Director of Public Prosecutions v Kala
[2025] VCC 1122
•6 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-00518
CR-25-00517
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRISTAN LOFFEL and RONAD KALA |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2025 | |
DATE OF SENTENCE: | 6 August 2025 | |
CASE MAY BE CITED AS: | DPP v Kala & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1122 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence
Catchwords: Carjacking – robbery – armed robbery – attempted robbery – handling stolen goods – possession of a drug of dependence – possess controlled weapon – early plea of guilty – young offender – substance use – Category 2 offending – parity
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Mills [1998] 4 VR 235, Azzopardi v The Queen (2011) 35 VR 43; Boulton v The Queen [2014] VSCA 342; Wright v the King [2023] VSCA 243
Sentence:
Tristan Loffel 14 months imprisonment and an 18-month community correction order
Ronad Kala 11 months imprisonment and an 18-month community correction order
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr E. Young | Office of Public Prosecutions |
| For the Accused Loffel For the Accused Kala | Ms C. Hart Mr I. Polak | Mr T. Brumby-Rendell Ms A. Valos |
HER HONOUR:
1Tristan Loffel and Ronad Kala on 22 July 2025 you each pleaded guilty to charges arising out of a series of incidents that occurred on 31 July 2024.
2Mr Loffel, you pleaded guilty on Indictment Q11612509 to one charge each of carjacking, robbery, armed robbery, attempted robbery, handling stolen goods and possession of a drug of dependence. In addition, you consented to this court dealing with a summary related offence and pleaded guilty to Charge 6 of possess controlled weapon. You admitted a relevant prior criminal history.
3Mr Kala, you pleaded guilty on Indictment Q11612713 to two charges of obtaining property by deception, one charge each of carjacking, robbery, armed robbery and attempted robbery. You also consented to this court dealing with a summary related offence and pleaded guilty to Charge 5 of possess controlled weapon.
Circumstances of the offending
4The circumstances of your offending are set out in the prosecution opening for plea dated 17 July 2025. This document was tendered at the plea hearing, what follows is a summary.
5At the time of your offending, Mr Kala you were 20 and Mr Loffel you were 22. You are now 21 and 23 years old respectively as at the date of sentence. You committed these offences with Moo Lweh and Nahom Yilma and as I said the offending occurred on 31 July 2024 and it was between the hours of 4 am and 12 noon.
6In the early hours of the morning, your co-offender Mr Yilma used a debit card belonging to another to purchase various items. At approximately 4 am, Mr Yilma and you, Mr Kala, attended a BP service station in Braybrook in Mr Lweh's car, a black sedan with a grey bonnet. Mr Kala you used the same debit card to purchase cigarettes valued at $50.55.
7Later, you both, together with Mr Lweh and Mr Yilma, attended a carpark in Tarneit. Mr Yilma was driving Mr Lweh's car.
8At around 5 am, Elizabeth Mayo was sitting in her Nissan Pulsar. She noticed a dark coloured sedan parked nearby. As she was about to get out of her vehicle, she saw a male wearing dark clothing standing at her driver's door. She described the male to be of African descent, thin build, 175 to 180 cm tall, and wearing a black hooded jacket or jumper with the hood up, black pants and black footwear.
9The male opened the door and said, 'get out of the car'. The victim said, 'please don't take my handbag or car. I'm a pensioner. I don't have money. I can't afford another car'. The male said, 'get out of the car, just get out of the car'. In fear, Ms Mayo got out of the car. She observed you both, together with Mr Lweh, standing near her car.
10Mr Yilma then approached the group and said 'let her go'. He then grabbed Ms Mayo by the arm and spun her around and grabbed her handbag which contained a Samsung mobile phone, a wallet containing a NAB credit card and Cancer Council sunglasses.
11Mr Loffel and Mr Kala, you got into Ms Mayo's vehicle with Mr Lweh and Mr Yilma got back into Mr Lweh's black sedan and both vehicles left the carpark.
12You assisted in the commission of these offences by encouraging each other through support in numbers during the carjacking and robbery.
13At approximately 6 am, Darren Bartley was walking home along the train line near Werribee. He was approached by four men, including both of you. One of the men had a machete and one of the group said that if Mr Bartley did not give them his belongings, he would be sliced with the machete. Mr Bartley handed over his backpack which contained his wallet, some tools, a black Oppo mobile phone, four rings, Reebok shoes and a Harley Davidson beanie. The men then left together in a vehicle.
