an adult prison.  This is your first occasion where you have been held in adult custody. 

15Your matter resolved at committal mention on 20 August 2019 and proceeded as a plea hearing in the Koori Court Division. 

16Uncle Peter Peterson and Mark Bland, elders and respected persons, were present at the sentencing conversation. 

17You were well supported at the plea hearing.  There were your parents and members of your direct family, friends and associates, including team members from Robinvale Storm, as well as members of your church.  Your aunts Thelma and Christina supported you, and your mother, at the sentencing conversation and spoke on your behalf. 

18Talia Hingano, the offending is objectively very serious, involving as it does entry into a private domestic dwelling in the early hours of the morning where there were persons present.  You were disguised, in company and armed with a bat, and you gained entry through using the bolt cutters to cut the gate lock. You gained entry through forcible entry.  Then thereafter there was the assaults that were occasioned in the house and the damage done to the walls and the windows of the house.  Your actions would have petrified the Branders and their daughter.  A further aggravating feature is that you assaulted Maria Brander in the presence of her nine-year-old daughter. 

19The extent of the harm that you caused has been outlined in the victim impact statement that was provided by Maria Brander, declared on 19 August 2019.  She suffered bruising to her arm and also physical pain.  The consequences of your actions have been life-changing for her and her family.  A major consequence was that the family moved because of this incident and that involved great disruption.  She spoke of her enduring fear of something like this happening again and of having difficulty sleeping. 

20The impact of your crime also affected her business because of her hypervigilance and her fears about what may happen whenever strangers come into her business.  She has curtailed her activities and that has impacted greatly upon her social and recreational life.  She is both very angry and very sad.  Tragically, a further negative impact has been that she is now fearful of members of your community, which she says is a horrible feeling.  Your crimes also affected her young daughter, who has difficulty sleeping, and she too is fearful of strangers. 

21Mr Hingano, your actions must be condemned.  People should be able to feel safe and secure in their own homes at night and I consider this to be a serious example of home invasion and there is a real need in sentencing to emphasise deterrence.  I have, however, had regard to all the mitigating factors put on your behalf.  Importantly, you were cooperative with the police, made full admissions and entered a plea of guilty at an early stage in the proceedings. 

22By pleading guilty, you have obviated the need for the victims to come to court to give evidence, which would have likely further traumatised the Brander family.  You have spared the state the cost and inconvenience of a trial.  You have facilitated justice and the sentence will be discounted accordingly. 

23I am also satisfied that the plea of guilty is reflective of genuine remorse.  That is further evidenced in the discussions that you had with the psychologist Daria Sizenko, who prepared the report dated 23 October 2019 under the supervision of Pamela Matthews, consultant forensic psychologist. 

24You told Ms Sizenko that you were sorry for your actions and that you considered that it did not reflect how you would normally be and that you took full responsibility for your actions.  That sentiment was also reflected in what you said during the sentencing conversation.  You fully accepted responsibility for your wrongdoing and acknowledge the harm that was caused. 

25You are a young offender within the meaning of s.3(1) of the Sentencing Act.  You are aged 19 and you were 18 at the time of the offending.  Your youth is an important factor to be considered in sentencing and rehabilitation is an important consideration, notwithstanding the serious nature of the offending.  I have applied the principles set out in the cases of Mills[1] and Azzopardi[2].

[1] (1998) 4 VR 235

[2] [2011] VSCA 372

26You are very fortunate in that you come from a close-knit and very supportive family.  You are the eldest child and you have four younger sisters to whom you are close and very protective.  You identify as a Latje Latje, Aboriginal man and you also have Tongan heritage, of which you are very proud.  You come from a large, very loving and supportive family who, despite their disappointment in you being involved in such serious offending, still maintain their support.

27You left school in 2017, having completed Year 12 to undertake work. During 2017 and 2018 you were productively employed and provided moneys to your parents to assist them to provide for your four younger sisters, helping with them going to youth camp and other activities.  You had a very promising rugby career cut short because of serious injury.  Your grandfather was instrumental in establishing the local rugby team, now known as The Robinvale Storm.

28During the 2017-2018 period you were subjected to some complex traumas. There have been deaths of significant people, including your grandparents, an uncle and a close friend who was killed in a car accident.  You began to use drugs and your escalating drug use led to you being sacked from your job because of your reduced reliability.  You began indulging heavily in drugs and chose a drug-taking lifestyle as opposed to seeking support to deal with your traumas from your extended family and friends. 

29Now with the benefit of hindsight you recognise how dangerous your behaviour was and understand that the consequences of your actions could have been more devastating.  You now have a more positive outlook on life. 

