Director of Public Prosecutions v Jal
[2021] VCC 488
•26 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01607
Indictment L11751327
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUAK JAL |
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JUDGE: | His Honour Judge Tinney |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 March 2021 |
DATE OF SENTENCE: | 26 April 2021 |
CASE MAY BE CITED AS: | DPP v Jal |
MEDIUM NEUTRAL CITATION: | [2021] VCC 488 |
REASONS FOR SENTENCE
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Subject: Home invasion, criminal damage, robbery and attempted robbery, theft (x3), burglary, possess drug of dependence. Four summary matters: offend on bail, breach conduct condition of bail, unlicensed driving and possess property suspected of being proceeds of crime. Lengthy and relevant criminal history. Eighteen years of age. Early plea. Intellectual disability. Category 2 offence. Category B serious youth offence. Unsuitable for youth justice detention order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Barry (For Plea) | Office of Public Prosecutions |
| Mr C. McConaghy (For Sentence) | ||
For the Accused | Mr T. Antos | Bowler, Man & Co. |
HIS HONOUR:
1Luak Jal, you have pleaded guilty to nine charges on the indictment, being one charge each of home invasion, criminal damage, robbery, burglary and attempted robbery, three charges of theft and one charge of possession of a drug of dependence. You have also pleaded guilty to four summary matters, namely committing an indictable offence on bail, breaching conduct conditions of bail, unlicensed driving and possess property suspected of being the proceeds of crime.
2The maximum penalties are correctly set out in the Crown opening. I will apply the lower maximum penalty applicable to the possession of the cannabis as specified in the relevant provisions of the Drugs Poisons and Controlled Substances Act 1958, satisfied as I am that your possession is not in any way related to trafficking in that drug.
3You are 18 years of age and regrettably you have a quite disturbing criminal history before the Children's Court. As a result of the past history as well as the nature of one of the offences you have pleaded guilty to on this indictment, you fall into a special sentencing category where my sentencing discretion is very much fettered. I will come back to this later in my reasons.
4The prosecutor Mr Barry opened this matter to me in accordance with a written opening dated 9 March 2021, which was marked as Exhibit A on the plea. Your counsel at the time, Mr Antos, told me, and this was back on 11 March when the plea took place, that this was an agreed opening and I will sentence in accordance with it. I see little need to descend to the full detail of the offending. That agreed statement does that.
5This was serious offending. Home invasion is an inherently serious offence. This was an entry in broad daylight. You were in company with two others and it had the hallmarks of some level of pre-planning: gloves, face covering and the use of a stolen car driven by you. You selected premises, attempted to disable the CCTV camera and then kicked your way into residential premises, you and two other males. The parents were away from home. The 18-year-old son and his 14-year-old sister were alone upstairs and the summary described the conduct of the intruders. You or those in your group made demands, monstered them and took property, so robbery of the 14-year-old girl's phone and attempted robbery of her brother's phone.
6You were taking a lead role. You were the driver. You were the person who kicked in the door. The robbery of the young girl was accompanied by one of your number grabbing her by the collar. There was a brazen search through the house. The brother was shoved into a bedroom. Demands were made for pass codes to various devices. The three of you took a large enough amount of property and fled in the stolen Subaru. A short time later in an adjacent suburb you then attended at a nearby house and backed the stolen Subaru into the drive. You and your offsiders committed a burglary and then stole a number of items including in that case the family pet, a four-year-old precious Cavoodle named Harry.
7The summary describes the circumstances of your arrest a few days later on 22 July. You and two others were seen changing a wheel on the stolen car. An off-duty member noticed and rang it in. Police attended and you attempted to flee, but you were captured. Cannabis was found in your satchel as well as the mask matching the mask used in the 18 July home invasion. You were wearing identical clothes.
8You were not honest in the police interview, convincingly and persistently expressing outrage that you were being charged with offences you claimed you did not commit. You lied about virtually every aspect of these transactions, but of course, that is not a matter in any way in aggravation. Had you been cooperative and made admissions, that would have been a matter raised in mitigation on your behalf. Simply, that is not what happened here.
9The case was an overwhelming one with footage from a chemist shop the day after the alleged offending and DNA in relation to the gloves in the car, not to mention your being found near the stolen car and your flight from the scene and possession of matching clothes. You were unlicensed, were found in possession of $192 cash and at the time were on bail with a condition that you not drive and that you not commit further offences, hence the various summary offences that I have described.
10You have been in custody since your arrest on 22 July. All but four days is to be declared as pre‑sentence detention. I should have asked, I make that a period of 275 days not counting today.
11MR McCONAGHY: Two hundred and seventy-eight days is the agreed number, Your Honour.
12MR ANTOS: Yes, Your Honour.
13HIS HONOUR: That's not counting today?
14MR McCONAGHY: Not counting today, Your Honour. Your Honour, just on that, the 278 days is the total amount of days, but there needs to be four days, I should say, taken from that in relation to the - - -
15HIS HONOUR: Yes. Well, see, I look at these matters pretty carefully, so that's why I'm doing the sums. Because I'd gone through it and deducted the four, but I'll come back. What do you say it is then?
16MR McCONAGHY: Two hundred and seventy-four days.
17HIS HONOUR: Well, I got the 275, so let's see where we go from there. I was told it was 230 on 12 March, not counting the 12th, and that makes it 275 by my calculations. So it's not counting today, so that's what I'm going to declare
and - - -18MR McCONAGHY: Your Honour.
19HIS HONOUR: Are you happy with that, Mr Antos, or not?
20MR ANTOS: Yes, Your Honour.
21HIS HONOUR: All right. So you have been in custody since your arrest on 22 July. All but four days is to be declared as PSD, so there will be a period of 275 days to be declared by way of pre‑sentence detention for this matter.
22The agreed opening sets out the procedural history. So much then for my brief summary of the summary.
23I will sentence on the basis of the more complete agreed factual statement. There were also some photographs in the materials which I have regard to. They are also referred to in the summary.
