Director of Public Prosecutions v Ikihega

[2023] VCC 534

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00538

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISAAC IKIHEGA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2022
DATE OF SENTENCE:	5 July 2022
CASE MAY BE CITED AS:	DPP v Ikihega
MEDIUM NEUTRAL CITATION:	[2022] VCC 534

REASONS FOR SENTENCE

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Subject: Aggravated burglary and make a threat to kill

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Wareham	OPP
For the Accused	Mr G. Nikolovski	Theo Magazis & Associates

HER HONOUR: 

1Isaac Edward Ikihega, you have pleaded guilty to aggravated burglary Charge 1, and make a threat to kill Charge 2.  The maximum penalty for these offences is 25 years and 10 years respectively.  You have also agreed to have dealt with by me and pleaded guilty to the summary offence of unlawful assault.

2A number of weeks ago I conducted a sentence indication hearing, and your plea was entered as a consequence of that indication, that I would not require you to serve an immediate term of imprisonment.

3The parties filed documents in those proceedings including submissions which were relied upon in the plea.  I take that material into account.

4The circumstances of your offending are set out in the prosecution summary for sentence indication hearing dated 8 June 2022 (Exhibit A) and can be summarised as follows.

5At about 9.30 pm on 31 December 2020, you went to the Metung Hotel, where your father worked as a chef.  You were enjoying New Year's festivities at the pub on the balcony with your father and other workers.  Other staff members were celebrating inside including Kelsie Beale, your ex-girlfriend and Patrick Garbutt.  You texted Ms Beale saying Happy New Year, but she did not reply.

6Soon after midnight you went inside.  You collected an empty glass and proceeded to walk towards Ms Beale.  You threw the glass to the right, which hit the hotel manager, Liam Flint, to the back of his head, causing the glass to break (Summary offence, unlawful assault).

7You then went towards the front door, picked up another glass and threw it at the TV, smashing the screen. 

8You pushed past the security guard and went outside.  He locked the door.  You tried to re-enter the hotel; however the security denied you entry, stating you were intoxicated and aggressive.  You continued to yell at him outside.

9Soon after, you went back inside the hotel through the kitchen entrance.  You approached the security guard and were yelling and pointing in his face, until another security guard assisted.  You were again ushered out of the hotel by both of them.

10Mr Garbutt was also outside the hotel, though he went back in, as he was getting a lift home from another staff member.  He went into the hotel yard via the bottom gate, and you followed him in.  You continuously asked Mr Garbutt if he had a problem with you and if you wanted to fight. 

11Your father blocked you from getting to Mr Garbutt.  You accused Mr Garbutt of being a dog and threatened to bottle him.  Mr Garbutt was let in the back door of the hotel, but you kept on yelling at him through the door. 

12Mr Garbutt along with two other staff members, Henrietta Patterson and Ella Anderson, went in the cool room to keep safe.  You again entered the hotel through the kitchen door (aggravated burglary).

13You grabbed a knife from a magnetic rack and continued to go from the kitchen into the bistro area.  Numerous people were present including Sarah Haupt, Susan Haupt, Liam Clint, Jarrod Ikihega and Andrea Griffiths.

14You repeatedly yelled 'Where is the cunt? I'm gonna kill him.  Who rang the dogs?'  That is Charge 3, make a threat to kill.

15One of the staff members approached you and was able to take the knife away from you.  You were arrested and made a no comment interview.

16I received a victim impact statement from Sarah Haupt, one of the staff members at the hotel.  You conduct has triggered childhood memories of an incident involving being threatened with a knife and has impacted her work.  It has been necessary for her to seek medical assistance as she suffers from depression, anxiety and panic attacks.  She feels very uncomfortable in social situations and has not been able to return to work.  Her interaction with friends and family have changed dramatically.

17You are currently aged 24 and at the time of the offending were 23.  You were born in New Zealand and moved to Australia in September 04.  You are not an Australian citizen nor a permanent resident.  Your parents are divorced and you live with your father in Metung.  Your mother returned to New Zealand late last year.