14You were each complicit in this offending by agreeing to commit an armed robbery with the other co-offenders.
15At approximately 7 am, you, Mr Kala, used the stolen debit card to purchase further items from a 7-Eleven at Hoppers Crossing.
16Later at around 12 noon, you both with the other co-accused approached Ifiok Uko who was walking on the footpath behind the Point Cook Library. Mr Uko was wearing headphones at the time. You all surrounded him and Mr Loffel said, 'I want your stuff'. Another of your group searched through Mr Uki's pockets and he ran away in fear. Mr Lweh chased Mr Uko for a short distance before Mr Lweh dropped a long knife that he had in his pocket.
17You were complicit in this offending by being party to an agreement, arrangement or understanding to commit a robbery.
18The police identified Mr Lweh's vehicle which had been used in the offending. At 12 noon you all walked back to the car, and you were arrested by police. Mr Kala, when searched by the police at this time, you were found in possession of a black 'tactical master' machete, the key to Ms Mayo's vehicle, an Apple gift card, an Amaysim sim card starter pack, a purple iPhone, a black balaclava, a pair of black sunglasses and black gloves and this is the basis of the related summary offence.
19Mr Loffel, when you were searched by police, you were found in possession of a machete, a Costco card, sunglasses, wireless earbuds and a red iPhone and again that relates to possess controlled weapon charge that you have pleaded to.
Victim impact statement
20A victim impact statement from Elizabeth Mayo was tendered to the court and also read to the court. Ms Mayo described that she no longer feels safe and is fearful when pulling into her work carpark, where the offending occurred. Ms Mayo now sits in her car with the motor running and the car in gear until a work colleague arrives. Only then can she leave her car. She described the difficulty in leaving her house alone, and she now has a family member accompany her to everyday activities such as shopping. As a result, Ms Mayo, who was previously a very independent person, feels that her independence has been taken away from her.
21While no further victim impact statements were tendered, I have no doubt that the offending was a frightening experience for both Mr Bartley and Mr Uko.
22I have taken into account the impact of your offending upon your victims in sentencing you.
Nature and gravity of the offending
23The offences of carjacking and armed robbery, in particular, when committed in company with others are inherently serious offences. Not only are these offences punishable by 15 and 25 years' imprisonment respectively, but Parliament has designated them as Category 2 offences. Section 5(2H) of the Sentencing Act1991 requires the Court to impose a custodial sentence, other than a term of imprisonment in combination with a community correction order for Category 2 offences, unless one of the exceptions set out in paragraphs (a) to (e) can be established.[1] The consequence of this categorisation reflects Parliament's very real concern to protect people from violent property offences.
[1] Sentencing Act1991 (Vic) s 5(2H).
24Mr Young, who appeared to prosecute, submitted that your offending was very serious as you each acted as part of a group of four offenders and in doing so put your victims in fear. He also submitted that whilst it may be difficult in some instances to make out who uttered particular words or took particular actions, you are each liable for the actions of the group.
25As to your role, Mr Loffel, your counsel Ms Hart submitted that you were not the person who opened the door in the carjacking, although you did admit in your record of interview that you asked the lady for her keys. Ms Hart submitted the armed robbery was committed in agreement with others and although the machete was sighted in the offending, it could not be assigned to an individual and it was not used to inflict or threaten injury. Your role in the attempted robbery was to ask the victim for his 'stuff', however you were not involved in pursuit of the victim and had no weapon. Overall, Ms Hart submitted your offending occurred over a confined period with no incident being protracted and there being no threats made. Although, Ms Hart conceded on your behalf that the offending was serious, she submitted it was not a serious example of each offence.
26Mr Kala, your counsel, Mr Polak, conceded that you acted with co-offenders and that as one of four offenders the terror for your victims would have been increased. Mr Polak submitted that the prosecution does not specifically mention you as having taken any particular action or role, other than you being present and assisting and encouraging your co-offenders. Mr Polak submitted that you were present for and active in the obtain property by deception offending. Further, he submitted there was no evidence of your use of a weapon in any of the offending on the night.
27In my view, each of you have pleaded guilty to very serious offences. However, I do not consider the circumstances of your offending, particularly the carjacking, armed robbery and attempted robbery to be the most serious examples of these offences. I find that each of you had a limited role in the offending and consider the real gravamen to be, that you offended as a group of four against vulnerable members of the community. Your offending was not sophisticated or planned, and it occurred over a relatively confined period. It is my view that in each case, your offending was related to your ingestion of substances and being part of the group.