24I should say there was mention of a couple of 'co-accused', but this is not a case where any argument as to parity was deployed. It was specifically disavowed by your counsel and for good reason. There are differing charges altogether and differing backgrounds. Indeed one of the people ultimately had the charges withdrawn.
Victim Impact
25I would hardly need a victim impact statement to understand the fear occasioned by your offending. It was a frightening crime to invade this home and move around within it in the way that you did. The two police statements speak of the impact. In fact your young female victim was crying in the aftermath. Who could blame her? This was a frightening event. The other burglary, though in a very different class, still had impact. You invaded their domain and took their belongings including the family pet. Happily the family pet was recovered pretty swiftly. Happily those occupants were not present.
26When in the police interview you were shown photos of the first crime scene and the state of disarray and the police member related to you the account of the young victims, you said words to the effect that it was terrible and wrong for someone to have done that. Of course, you denied that it was you.
27Well, Michael Taing speaks in his impact statement of the impacts of the home invasion and related offending. It has made him more cautious. There is fear that it might happen again. He has become hypervigilant. He says correctly that home is supposed to be the safest and most comfortable place. He says that your crimes have caused him to reassess that theory. This sort of crime, home invasion and perhaps to a lesser extent any residential burglary, well, they are renowned for leading to a sense of loss of privacy and a sense of invasion of a personal space. I take into account the impact of your crimes.
In Mitigation
28Mr Antos appeared for you and conducted the plea on your behalf. He had prepared written plea submissions dated 8 March and it is not my intention to mention everything contained within that document. I have taken into account the matters he raised.
29He relied upon a report from a clinical neuropsychologist Mr Staios as well as a very lengthy report from a psychologist Alice Lee. He placed before me material as to your background. Those reports had much detail in that regard.
30Your counsel made submissions as to the relevance of your mild intellectual disability. He conceded the seriousness of the offending, especially the home invasion. He conceded the relevance of your past history before the courts, which included a number of failures on Children's Court orders and a number of terms of detention that had previously been imposed. He accepted that the Court could only be quite guarded here as to your future prospects of rehabilitation.
31In mitigation your counsel relied chiefly upon the following:
· Your early guilty plea and the presence of some remorse;
· Your youth;
· The application of some of the principles from the case of Verdins[1].
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 CrimR 581
32His written submission made no mention of any increased prison burden arising from the response to the COVID-19 global pandemic. I raised that with him lest that matter be forgotten.
33The home invasion is a category 2 offence and, absent proof of one of the matters set out in s.5(2H) of the Sentencing Act 1991, a court must impose a custodial disposition as contained in part 2 of division 3, and not in combination with a community corrections order. That by the way could ordinarily include detention in a youth justice facility, as that disposition falls within that part of division 3. However, the further problem for you is the second fetter on my discretion arising from the fact that the home invasion is a Category B serious youth offence and you have in the past been found guilty of a Category A serious youth offence, being aggravated carjacking. If satisfied that confinement is required, plainly it is here, I could then only send you to a youth justice facility if satisfied of the existence of exceptional circumstances. Your counsel was arguing that these various exceptions were established. There were some odd submissions in that he was suggesting at one point that a community corrections order was open here or youth detention. However, so much of the argument seemed to be directed at establishing the availability of a youth justice detention order in your case. That is, demonstrating exceptional circumstances such that I could even entertain such an outcome here. I do not really believe the stand-alone community corrections order was seriously pressed. If it was, it should not have been and that sort of disposition would be entirely inadequate. I had called for a transcript and, upon reading it, it confirms that the major thrust of your counsel's submissions was to avoid adult imprisonment by having you detained in a youth justice facility instead. Indeed Mr Antos has confirmed that today.
34Your counsel started out by arguing that the statutory exception set out in s.5(2H)(c)(i) was made out, thereby removing the impediment to a non‑custodial outcome. He withdrew that submission when he reflected on the great difficulty of demonstrating not just a causal link but one which substantially and materially reduced your culpability. He conceded that did not arise here.
35Instead he moved on to s.5(2H)(e), that is the existence of substantial and compelling reasons which are both exceptional and rare. Today, however, in reality he concedes the inevitability of at least a term of detention in a youth justice facility. That is what he was hoping to achieve, but he recognises the great difficulties posed by the youth assessment report.
Prosecution
36Mr Barry, who appeared on behalf of the Director of Public Prosecutions, challenged the submissions made by your counsel that you had brought yourself within any of the statutory exceptions in s.5(2H)(c)(i) or (e), or that you had established exceptional circumstances under s.32(2D) of the Sentencing Act. The matters relied upon, they argued, were hardly exceptional.
37Mr Barry had prepared detailed written submissions and they and his oral submissions addressed factors such as the relevant principles of sentencing as well as the seriousness of the home invasion offence.
38The prosecution challenged the application in this case of any of the principles from the case of Verdins. Though not suggesting that your disability was irrelevant, it had to be taken into account as a matter personal to you, they argued that it was purely speculative to draw any realistic connection between this offending and your intellectual disability.
39The Crown argued that the only appropriate outcome here was an immediate prison term with a non-parole period.
40On the day of the plea I called for a report dealing with your suitability for a youth justice detention order. I did so with a concern that it may raise in your mind the likelihood of such an end destination. I raised that issue with your counsel on the day of the plea. Your counsel had encouraged me to call for the report. As I looked at the material on the day of the plea, I did not then believe that there were exceptional circumstances to avoid the operation of s.32(2D) of the Sentencing Act. Nor did I then believe that you fell within either exception in s.5(2H)(c)(i) or (e). Ultimately those provisional views have not changed. In fact, as we now know, you are not even judged to be suitable for a youth justice centre order as the report of Ms Shah makes clear. As I have said a moment ago, in reality your counsel has abandoned any endeavours to have you placed on a combination-type order.