18After leaving school at the end of Year 12 you worked as a labourer for a short time and then were employed as a furniture removalist for about two years.  You then worked as a labourer in the concrete industry.

19After a short period of unemployment in February 2022, you began working at Sunset Waters as a cook.  Sunset Waters is an assisted living facility for adults who need help with caring for their basic needs.  About two months later you transferred to a position as a disability support worker and in this new role you work five to six days a week.

20You have also enrolled in a Certificate II in performing allied health tasks and supporting people with disability at the Hammond Institute in Dandenong.

21You do have a history of mental health difficulties though you are currently medicated or seeking professional assistance. 

22You have had a significant difficulty with alcohol.  You started drinking at the age of about 15, which continued through the years to the offending date.  You have acknowledged your drinking problem was the key factor in this offending; though that may explain it, it does not provide an excuse.

23I received a reference from Tania Clifford, Manager Sunset Waters Residential Service, your employer, and from a family friend, Greg Hume.  You are described as trustworthy, hardworking, and helpful.  I was informed that both of them were aware of the details of this offending and that this kind of offending appears to be out of character for you.

24I take into account your plea of guilty.  Your plea has a high utilitarian value, particularly given the impact Covid has had on the justice system in this State.  None of the witnesses were required to give evidence and relive the traumatic experience related to events this night. 

25Your plea is also indicative of remorse and consistent with the material filed on your behalf from your employer and family friend.  I also understand that you consented to an IVO being taken out after this incident, and that was not breached, and it has now expired.

26I was informed you are ashamed of your behaviour and want to make amends by staying away from alcohol and from trouble. 

27Whilst not inordinate, there has been some delay.  The offending occurred in the early hours of New Year's Day 2021.  You come before this Court as a young man with no prior convictions or interactions with the criminal justice system.  I was informed that having this matter hanging over your head for almost a year and a half has been a sobering experience for you.  I accept given your status as a non-citizen, you have been burdened and concerned about the prospect that you may be deported. 

28I accept that you have good rehabilitation prospects, given your employment and studies, your family and friend's support, that you have no prior convictions, that you are a relatively young age, your plea of guilty and remorse, and also the Corrections assessment of you as being a low risk of offending.

29This offending was serious and people were very frightened by your conduct, particularly in respect of Charge 1.  The community does not tolerate this kind of random violence by an individual, fuelled with alcohol, with a weapon and in a public place.  General deterrence, just punishment and denunciation have a significant role to play.

30Your counsel submitted that given the matters put on your behalf, that I should impose a community correction order for your offending.  I had you assessed by Corrections as to your suitability. 

31The prosecution conceded that a community correction order was within range given your circumstances, this offending and other sentencing principles.

32I am prepared to place you on a community correction order for a period of 15 months.  There will be a condition that you are required to undergo 50 hours of community work.  There are two other conditions: one relating to alcohol and drug condition; and one relating to event specific course condition, both as directed by Corrections.  In the Correction's report it is indicated that they did not think that it was necessary for you to be supervised by them, given that they have assessed you as a low-risk assessment. 

33You need to understand that if you breach the community correction order that I have just imposed, that the matter will come back before me, and you will be re-sentenced for these matters and you can expect to receive a more severe sentence.  Do you understand that?

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  Thank you.  Finally, your counsel submitted that the CCO I should impose should be without conviction.  I am prepared to accede to that request.  It would appear this offending has made you recognise the impact of alcohol and you have managed to turn things around to a certain extent, engaging in both employment and related studies.

36It is important that you have no prior convictions, have remained out of trouble since this incident, and you are still a relatively young offender.  I am prepared to give you a chance, having a clean slate effectively, even though the nature of this offending was serious.

37Is there any other matters?

38MR WAREHAM:  No, Your Honour.

39HER HONOUR:  No?

40MR NIKOLOVSKI:  No, Your Honour.

41HER HONOUR:  All right, thank you.

42MR WAREHAM:  Thank you.

43MR NIKOLOVSKI:  Your Honour.

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