Personal circumstances - Tristan Loffel
28Mr Loffel you were born in Portland, Victoria and raised in Werribee. You have an older sister. At the age of 14 your sister left the family home. You had been close with your sister and were unable to cope with her absence. You have not maintained contact with your sister, however more recently I think that you have had some contact. Your relationship with your parents and your behaviour and attendance at school deteriorated from this time.
29Your father worked in train maintenance but has now retired and your mother worked as a cleaner and in warehousing. When you were 17, your parents separated. You later learned your father had been unfaithful to your mother. You were not witness to any domestic violence between your parents.
30Initially, you lived with your mother until she asked you to leave, and you spent some weeks with friends and then moved to live with your father. You remained with your father and his new partner until you relocated to Bendigo. You continue to keep in touch with your father and your relationship with your mother has slowly improved and is currently positive. You plan to live with her upon your release.
31You attended primary school at Heathdale Christian College for prep, before moving to Wyndham Park. You had no issues with literacy but required some tutoring for numeracy.
32In Year 7 through to Year 9, whilst at Wyndham Central Secondary College, your behaviour deteriorated. You were regularly truant, choosing to use cannabis with your friends who were a negative influence. Your parents subsequently enrolled you in boarding school at St Patrick's College in Ballarat for Year 10. You hated this experience, and you were angry at being forced to attend. Your poor behaviour continued. You were involved in fighting, smoking and cannabis use and ultimately you were expelled. You returned to Wyndham Central, although you were asked to leave during Year 11, again due to poor behaviour.
33After leaving school, you commenced a Certificate II in Building and Construction and worked at a fast food restaurant for two months. Around this time your parents divorced, and you ceased employment. Your substance use increased and whilst living with your father you obtained youth and unemployment benefits.
34It appears from your prior history that you were involved in serious offending around this time. You were placed on probation with a condition to comply with Youth Justice in Bendigo. You had moved to Bendigo to live with your then partner and her family. You had known this woman from primary school and reconnected through a mutual friend. Together you had a son, who is now four years old. Your relationship ended due to your infidelity, and you have had no contact with her or your son since. You hope to have contact with your son in the future.
35Whilst in Bendigo you gained work as a renderer and to your credit maintained this employment for two years. Further offending around this time resulted in an 18 month community correction order which you completed through Bendigo community corrections Centre.
36Substance abuse has been a big issue in your life since Year 9, when you commenced alcohol and cannabis use. Your use of both of these substances soon increased in frequency with you smoking three to four grams of cannabis daily and binging on considerable amounts of alcohol. This pattern continued until your remand.
37In Year 10, your use of methamphetamine began and that was on the day after you were expelled from boarding school. You felt rejected by your parents, as you were not allowed to return home. You spent time with friends who were using ice and decided to try. You have experimented with heroin and hallucinogens with no regular use and commenced consuming non-prescribed benzodiazepines, in particular alprazolam, commonly known as Xanax, two years ago. Your use of Xanax has persisted despite the negative effect of loss of memory at times. You reported use up until your arrest when you would 'just pop three pills' once a week.
38Your use of substances has since been frequent. Although at times you have attempted to stop, you have been unable to achieve sustained abstinence. You had one period of sobriety from alcohol and methamphetamine use when your partner became pregnant but relapsed into ice use after your son was born, and alcohol use when your relationship ended.
39At the age of 21 your relationship ended, and you moved back to Melbourne. Your counsel submitted that you consider this to be one of the biggest mistakes you have made. At the time of your arrest, you were in unstable accommodation, you were unemployed, and you were abusing substances. Your counsel advised the court that you had been involved in subsequent offending which resulted in your remand on 3 September 2024. On 25 March 2025 you pleaded guilty to charges of recklessly cause injury and affray and were sentenced to three months' imprisonment with 52 days' pre-sentence detention reckoned as served. Your bail for this matter was revoked on 14 October 2024, which has resulted in 248 days of pre-sentence detention being available for this matter. I note however that you have been in custody for a total of 339 days and I have taken into account the extra 91 days you have served on a totality basis.