41On the day of the plea I took the view that when dealing with an 18-year-old offender with a history such as yours, that I really should explore every option, and so I called for that report. It seemed likely that those in youth justice would be able to give me a great deal of detail about you, about your conduct in youth justice and for that matter, your conduct whilst in prison. Even if I did not judge youth justice to be open, it seemed that that sort of detail would at least place me in a superior position to exercise my sentencing discretion. That is why I called for the report. That report is now marked as Exhibit D and I will discuss aspects of it later in these reasons. It has assisted me.
Background
42I am not going to go chapter and verse into your family or personal background. As I said a moment ago, there is a lot of detail as to your background in the written materials, including the reports and written submissions. Also for that matter, in the youth justice assessment report that I have just mentioned.
43I have no reason to doubt the family background placed before me and I will act on it. There is the not unusual story of disrupted schooling and home life, long‑term drug use and a poor level of cognitive functioning. Your counsel explicitly disavowed any reliance on the Bugmy[2] line of cases. It is though clear to me that it has not been an easy background and I take it into account as far as I am able to, in a general way. These things all do leave a mark.
[2]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
44You are turning 19 in a few months. You are the second oldest of nine children. Your parents left their war-torn homeland seeking a better life. You were born in Australia. You suffered an injury to your left arm at birth which has plagued you. Your parents separated when you were young. Your father left the home and your mother did her best. She repartnered when you were 12 and her new partner was very strict. Schooling was disrupted. You were disruptive. You were picked on and, as we know, you had a mild intellectual disability and that no doubt made school very difficult for you. At one stage you went to a special school. You were excluded from the family home at one point with an intervention order and sent out to Western Australia to live with your father but moved back here. You were placed into residential care and absconded back home. There is much more detail in the lengthy report from Alice Lee, which runs to some 19 pages. There were various protective concerns at some stages, with Department of Health and Human Services' involvement. Drugs have been a problem. Offending has been problematic and has escalated.
45I see no point conducting a line by line survey of your criminal history. Though running to many pages, that is a bit deceptive as there are many duplications with resentencing exercises following the breach of various court orders. One appearance, for instance, the one on 19 January 2018, stretches for close to 17 pages, mopping up as it does, various fresh offences and breach dispositions. However, there have been plenty of appearances and plenty of effort spent by the Children's Court in trying to avoid your confinement. You have breached most orders you have been placed on. The youth justice assessment report spells out your lack of response to court orders. You have been detained in youth justice facilities on a number of occasions, sometimes for very serious offences including carjacking and aggravated carjacking. It has not put a brake on your offending. In fact you even offended whilst in custody, which led to the most recent detention order in January 2020. You were paroled in March 2020 and youth parole expired in May 2020. The offences I am dealing with occurred in July of that same year. You were on a youth attendance order and bail at the time you have committed these various offences that I must deal with.
46I make plain to you that you do not fall to be sentenced a second time for any of those past matters. You have been sentenced in the past and you have served those sentences. None of that past criminal history aggravates this offending. But it has the ramifications set out in s.32(2D) of the Sentencing Act. Quite aside from that, your history before the Children's Court is undoubtedly relevant to my task and that is because I have to make judgments about your prospects of rehabilitation and your risk of reoffence. I have to consider the extent of the need to deter you from offending in the future and the extent of the need to protect the community from you. General deterrence has had no role at all in the past Children's Court sentences, as the Children' Court is prohibited from even having regard to that principle. You now fall to be sentenced as an adult and that purpose come into sharp focus now.
47You have had an interest in cars and mechanics. You have never really had a paid job of any description. You have used and abused drugs and alcohol from an alarmingly young age. You have what is described as a mild intellectual disability.
48You have been in custody now for 275 days, in relation to this matter. That has been in an adult prison, your first real taste of such a place. As is clear from the youth justice assessment report, you were initially non-compliant, but your behaviour has improved. You keep to yourself and are the youngest in your unit. You are not finding life easy in adult prison.
49Let me turn to the various matters that have been raised.
Guilty plea
50You pleaded guilty at what I will treat as the earliest opportunity. You have facilitated the course of justice. You have taken early responsibility for your crimes. The community has been saved the time, the cost and the effort associated with a committal in the lower court or a trial up in this court. Witnesses have been spared the experience of giving evidence. That is of real benefit here. It was bad enough to have subjected the two young people to the home invasion. At least they and others have been spared the experience of reliving an event in the witness box. There is a utilitarian benefit in pleading guilty. I take this into account. I take into account your early guilty plea in the ways urged upon me by your counsel. This case resolved amidst the disruption of the operation of the courts arising from the COVID-19 virus and is in my view worthy of extra recognition.
Remorse
51Your counsel argues that you have some remorse. A guilty plea is usually, though not always, indicative of at least some remorse. If all I had to go on was your police interview, it would be nigh on impossible to find any remorse here. However, that was a long time ago and you had a bit of bluster and bluff in you closer to the event when spoken to by the police. You were only 18. You still are 18 and none too mature. You have had many days to think of your conduct and have pleaded guilty at an early stage. There is still some defensiveness about your conduct as spelt out in the report of Ms Shah. I am though, prepared to find the presence of some remorse in this case and I take that into account in your favour.
Verdins
52I move then to pronounce my conclusions as to the application of the Verdins principles in this case. Your counsel set out to rely on all of the limbs of that case but really withdrew any reliance on limbs 5 and 6. He described the limb 5 and 6 arguments as being a ‘long bow’. He is right. They were.
53I see no utility in these reasons in descending into the full detail of the two reports relied upon to enliven these principles. I could, but you are pinned down there over the video link and you will have very little sense of what I am talking about. My reasons will be quite long enough as is. I have read all the materials again. I take them into account. I must say, I find the lengthier report of Ms Lee of far more value than Mr Staios's report. Both reports comment on other assessments carried out over the course of your life. I also have regard to the court-ordered youth justice assessment report.
54You have a low level of functioning. You always have. You have many deficits, including in adaptive functioning, and some of these things, well, they may have a role to play in being easily led or falling subject to peer influence.