30Your Aunts Thelma and Christine, and Ivan Hingano, all emphasised during the sentencing conversation that ordinarily you are a person who is considered to be one who acts responsibly, who is a respectful and loving person, and they were all very disappointed by your actions. 

31Mr Ivan Hingano is a social and emotional well-being officer with the Robinvale Aboriginal Cooperative. He has offered for you to live with him upon your release and he is willing to provide further support and guidance.  He has visited you in gaol, accompanied by your father, and over time he has observed a noticeable change in your behaviour.  You have detoxified from drugs.  He said that he did try to warn you about the impact of drug-taking and mixing with negative peers before you were arrested, but his warnings were sadly not heeded.  He believes that you are now on the path to turning your life around. 

32Your Aunt Thelma talked in some detail about the complex traumas that you were exposed to as a young boy growing up. Notwithstanding that, she confirmed that you do have a very close-knit family and both of your parents have always been there for you.  Your parents have worked hard to raise their family with strong values and they have provided both you and your sisters with a safe and stable home life. 

33Aunt Thelma acknowledged the significant harm that the drug methamphetamine has been doing to your community.  In the past she organised a forum in Robinvale to discuss the effects of ice on the community.  Had she and your broader family known about your addiction to ice they would have rallied around and supported you. 

34She urged you to put out your hand and accept help from others.  She said that the offending occurred in the context of your parents being away on a family holiday and you had been left behind to fend for yourself.  She was surprised by both the level of your drug addiction and also the nature of this offending.  She said the offending was not consistent with the respectful and loving nephew that she knows.

35The report of Ms Daria Sizenko identifies that you have had periods of depression and anxiety and suicidal ideation in the past and there may be an underlying emotional regulation issue that needs to be further assessed through ongoing psychological treatment or engagement with the community.  You meet the DSM-5 criteria for stimulant use disorder and it is recommended that you would be assisted by further treatment and rehabilitation.  The disorder is currently in early remission as you have been abstinent from use for more than three months but less than 12 months. 

36Mr Falvo, the vice-president of the Robinvale Storm, spoke on your behalf and he confirmed in addition to the written reference that was provided that you are a person who is considered to be a great asset to the club and you are welcome to return to the club in the future.  The club and its members remain supportive.  You are well respected by your fellow teammates.  You have also been a big supporter of the women's team and you were officially named as their assistant coach.  In the past you made positive contributions to the club.

37Soana Fanua, the manager of Orchard Tech, has provided a letter confirming that he is the manager of the farm and he indicates that you are a reliable and hardworking young man.  You are open to return to the farm to work in the future. 

38Having heard all the evidence at the plea hearing, I accept that at the time of the offending you had spiralled into heavy drug use, in particular methylamphetamine, and as a consequence your actions are out of character. 

39Both Uncle Peter and Mark Bland emphasised to you how wrong it was to behave in this manner and stressed to you that such violent behaviour is not a part of your culture.  Uncle Peter acknowledged, however, that you are only young and the consequences of this offending should be a real wake-up call for you.  He said that you still have real potential for a positive life ahead.  He emphasised the need for you to make better choices so that you may become a strong Aboriginal man.

40Both he and Mark Bland emphasised the need for you to seek help, to speak to people about what is troubling you and to not bottle up your problems.  They emphasised that you must stop taking drugs and start making positive choices.  You accepted their strong condemnation of your behaviour and said that you wanted to change.  The message for you to take away from the sentencing conversation is that asking for help is not a sign of weakness but a sign of real strength.

41I have taken into account in your favour the fact that you voluntarily consented to the matter being dealt with in the Koori Court Division and that you genuinely participated in the sentencing conversation. 

42You have now been on remand for a little over eight months (249 days) in an adult prison.  There has been some benefit to you insofar as you have been drug-free for that period and you have been productive, undertaking work in the prison as a billet and a barber. 

43You are fortunate in that you do have a good and solid work history and that there is an opportunity for you to work in the future as a farmhand if that is the course you choose.  You also have substantially completed a building and construction course.  You have indicated a willingness and interest in completing that course. 

44You are a person who enjoys good physical health. 

45I consider that you now express appropriate attitudes and that is confirmed by the observed changes in your behaviour since the offending, your abstinence from drugs whilst in the controlled confines of the prison and your expressed commitment to remain off drugs. 

46You do have insight into the reasons for your offending and the seriousness and effect of the offending. 

47You have made the huge leap to admit that you do need help to address your grief issues and also your addiction to methylamphetamines.  You now have the confidence to confide in both your parents and Ivan Hingano about your issues and the need to address them in the future.