40Whilst in custody, you have made the most of rehabilitative programs that have been offered. Certificates were tendered on your behalf to confirm that you have completed the following programs, 'Building Better Relationships', 'Changing Gears', 'Alcohol & Me', 'Cannabis & Me' and 'Ice & Me'. In addition, you have undertaken education completing Certificate II in general education for adults and several certificates in work and vocational skills, supply chain operations and hospitality. You have also worked as a yard billet during your remand.
41Significantly, you have been working with the YMCA Bridge Project to improve and facilitate your ability to gain employment upon release. A letter from Michaela Ralston, senior case manager from that organisation, details that you have completed a work readiness and Life Skills Course offered by the YMCA as well as their ReBuild Program in Industries. This program, she described, imparts essential trade and employability skills, including punctuality, time management and overall work ethic. Ms Ralston observed that you exhibit a strong readiness to implement positive changes to your life and consistently demonstrated politeness and respect, you received constructive criticism with grace and displayed commendable work ethic. Upon your release, you will receive six months' comprehensive case management support, with a case manager to assist you to navigate challenges and support you to remain crime-free through obtaining employment and through guidance and advocacy to sustain the job.
42It is your goal to remain abstinent from illicit substances and you recognise that you need supports to assist with this change. Currently, you plan to remain sober, return to work and live a settled life.
Psychological report – Tristan Loffel
43Mr Loffel, at your plea on 22 July 2025, Ms Hart tendered a psychological report from Laura Fleming. Ms Fleming assessed you as having severe substance use disorders that contributed to your offending. Your substance use, which had involved alcohol, methamphetamine, benzodiazepines and hallucinogens, began as a maladaptive coping mechanism after family disruptions in early adolescence. You are currently in early remission in custody. Ms Fleming conducted psychometric testing which categorised you as high risk for alcohol and drug dependency.
44Your chronic substance abuse is one of the factors which Ms Fleming found to have contributed to your offending. Further contributing factors include: maladaptive coping with distress, association with antisocial peers, unstable family and social relationships, educational and employment instability, lack of prosocial support networks, poor coping and emotional regulation skills and impulsivity and poor decision-making. These factors interact to increase your risk of offending, particularly when exposed to stress, lack of stable accommodation or relapses into substance use. Ms Fleming assessed you as posing a low-moderate risk of imminent violence given that you are currently in a controlled environment. You require a moderate level of supervision, intervention and resources to manage the risk.
45With respect to your prospects of rehabilitation, whilst on the one hand your young age increases certain risks due to ongoing neurological development, it also offers a strong opportunity for rehabilitation if you receive age-appropriate intensive support and intervention. To support you in your treatment and rehabilitation, Ms Fleming recommended that you receive intensive AOD counselling to address your pervasive substance use, psychological support for development of coping skills, that you maintain abstinence from substance use, that you engage in stable employment and meaningful activities, that you build and maintain prosocial relationships and, finally, you receive robust transitional support upon release from custody.
46Your transition into the community will need to be further supported by intensive supervision, coordinated referrals to treatment and support services, stable accommodation and structured routine through work or study. Ms Fleming found no evidence of major mental disorders or personality disorders. She did however assess you as having moderate anxiety.
Personal circumstances - Ronad Kala
47Mr Kala, you were born in Uganda, your family having fled South Sudan before your birth due to ongoing conflict in the region. You lived in Uganda with your family and some extended family until you were 11 years old. When you were six years old, you and your mother visited South Sudan. During this visit you were witness to scenes of violence and atrocities that you likely did not fully comprehend at the time due to your young age.
48Growing up in Uganda presented numerous challenges, primarily racial discrimination. You were often excluded and struggled to fit in. These experiences of exclusion and racism contributed to a difficult upbringing. You are the second oldest of five children and you have one brother and three sisters. You are close to each of your siblings, particularly your two younger sisters. None of your siblings have encountered any legal or substance-related issues. While growing up in Africa, you and your siblings lived in one house with cousins and other extended family members. This environment was often fraught with tension, fighting, and arguments. You frequently felt like you did not fit in with the extended family dynamics, which contributed to a sense of isolation.
49Extended family had already settled in Australia, and this provided motivation for your family to migrate here. The process of coming to Australia in 2015 was lengthy, requiring vaccinations and multiple interviews with immigration officers. Upon arrival, your family moved to Melbourne and initially settled in government housing in Werribee. After approximately four years, they were able to rent a house in Werribee before eventually purchasing a property in Wyndham Vale. The financial burden of purchasing a home has placed significant strain on your parents, who have struggled to meet the mortgage payments despite the fact that they are both employed in aged care.