55You have what is described as a mild intellectual disability. Well, when put in that way that does not sound too bad. Someone with a mild cold is not really too unwell. That adjective 'mild' has to be seen for what it is in this sort of report. It has a very different meaning. The use of the word 'mild' is something of a term of art when applied in this way by a psychologist or a neuropsychologist to describe an intellectual disability. There is nothing mild or minor about the impacts that are described by either of those authors. They are significant deficits as disclosed in the very lengthy report before me.
56However, there has to be a realistic connection between the condition and the offending to attract the first limb of the case I have mentioned. The Crown argue that there is none and argue that it would involve pure speculation to conclude that your intellectual disability had any real role to play in this offending. They argue that I must have regard to the actual crime and what you actually did, that this was perfectly rational and reasoned behaviour. Yes, it was committed by a man who undoubtedly has an intellectual disability, but was that connected to that decision? So there are a range of factors at play here. I see no basis to greatly reduce your culpability on a Verdins basis. Nor is there any basis to greatly reduce the weight to be given to general or specific deterrence. As I have said already, the fifth and sixth limbs are not supported by the materials placed before me at all and are specifically disavowed by Mr Antos. I am not prepared to speculate that someone with a mild intellectual disability would likely experience an increased burden. Maybe he will, maybe he will not, but Mr Staios does not even address that factor and I am not going to guess. He does not even express a view.
57Ultimately I am prepared to accept that four of the principles from the case of Verdins can be given some modest weight in this case. As I have said, I see no basis on the materials to find the fifth and sixth limbs are enlivened. There is no evidence on that topic at all. But I believe there is a basis for the application of the first four limbs. The question then is what weight these matters should be given. That will always depend on the nature and the effect of the condition. I am prepared to accept that there can be some modest reduction in your moral culpability. You are functioning at a low level, one way below your actual chronological age. That cannot be forgotten. These deficits are not conducive to clarity of thought or considered and properly thought-out behaviour. They no doubt can lead on to impulsiveness. By the same token young people can be more impulsive. So can people either young or old, labouring under the effects of drugs or alcohol abuse. So what role did these various conditions spoken of in the reports actually have in the commission of these offences? The offences do not strike me as being too impulsive. You do not strike me as being some blind follower. You were playing a lead role. You knew that what you did was quite wrong. The evidence on that score is very clear, whatever Mr Staios may say about the limited understandings that you have of social rules. You quite adequately described in the interview how appalling the alleged conduct was. You just said you had not done it.
58It was you who tried to disable the camera at the scene of the home invasion. You exited the car first. You kicked the door down. You entered first. Mr Staios speaks of the combination of factors coming in to play. When intoxicated your intellectual abilities are highly likely to be further reduced with impact upon your cognitive skills. Well, alcohol and drugs do that to anyone really, but in your case they combine with other aspects of your make-up to reduce your capacities for clear thought. When you are intoxicated your abilities are further compromised. That may be so, but I am not satisfied that your condition in any way deprives you of the ability to understand what you are doing. You knew, for instance, that burglary and home invasion is quite wrong and seriously illegal. I have no doubt about that at all. You are not acting under any delusion or truly clouded judgment in that respect. I am not satisfied on the balance of probabilities that your intellectual disability or the other matters spoken of by the experts was greatly contributing to the decision to commit the home invasion or to burgle a house or to drive a stolen car or commit the thefts. These were perfectly rational crimes, the sorts of crimes committed by many people who have no hint of any intellectual disability at all. You knew that it involved serious criminal behaviour. Of that I have no doubt at all.
59You were also doing these acts whilst disinhibited by drugs. The realistic connection required to even attract the first limb of Verdins is quite problematic here given that the expert describes a range of contributing factors, some which would tend to an acceptance of the first limb in Verdins and others such as drug use which plainly would not. Drug use is not mitigatory. Disordered thought brought about by drug use is not mitigatory. It really is impossible to disentangle the contributing factors and reach any view as to a dominant contributing factor here.
60Drug use impacts upon a person's decision-making. Well, what I have to do is have regard to the rational aspects of the offending. You considered what you were doing. That is obvious. You were wearing a disguise and gloves. You were disabling the camera. You were selecting premises, entering them with a view to steal. As I said, I do not believe there is any basis to allow for any substantial or significant reduction in your moral culpability here, but I will still give the first limb some weight. The second limb is not to be ignored, as your intellectual disability undoubtedly touches upon the appropriate disposition. However, given your history before the courts and the seriousness of this offending, the options have run out for you and for the court.
61I do not believe that there should be any significant Verdins reduction in the weight to be given to general deterrence. Again I have to look at the condition and its actual impact. I am prepared to moderate that purpose to a degree, but it is far from eliminated. The fact is your youth alone drives some moderation in these various areas.
62As to specific deterrence, it is surely achievable. You can and you must be deterred. You have been given past opportunities by the courts, opportunities which you have not taken. I will give some modest reduction to specific deterrence. There is no material before me raising any aspect of increased burden or likely deterioration in custody, so the fifth and sixth limbs do not arise on the materials before me, as is conceded by your counsel.
Youth
63I turn now to your youth. You are still a young man. You are only 18, turning 19 in a few months. You are of course a very long way removed from being a youthful first offender.
64Your youth is still of importance for all the reasons set out in cases such as Mills[3] and Azzopardi[4]. Rehabilitation is still an important consideration here, though by no means the only consideration. The courts have long recognised that youthful offenders are less mature than adult offenders and generally less culpable.
[3]R v Mills [1998] 4 VR 235
[4]Azzopardi v R [2011] VSCA 372
65Now of course you are an adult but a young one. Youthful offenders are more likely to not actually really think through and consider the consequences of their actions and, importantly, the law recognises that they are generally speaking, more amenable to change for the better. They can be rehabilitated and it should not be forgotten that rehabilitation serves to actually protect the community. It is also recognised in the case law that prison can damage those prospects of rehabilitation, as it can be and often is corruptive of youthful offenders. Plainly, if it can be avoided, it must be.
66Accordingly, rehabilitation is important and less weight is ordinarily to be devoted to punishment, deterrence and community protection. That is the position irrespective of your intellectual disability.