48Overall, I assess your prospects for rehabilitation to be excellent. It is, however, imperative, that a young man in your position is properly supported upon his eventual release with counselling and rehabilitation programs designed to prevent drug relapse and to enhance your rehabilitation prospects.  

49Ms Turfrey requested that the court give consideration to a combined sentence of imprisonment and Community Correction Order through the  court imposing a period of imprisonment comprising time served for the home invasion charge and then, upon completion of that sentence, the remaining charges could be dealt with by way of a Community Correction Order focussed solely on rehabilitation.  She submitted that the rehabilitation aspects of the order could be addressed by supervision, treatment and assessment for drugs and mental health, anger management and other offending behaviour programs.  Alternatively, she sought an aggregate sentence of imprisonment the equivalent to, at a minimum, time served. 

50Mr O'Doherty, on behalf of the prosecution, submitted that a gaol term with a non-parole period to be fixed is the appropriate disposition having regard to the serious nature of the offending.

51Your matter was adjourned until Tuesday, 10 December 2019, to enable assessments to be undertaken in the alternative for a Community Correction Order or suitability for a Youth Justice Centre assessment.  The purpose of obtaining the reports was so that the court could give consideration to the most appropriate disposition. 

52You have been assessed as suitable for a Community Correction Order and also you have been assessed as being suitable for Youth Justice Centre Order pursuant to s.32 of the Sentencing Act 1991.

53Mr Lowes in his pre-sentence report, confirms that taking into consideration the Youth Justice Centre Suitability assessment tool, you have higher indicators for prospects of rehabilitation than contra-indicators.  You accept responsibility for your offending, you convey general awareness regarding the impact of your offending on the victim, your family and community and you do not have any prior youth justice involvement.  You have good prospects for release employment and have prosocial peers in the community, strong family involvement and you can identify specific family members that would support you upon your release. 

54While your behaviour and progress in adult remand shows that you would not be unduly influenced by remaining in adult custody, your prospects of rehabilitation strongly suggest that you would be suitable for a Youth Justice Centre Order if deemed appropriate by the court.

55In formulating a just sentence, I have had regard to the gravity of the offending.  I have viewed the home invasion charge as representing a serious example of that type of offence given that you were disguised, in company, armed with a bat and entered the house that was occupied in the early hours of the morning, and that then you displayed violent and aggressive behaviours.  Your moral culpability is high in respect to that charge and the court must condemn your behaviour.

56I agree with Ms Turfrey's submissions that the other two charges of destroying property and the three charges of common assault are all at the lower end of the scale of seriousness for those types of offences.

57Ultimately, I have formed the view that the offending, particularly the home invasion, is deserving of stern punishment and that deterrence, denunciation and protection of community must be emphasised, although I do accept that you are now more mature and responsible and that you show real insight such that the need for specific deterrence is moderated to an extent.  I recognise the need for the sentencing disposition to reflect an emphasis on rehabilitation.

58Ultimately I have come to the conclusion that there is a need for you to be further confined. However, having considered all the relevant factors that I have emphasised, and forming a conclusion that you are a young offender who has not demonstrated an entrenched pattern of offending in the past, who has significant supports in the community and has real prospects for rehabilitation, notwithstanding you have coped in the adult prison system, I do still hold concerns that you are the subject of undue influence such that I intend to make orders directing that you serve the remaining sentence in the youth justice system. 

59Thereafter it will be a matter for the Youth Parole Board to make an order in respect to your conditional release.  Pursuant to the Youth Justice Centre Order, appropriate supports can be put in place to further enhance your rehabilitation prospects. 

60I will now announce the formal orders, so I ask that you please stand, Mr Hingano.

61In relation to Charge 1, home invasion (damage) person present, Charge 2, destroying property, and Charges 3, 4 and 5, common assault, you will be convicted and ordered to be detained pursuant to a Youth Justice Centre Order for a period of two years and six months.

62Pursuant to s.35 of the Sentencing Act 1991 I direct that 249 days be reckoned as a period of detention already served under the sentence imposed this day.

63I make the disposal order sought and I make the compensation order sought in the sum of $500 in favour of Maria and Edgar Brander. 

64Finally, I make the s.6AAA declaration:  but for your plea of guilty, I would have imposed a term of three years and six months detention pursuant to a youth justice centre order.  That concludes my sentencing remarks.

65COUNSEL:  As Your Honour pleases.

66HER HONOUR:  Thank you.  All right, so Mr Hingano can be taken back into custody.  I assume that arrangements will be put in place today for Youth Justice to attend and take him to Malmsbury.

67CORRECTIONS OFFICER:  Yes, Your Honour.

68HER HONOUR:  All right, thank you.  We can adjourn.

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