50Adapting to life in Australia has been challenging for you. These challenges included difficulty fitting in, largely due to differences in accents, dialects, and cultural backgrounds. The contrast in upbringing and experiences have made it harder for you to relate to peers when you first arrived.
51Currently, you are in custody but plan to live with your mother, father, and five siblings at the family home in Wyndham Vale, upon release. There are no issues as I have said related to alcohol or other drugs in the family home. Regarding family dynamics, you have a relatively good relationship with your parents, although they are understandably upset about your current situation. Within the family home there has been no violence apart from appropriate discipline.
52You attended primary school in Uganda. In Australia, you started Grade 5 and completed Grade 6 at Werribee Primary School. Your transition to the Australian school system was difficult because of differences in school structure, longer hours, and a new learning environment. You found it hard to adapt to the changes and struggled with picking up academic concepts. Socially you did not fit in and did not have many friends. You were not a victim of bullying, nor were you suspended or expelled. Any peer associations during this time were not a positive influence, however you generally remained a good student with the support of a teacher's aide. You participated in English as a Second Language (ESL) classes to improve your language skills, as you had only basic English knowledge.
53Your secondary schooling was completed at Werribee Secondary College from Grade 7 to Grade 12, where you pursued the Vocational Educational and Training (VCAL) pathway. During your time in secondary school, you made friends and began to adjust better to your surroundings. Despite your efforts, your grades were not satisfactory, and you became disillusioned with your studies. Over time, you became less motivated and struggled to achieve the grades you desired, eventually adopting a more passive attitude towards school. You were suspended on one occasion in Year 9.
54In the past, you have worked towards completing certificates in mechanics and carpentry and your goal was to pursue a career in carpentry, however, you could not find employment in the field. While still in school, you worked part-time at Star Car Wash in Werribee Plaza for approximately 18 months. After finishing school, you continued working in bricklaying for about a year, taking on cash-in-hand jobs with a friend. Your employment was terminated when you were imprisoned on 2 September 2024. In early September 2024, while on remand, you have been working in the laundry service.
55Before your incarceration, you started but did not complete a building certificate and a warehousing certificate. You have expressed hope that upon your release, you can pursue an apprenticeship in either bricklaying or mechanics.
56You have not had an intimate relationship or any casual partners. Historically you have associated with negative peers. Over time, your peers began to mature, take on jobs and start living more independently. You have not kept up with these peers and recognise the need to create a new social circle. Your primary source of support comes from your family, who have stood by you through difficult times. No-one in your family as I have said has had contact with the criminal justice system or been involved in the use of illicit substances.
57Your history of substance abuse began with cannabis use when you were aged 15. Your use of cannabis remained relatively consistent until your arrest in September 2024. Typically you would smoke two to three grams a day. At age 17 you began drinking alcohol. What started as use on weekends increased over time and became more regular with use during the week, during both day and night. Before your arrest you were drinking once or twice a day, around three to four times a week. Also at age 17 you experimented with nitrous oxide. After about a month of regular use, someone advised you it was not good for your brain, and you ceased use. However, you resumed using nitrous oxide a year later and continued using it for several months before your incarceration.
58Since the end of 2022, you have used alprazolam or Xanax. Your use started towards the end of secondary school, when you were struggling with personal issues, such as unemployment and poor finances. At the time you offended you were using Xanax two to three times per week and had taken two pills on the night. This drug helped you forget your problems, but also acted to disinhibit your behaviour. Your use of methamphetamine commenced in 2023 and you were introduced to the substance through your friends. Initially, you smoked it occasionally, however after six months your usage became daily for around a month and after this period your use slowed. You smoked ice once every few months and typically you would consume two to three puffs, around 0.2 grams at a time.
59The longest period you have gone without drugs and alcohol is three months and that was at the beginning of 2024. You have been abstinent during your current remand since September 2024. At the time of offending, you were using methamphetamine, alprazolam and cannabis.
60As a result of this offending you were released on bail supervised by Youth Justice. A requirement of this bail was that you engage in AOD counselling. According to a Youth Justice report, which I note that was not tendered on the plea, but was referred to in Ms Fakhri's report, on 9 August 2024, Youth Justice facilitated a referral to Project Sunrise at Odyssey House for AOD support. You were allocated an AOD worker and attended two of two scheduled appointments. It was reported that you were an active participant in the sessions and expressed a strong desire to improve your life and make healthier lifestyle choices. Your participation in further counselling was disrupted by your re-offending and remand in custody.