67Quite aside from your young age chronologically, there is some material in the expert reports that deals with aspects of immaturity in your make-up.
68Now, as your counsel recognises in his written submissions, these principles relating to the importance of youth do not apply automatically in every case in the same way. It is always important to consider the nature of the offences and the offender, and the extent to which other sentencing purposes must be given some prominence. You have been given a number of chances by the courts and you have just not taken them. Deterrence is plainly of importance in this exercise. Generally speaking, the more serious the offence, the more weight will be given to other sentencing purposes such as punishment, community protection and deterrence, with less weight afforded to rehabilitation and youth. Your youth is still important and I do not lose sight of it in my sentencing task, but, as I have said already, you are a very long way removed from being a youthful first offender. This leads into the consideration of your future prospects of rehabilitation.
Rehabilitation
69What are those prospects of rehabilitation? You have a lengthy enough criminal history in the Children's Court. You have been given chance after chance in that court and have breached virtually every order imposed. That led inevitably to your being detained. Detention has not put a brake on your offending, nor has a youth supervision order, nor a youth attendance order, nor an undertaking of bail, nor serving out a period on parole. Your offending seemingly has been continuing and escalating.
70You have a long-term issue with drugs. You have no history of paid employment and little by way of training or job skills. You have pleaded guilty at an early stage and have some remorse. You still have a supportive mother and hopefully can access appropriate assistance via the NDIS scheme. You have spent now over 270 days in adult custody. You have not given up on yourself and have some plans for the future and you hope to live some sort of normal existence obtaining work as a plumber or in car mechanics.
71No doubt the time you have already spent in prison and the sentence which lies ahead for you will serve to deter you to a degree.
72By the way, the conditions spoken of and which I have taken into account pursuant to the case of Verdins are matters pretty much permanent in their nature. Certainly the intellectual disability is. Necessarily then, those matters come in to play when I consider the need for community protection. They are not going away. They heighten your risk.
73It is naturally hard not to be guarded as to your prospects for rehabilitation into the future. Your past conduct has given no cause for any great optimism.
74I can only be quite guarded here. I am certainly not going to write you off. I am satisfied that you have some prospects of rehabilitation, but you will have to work hard, much harder than you have for many years. Those prospects of rehabilitation will be conditional upon your complete abstinence from drugs. You have enough significant issues in your life, including a very low level of functioning. Illegal drugs just add to your problems. They would only complicate your life and disinhibit you and lead you back to offending. If you do not desist from drug use in the future, you will have almost no prospect of rehabilitation. None. I am not prepared to reach that very gloomy view now given your age. I am not going to write off an 18-year-old, even one with persistent, serious offending in his past history. I do hope you can change, but your own counsel conceded that the court could only be quite guarded. He is right. I believe there is a sizeable risk of reoffence here. You have some prospects of rehabilitation but I really cannot put it any higher than that.
COVID-19
75I turn to the aspect of COVID-19. The impact of the COVID-19 virus was not mentioned in your counsel's written submissions, but I could see no reason why it ought not apply in your case as it has in so many others that I have dealt with. Fearing that it may be overlooked, I raised it with Mr Antos and this produced a COVID-19 submission from your counsel. The COVID-19 virus and the response to it by those running the prisons has undoubtably increased your prison burden. Prison has been a more stressful environment. Social distancing has not been easy. No doubt there has been a worry about catching the virus in such a setting where there is no level of autonomy. You have spent over 270 days in custody and had the original 14-day quarantine and isolation, which is a pretty unpleasant start. Also the lack of in-person visits in that period, other than one in January.
76As to what lies ahead, it is very hard for me to know. That uncertainty is not that easy for a prisoner and I take that into account. The impacts of the virus upon prisoners has been lessening, with visits resumed and courses getting back underway, but we are obviously experiencing these ups and downs. The events of the last few months with the circuit-breaker lockdown and the temporary suspension of visits shows that, whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may start up again. There will be some ongoing anxiety amongst prisoners as to how they will fare in the future. I take that into account, but I cannot know if limitations will start up again and I must not speculate. I take into account though the impact of the virus.
Category 2 offences and s.5(2H)
77The plea focused upon the sentencing ramifications thrown up by the existence of a single category 2 offence, being the home invasion. It is impossible to impose a combination-type sentence for such an offence unless one falls into one of the exceptions set out within the Sentencing Act 1991. The Sentencing Act sets out a different approach for judges when dealing with such offences. It modifies some of the fundamental principles of sentencing such as parsimony and proportionality. A custodial order is required and not in combination with a community corrections order unless an exception is established by the offender. The exception has to be established on the balance of probabilities.
78Those exceptions are set out in paragraph (2H) of s.5 of the Sentencing Act. Only one was relied upon here in the written submissions being that exception found in s.5(2H)(c)(i). However, that changed in the course of the oral submissions. Your counsel abandoned that submission and relied instead on s.5(2H)(e).
79Now, in the circumstances I will deal with both aspects and in the circumstances I will do that notwithstanding the abandonment of one of those exceptions and the later concessions that have been made that a term of confinement is inevitable here. There was no realistic basis to suggest that you could be dealt with by way of a combination-type order and that has been expressly conceded by your counsel, who was angling and always has been angling for youth justice detention. Nonetheless, I will deal with these matters as a matter of completeness.
Section 5(2H)(c)(i)
80Your counsel had argued in the written submission that you had proven on the balance of probabilities that at the time of the commission of the offence you had impaired mental functioning that was causally linked to the commission of the offence and which substantially and materially reduced your culpability. Impaired mental functioning certainly includes an intellectual disability, there is no question about that. I have already previewed my finding on this topic when dealing with the Verdins submissions, so I will not restate all that I said then. I am satisfied that you had the intellectual disability and those other aspects particularised in paragraph 27 of the written submissions. I am satisfied of the existence of impaired mental functioning at the time of the commission of the offence.
81As I have said, I am satisfied on the materials that it had some causal connection and that drugs were not the sole cause and hence s.5(2HA) does not apply. I am clearly not satisfied that it substantially and materially reduced your culpability. I am not satisfied of that on the balance of probabilities. You were committing rational planned offences. They were not spontaneous. You knew exactly what you were doing and knew it was both seriously wrong and criminal. I am not satisfied there was any substantial and material reduction of your culpability owing to your impaired mental functioning. I am not satisfied that you have discharged the burden under that provision. That is s.5(2H)(c)(i). I interpose it was the absence of evidence of the 'material and substantial reduction' which caused your counsel to abandon the point, correctly so.
Section 5(2H)(e)
82Having correctly abandoned the exception in s.5(2H)(c)(i), your counsel submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imprisoning you. That is the exception set up in s.5(2H)(e).
83Well, I have more than a fair understanding of these particular special provisions in the Sentencing Act, as I dealt with a slightly different provision but one with similar exceptions when dealing with a Director's appeal against sentence in 2019 in relation to an assault upon a paramedic. See the case of Haberfield[5]. I am not going to restate all the principles that apply in your case.
[5]DPP v Haberfield [2019] VCC 2082.
84What I must do is to pay attention to the words used in the sub-section. They are not there by accident. I must also apply other provisions of the Act, which give guidance as to the interpretation of those words. So firstly I must consider the actual words used in the provision. The bar is raised very high here by the words actually employed in the provisions. Not just substantial and compelling, that is already a very high bar, as cases interpreting that older provision made clear. See the case, for instance, of Hudgson.[6] These are very strict provisions with a very high threshold. It is and is designed to be a stringent test. See the case of Farmer.[7] I cannot just ignore the additional words 'exceptional and rare'. They have been added in to make it even harder to establish. The bar is raised about as high as it can be without becoming totally illusory.
[6]DPP v Hudgson [2016] VSCA 254
[7]Farmer v The Queen [2020] VSCA 140
85In determining whether there are substantial and compelling circumstances, Parliament tells judicial officers directly in s.5(2HC) to pay greater regard to general deterrence and denunciation than to other sentencing purposes and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions, not to take into account an early plea of guilty or prospects of rehabilitation. That together with s.5(2L)(a) signals Parliament's stated intention that ordinarily for a Category 2 offence, a term of imprisonment is to be imposed, or at least confinement.
86I do not believe that any of the matters raised on your behalf either individually or in combination rise to the level of being substantial and compelling circumstances which are exceptional and rare and which justify not making a custodial order here. I have your intellectual disability. I do not ignore it, but none of the matters in my view rise to that very high level either individually or in combination. I am not satisfied on the balance of probabilities that the exception is made out. The youth assessment report fortifies my view in this regard.
87I repeat, your counsel in his plea, though raising these matters, was hoping you would wind up in a youth justice facility rather than adult prison. He was not seriously contending a combination-type order in any event.
Section 32(2D)
88It follows that a custodial order and one not in combination is required here. You have served already a period of over 270 days. Plainly that is not enough; no one is suggesting it is. Your counsel does not suggest it is. The problem is I do not believe that it is even open to me to detain you in a youth justice facility. I have the issues thrown up by section 32(2D) of the Sentencing Act, the need to show exceptional circumstances. Your counsel relied on your intellectual disability and impressionability and vulnerability. It seems to me it would be incredible if impressionability and vulnerability could be taken into account as part of the matrix of matters said to be exceptional. This provision at s.32(2D) follows on from the provision at s.32(1) dealing with the preconditions to eligibility for youth detention. Those provisions specifically mention impressionability and embrace concepts of vulnerability. This later provision at s.32(2D) prohibits such an order being made. It is presumably designed to avoid those who might otherwise be eligible for detention in a youth justice facility from being sent there by virtue of their past and current offending. Surely matters of vulnerability and immaturity and impressionability are excluded from consideration. It would be incredible then to go back to the criteria underpinning the order which is actually being prohibited by those provisions. But I do not finally resolve that issue.
89I have considered all the matters that have been raised on your behalf. I do not view any of the matters placed before me as being in any way exceptional. They are not. They are quite common.
90So I am not satisfied that exceptional circumstances exist under s.32(2D). You have come nowhere near establishing exceptional circumstances, in my view. Secondly, quite aside from those very strict provisions, what I have to do is pass an appropriate sentence and you have seemingly not been deterred in the least in the past by such outcomes. You have been sent to Youth Justice in the past. Prison beckons for you now given the nature and gravity of these offences and the existence of a bad track record before the courts. Finally, of course, there is the assessment report, which is massively problematic and is conceded to be so by your counsel. I am not going to set out the detail of the report. They are experts in the preparation of these reports. You are not even judged to meet the criteria by those who have authored the report. Now, of course that conclusion is not binding upon me, but I must say I am entirely unsurprised that they reached that view. I agree with it. Youth justice is not even an option here. I am not satisfied that there are those reasonable prospects for rehabilitation spoken of in that provision, or for that matter that you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison such as to warrant such an order.
91So Youth Justice is not an option for the court. Your counsel I think recognised the realities of the situation in his submissions earlier today.
The offences
92I do not believe there is any great need to traverse the facts of the offences. I have already done so briefly as I introduced the offences earlier in my reasons. I will sentence according to the agreed statement of facts. The home invasion is the most serious of the offences. It was a serious criminal offence. Once inside the premises you certainly knew that there were people there. Perhaps you did not prior to entry. I certainly cannot find against you that this was an entry with mayhem or confrontation in contemplation, as is sometimes the position. However, once you entered, you and your offsiders then conducted yourselves brazenly, collecting property and making the demands spoken of. By that stage there were clearly these young occupants within the house. The criminal damage is not part and parcel of the home invasion. The robbery and attempted robbery were of youngish victims in their own home in the midst of a very frightening home invasion. The theft was sizeable enough. The residential burglary was not out of the ordinary, the related theft was, in that you stole the family pet, amongst other things. Again you choose to drive when you should not. Again you commit serious offences on bail and again conditions of bail are of no concern to you. You just breach them. The proceeds of crime offence is not particularly serious in my view. The car theft led to sizeable enough damage to that vehicle. You have highly relevant criminal history, albeit in the Children's Court. The drug offence is scarcely worth mentioning. It is far less serious. It is the least of your problems.