61Although you have no prior convictions, you intend to plead guilty to two sets of offences alleged to be committed on 12 June 2023 and 20 August 2024. These matters are listed on 11 August 2025 in the Magistrates' Court. I understand that Mr Loffel was co-accused with you in relation to at least one incident of this offending.
62
You were remanded for one day on this matter and released on bail on 1 August 2024 and on 3 September 2024, or early September 2024, you were again remanded as a result of the re-offending I have mentioned. Your bail on this matter was revoked on 16 October 2024. It is agreed that you have 287 days of
pre-sentence detention available to you for this matter. You have however been in custody since 4 September 2024 which equates to a total of 336 days spent on remand.
63Whilst in custody you have worked in the laundry, and you have worked on completion of an AOD counselling certificate. You have reported feeling 'great' since abstaining from alcohol and drugs and you are motivated to stay away from substances. You acknowledge the challenge that lies ahead and appreciate that you will need support and counselling to achieve your goal of abstinence. Your family have remained in close contact, and you will return home upon your release.
Psychological report – Ronad Kala
64
Mr Kala, at your plea on 22 July 2025, Mr Polak on your behalf tendered a psychological report from Rebecca Fakhri. At your assessment, you reported no formal history of mental illness, and were assessed by Ms Fakhri as a low risk of major mental disorders, despite the traumatic events you witnessed in your early childhood in South Sudan. However, in psychometric testing conducted by
Ms Fakhri, you were assessed as experiencing moderate symptoms of anxiety and depression, particularly in the context of familial stress, legal pressures, and incarceration. Your symptoms were assessed to be consistent with an adjustment disorder. The essential feature of an adjustment disorder is the presence of emotional or behavioural symptoms in response to an identifiable stressor. You reported feeling low mood and motivation, emotional distress and hopelessness in the lead up to your offending. Ms Fakhri opined that your low mood and emotional vulnerability likely reduced your capacity for self-regulation and increased your susceptibility to antisocial peer influence and impulsive, high-risk behaviour. Your recent behaviours suggest an emerging pattern of antisocial conduct, closely associated with peer influence, socioeconomic pressures and substance use.
65Ms Fakhri assessed that you meet the criteria for several substance use disorders, including cannabis, stimulant, inhalant and sedative use disorders. These disorders are characterised by your longstanding use of cannabis and alcohol since the age of 15 and your intermittent, though escalating, use of alprazolam and methamphetamine. Your pattern of substance use is closely related to your offending behaviour, and you resort to substance use to escape difficult emotions and your use becomes more frequent during periods of unemployment and social disconnection.
66Ms Fakhri found you pose a moderate risk of general re-offending. You have demonstrated a favourable attitude towards rehabilitation and a willingness to engage in treatment. Given your young age, your prospects of rehabilitation are all the more promising. Ms Fakhri recommended that you would benefit from culturally appropriate, structured interventions targeting your offending behaviour, substance use, emotional resilience and vocational development.
67You would benefit from specialised AOD counselling to address your substance abuse and to prevent relapse. It was also recommended that you be referred to a psychologist for anger management counselling to build your interpersonal conflict resolution and problem-solving skills. Offence-specific interventions would improve your understanding of violence and its impacts. You require psychological intervention aimed at managing your depressive and anxiety-related symptoms rather than using avoidance. Currently, your depression and anxiety symptoms are perpetuated by your impending legal matters, uncertainty regarding your future, and distance from your family. Finally, you would be benefited in the community by support in seeking employment and in engaging in recreational activities, such as participation in community and cultural organisations that are meaningful to you.
68Ms Fakhri opined that imprisonment is likely to have a negative effect on your development in later adulthood and future behavioural outcomes and further exposure to negative peers. The volatile nature of the custodial environment could also lead to an exacerbation of your mood and anxiety symptoms.
Application of Bugmy principles
69Your counsel submitted that the principles in the case of Bugmy were enlivened in your case. Mr Polak relied on the opinion of Ms Fakhri that your early childhood was marked by profound social exclusion and displacement including exposure to potentially traumatic events during travel to South Sudan when you were very young. Further, on arrival in Australia, you faced significant adjustment difficulties due to cultural and linguistic difference. Ms Fahkri also opined that despite these challenges, you remain connected to your immediate family and made efforts to engage in education and employment.