Purposes
93I have to consider a number of purposes of sentencing. I must pay regard to your prospects of rehabilitation. As I have said, it is hard not to be guarded, but I am prepared to find that you have at least some prospects into the future.
94I am required to justly and proportionately punish you for your crimes.
95I must also denounce your conduct.
96I must pay appropriate weight to specific deterrence. I have spoken of some moderation owing to your intellectual disability, but there is still the need to deter you from offending in the future. That can and must be achieved.
97Community protection is also of real importance. I must give it some weight, no doubt less weight than would be so if you were a good deal older.
98General deterrence, though moderated, is by no means eliminated. It is still an important enough purpose of sentencing here.
99This court must send a clear message to others in the community who might be thinking of committing this style of serious crime. Like-minded offenders must be deterred.
100I have to take into account the maximum penalties. I also have to pay regard to current sentencing practices and the impact of your crimes. These crimes have had a sizeable enough effect especially the home invasion and related offending. These young victims will never forget the day their house was violated and they came face to face with you and your offsiders.
101As to current sentencing practices, it is not a single controlling factor. There is not even a Sentencing Advisory Council snapshot for home invasion. There is some Sentencing Advisory Council online data for that offence. It shows a pretty sorry tale with a median sentence of four years. The most common sentence falls in the band of five to six years. These, however, are just statistical terms and I am not to sentence according to statistical measures. I have looked at some instances of sentencing for home invasions as disclosed in the new Judicial College of Victoria Sentencing Manual (at 6.14.1 and 2).
102I am sentencing you for your crimes and that is not a mathematical or statistical task. Other cases are not precedents and statistics always have inherent limitations. Many of those other cases that I have looked at have aspects of planned confrontation as part of the motivation for the entry. That is trespassing with intent to assault, sometimes even with the carriage of weapons. They are very different events from the one I am dealing with.
Totality
103I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and also to ensure that the total effect of my sentences is commensurate with your criminality. Here we have differing crimes targeting differing victims though mostly on the same day. There is a relationship between some of the offences. I cannot just roll all these sentences in together. There are differing victims and impacts. There must be a level of cumulation in the circumstances. I have to pay regard to the provisions of s.16(3C), which reverses the usual presumption of concurrency in relation to the sentences passed upon the offences committed whilst on bail.
104I will moderate the extent of cumulation here across the indictment and the summary charges, to give weight to the important principle of totality. These were a tightly grouped series of offences committed by a youthful offender.
105Prison is always a disposition of last resort. As I have said, your counsel was at one point urging me to impose a combination disposition, namely prison, with your ultimate release onto a community corrections order with a justice plan. But that was conditional upon my being satisfied of the discharge of your burden under s.5(2H) of the Sentencing Act. I am not so satisfied that that burden has been discharged, but, even if had it been, I would have been left with no option but to impose immediate confinement here and not in combination.
106As I have said, your counsel's primary submission in this case was that I should impose a term of detention, that is detention in youth justice facility, but that was conditional upon the finding of exceptional circumstances and my being satisfied that the criteria were also met. Well, exceptional circumstances do not exist , nor are you even suitable and your counsel recognises the difficulties posed by the assessment report.
107I must pass appropriate sentences and then I must order an appropriate level of cumulation and that leads to a sentence of imprisonment of a dimension where the law requires me to fix a non-parole period. When I pass a sentence of two years or more, as I plainly must here, I am required as a matter of law to fix a non-parole period, other than in some very rare circumstances provided for in s.11 of the Sentencing Act, circumstances which in no way apply here to you.
108So what I will do is provide for a lengthy enough gap between your head sentence and the non-parole period. It recognises your youth and this being your first taste of adult prison. If you keep behaving in the way that you have, it will not be your last taste, I can assure you. I believe that release onto parole would provide your best bet for rehabilitation and the best prospects of successful reintegration into the community. It provides therefore the best chance of community protection as well. I will provide for at least the possibility of your early release by fixing a modest enough non-parole period. Now, I cannot speculate as to whether you will actually be released on parole and nothing that I will say or have said already as to the advantages of structured release detracts from that position. I must and do proceed on the basis that you will serve every day of the head sentence that I will shortly pronounce and that is because, as I say, I am not allowed to take into account the possibility of your early release on parole. The Adult Parole Board will make that decision as to whether you can be released and that has nothing to do with me.
109However, it is my view that a structured release will give you and the community the greatest hope. I make it plain again that I sentence on the understanding that you will serve every day of my head sentence and that whether you will be paroled or not, is not something I can take into account. I am obliged to fix a non-parole period and I do.
110So I am sorry to have spoken for so long, especially in areas that I am sure you will find difficult to understand, but it is important that not just you but others understand why I am doing what I am doing, what I have had regard to, what I have taken into account, what I have not found established. That is why I have taken so long and I apologise for having to go into some of the legislative framework, but I was required to.
111I will have you remain seated, given that we are using the video link in this process, and I will pass sentence upon you. You will lose track of the particular numbers, all right? You will lose track of the relationship between these sentences. You will not know what it all means, but I will explain it to you towards the end. I will tell you what the total effective sentence is and then I will fix the non-parole period. So do not just add up the periods of sentence to try and work out what you are looking at. That is not the way it works. I will explain all this to you. And no doubt at the end of this process you will be able to speak to your solicitor.
Forfeiture
112There are a couple of ancillary orders that are made without objection, a disposal order and a forfeiture order. I have signed those orders. I pronounce them in very much abbreviated fashion. There is a Confiscation Act order under s.33(1) of the Confiscation Act 1997 dealing with the items. There is the cash the subject of the property suspected of being the proceeds of crime offence. I am satisfied that the criteria for making that order is made out and that amount of money is forfeited to the Minister.
Disposal
113Secondly there is an application under s.78(1) of the Confiscation Act for disposal of various items referred to in the schedule. There is no opposition to the making of this order. I am satisfied that the property is relevant property, and that the criteria for the disposal is made out. It is forfeited to the State and it is to be held and managed in the way contemplated by the signed order. So I have signed that document as well.
114This brings me to the actual charges and the individual sentences. As I say, wait to the end and you will get some sense of the extent of the cumulation as between the charges.
Indictment
115Charge 1, home invasion, you are convicted and sentenced to two years 10 months' imprisonment. That will be the base sentence.
116Charge 2, criminal damage, you are convicted and sentenced to seven days' imprisonment.
117Charge 3, robbery, you are convicted and sentenced to 18 months' imprisonment.
118Charge 4, attempted robbery, you are convicted and sentenced to 14 months' imprisonment.
119Charge 5, theft, you are convicted and sentence to six months' imprisonment.
120On Charge 6 and 7, they are the burglary and theft of the other premises, that is at Yardley Drive, I believe it is both open and appropriate to impose an aggregate sentence given the relationship between those two offences. On those two offences you are convicted and sentenced to an aggregate term of 10 months' imprisonment.
121Charge 8, car theft, I convict and sentence you to six months' imprisonment.
122On Charge 9, possession of a drug of dependence, I convict and fine you $300.
Related summary offences
123There are then the summary matters. On the summary charge of committing an indictable offence on bail and breach of your conduct conditions of bail, again I believe an aggregate sentence is open and appropriate on those two charges. So on those two charges you are convicted and sentenced to an aggregate of 10 days' imprisonment.
124On the summary offence of unlicensed driving you are convicted and sentenced to two days' imprisonment.
125I convict you and impose a one-day prison term on the property suspected of being the proceeds of crime offence.
Cumulation
126The base sentence is therefore the two years 10 months, or 34 months, imposed on the offence of home invasion.
127I make the following orders for cumulation. I direct then that:
§One month of the sentence imposed on Charge 5, theft,
§Two months of the sentence imposed on Charge 8, car theft,
§Three months of the sentence imposed on Charge 4, the attempted robbery,
§Five months of the sentence imposed on Charge 3, robbery, and
§Six months of the aggregate sentence imposed on Charges 6 and 7, the residential burglary and theft,
is to be served cumulatively upon the base sentence and upon each other. All the other sentences will be served concurrently with each other and upon the base.
128I have to this extent otherwise directed under the provisions of s.16(3C). I have treated the fact of being on bail as a matter of aggravation, and so it would doubly punish you to cumulate the sentence for the bail offending in my view.
Total effective sentence
129These orders result in a total effective sentence of 51 months or four years three months' imprisonment.
Non-parole period
130I fix a period of 27 months, or two years and three months, during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
131You have already served 275 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Licence orders
132On Charge 8, the charge of car theft, I must make an against your licence. I order that all licences and permits to drive are cancelled. You are disqualified from driving in this state for a period of 12 months. I have considered whether I should structure a licence order in such a way as to have it operative upon you at the time of your release, whenever that is. I have decided against such an approach, though accept that the order I now make will have no real impact. The 12-month order will take effect from today's date.
Section 6AAA
133I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these various offences, I would have convicted and sentenced you to six years' imprisonment. I would have fixed a non-parole period of four years and that statement is to be entered into the records of the court.
134Are any other matters at all?
135MR McCONAGHY: No, Your Honour.
136HIS HONOUR: Any other matters, Ms Bowler?
137MS BOWLER: No, Your Honour, thank you very much.
138HIS HONOUR: All right. Are you each - as I say, I'll revise these reasons once they're back from VGRS and I'll make them available to the parties as soon as that has been done. It’s not that easy sort of following these figures. Are you each satisfied that you understand each of the individual sentences and the extent of cumulation that's pronounced?
139MR McCONAGHY: Yes, Your Honour.
140MS BOWLER: I do, Your Honour.
141HIS HONOUR: If there was some mathematical issue you'd tell me, but the maths works out as far as you're concerned?
142MR McCONAGHY: It appears to, Your Honour. I'll look at it again.
143HIS HONOUR: All right.
144MR McCONAGHY: If there is any issue I'll be in contact.
145HIS HONOUR: Anyway, as I say, that was my intended outcome, is the four-year, three-month head sentence with a decent gap with a non-parole period of two years and three months or 27 months. Of course your client will understand he gets credit already for the 275 days that he's served to this point.
146We've probably got the link for a little bit longer. Ms Bowler, are you wanting to just use the link which we've got here to have a bit of a chat to your client just to explain any of these things or do you want to do that separately or maybe both actually?
147MS BOWLER: I'll do that separately, Your Honour. I would like for him to digest this sentence and I will book in a Jabber with him very shortly.
148HIS HONOUR: So you don't want to have a brief chat now with him?
149MS BOWLER: No.
150HIS HONOUR: All right.
151MS BOWLER: No, thank you, Your Honour.
152HIS HONOUR: All right. So we'll take Mr Jal off the mute then, if we could. So, Mr Jal, Ms Bowler will be in contact with you just to have a chat about today's outcome. Do you understand?
153OFFENDER: Yeah.
154HIS HONOUR: So she will tee up some sort of meeting, a video link or something like that, with you to discuss what's occurred and your rights in relation to what's occurred as well. As you've heard, I've sentenced you to a total effective sentence of 51 months, or four years and three months' imprisonment. I've fixed a non-parole period of 27 months, or two years and three months. I've made an order against your licence, which won't have any effect upon you, and you get the credit already for the 275 days that you've served.
155So Ms Bowler wants you to digest the sentence and she'll be in contact with you to discuss what's occurred and your rights in relation to what's occurred, all right?
156OFFENDER: Yeah.
157HIS HONOUR: So that completes the matter.
158MS BOWLER: Thank you, Your Honour.
159HIS HONOUR: Again I'm sorry it's taken so long. I'll sign the formal orders down in my chambers. So I think that completes the matter, thank you.
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