70I accept that you have been exposed to childhood disadvantage and that your refugee experience has played a significant role in shaping your personality and your responses and I take it, into account in a general way in sentencing. However, I do not find that your experiences rise to the level or have the required causal nexus that would invoke the Bugmy principles.
Plea of guilty
71
I take into account that each of you, Mr Loffel and Mr Kala, have pleaded guilty to these charges at an early stage in proceedings. No civilian witnesses were
cross-examined at committal, sparing them the need to relive what would have been a traumatic experience. Additionally, you have saved the court the time and expense of a trial. In these circumstances, I accept that your pleas have considerable utilitarian value and demonstrate your desire to facilitate the course of justice. I propose to allow an appropriate discount for you both for your pleas of guilty.
Youth
72You are both young men. At the time of the offending, Mr Kala you had just turned 20 and you are now 21 years of age. Mr Loffel, you were 22 at the time of the offending and you are now 23 years of age. There are well established principles that therefore apply in your case, including as follows:
(a) that youth of an offender should be a primary consideration for a sentencing court where the matter properly arises;[2]
(b) young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c) courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) incarceration can impair rather than enhance a young offender's prospects of rehabilitation.[3]
[2]R v Mills [1998] 4 VR 235.
[3]Azzopardi v The Queen (2011) 35 VR 43, 34.
73While the offending before the court is serious, I find that it is not so serious as to entirely displace the principles that generally apply to the sentencing of youthful offenders. In your case, Mr Kala, you are younger and have no prior convictions. Mr Loffel, you are a little older and you do have prior convictions. I accept the psychological opinion advanced on behalf of each of you as to your level of immaturity as compared to adult offenders. In all the circumstances, I consider that significant weight should attach to your youth, with increased prominence in your case, Mr Kala, given your younger age and lack of criminal history.
Category 2 offending
74As I have previously mentioned, the charges of home invasion and armed robbery, when committed in company, are Category 2 offences. Section 5(2H) of the Sentencing Act1991 provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a community correction order), unless at least one of the circumstances set out in sub-sections (a) to (e) can be established.[4]
[4] Sentencing Act 1991 (Vic) s 5(2H).
75Mr Loffel, your counsel did not rely on the exceptions in section 5(2H). Rather, Ms Hart submitted that I could structure your sentence in such a way taking into account time served and provide for your rehabilitation by way of a community correction order.
76Mr Kala, your counsel relied on the exception in s 5(2H)(e), that is, he submitted there were substantial and compelling reasons that were exceptional and rare that justified not making an order for imprisonment.
77In determining whether this subsection has application in your case, I must regard general deterrence and denunciation of your offending conduct as having greater importance than other sentencing purposes set out in s 5 of the Sentencing Act.[5] Further, I must give less weight to your personal circumstances than the nature and gravity of the offending and I must not have regard to your early guilty plea, your prospects for rehabilitation or parity with other offenders.
[5] Ibid s 5(1).
78
Your counsel submitted several important mitigatory factors which combined in your case, and should satisfy the court that substantial and compelling reasons that were exceptional and rare exist in your case. The factors relied upon by
Mr Polak include:
(a) Your background as a refugee;
(b) Your youth;
(c) Your prior good history;
(d) The support you enjoy in the community;
(e) That you have been in adult gaol for 12 months at a very young age;
(f) Your fragility, vulnerability and immaturity.
79After careful consideration of the factors to which I can and cannot have regard, I am not satisfied in the circumstances of your case that there are mitigatory factors that, in combination, satisfy the exception in s 5(2H)(e).[6]
[6] Ibid s 5(2H)(e).
Parity
80The principles that govern parity are well established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. Given the findings I made pursuant to s 5(2H) in the case of Mr Lweh, it is not appropriate to consider his case with regard to parity.[7] In broad terms, his personal circumstances, lack of prior convictions, his very limited role in the offending and lack of subsequent offending justify a disparate outcome.
[7] Ibid s 5(2H).
81However, as between each of you, Mr Loffel and you, Mr Kala, there are circumstances of similarity and difference that I must have regard to when considering the appropriate penalty to be imposed upon each of you. I have dealt with some of these whilst considering the issue of youth and I consider your role in the offending to be quite similar with you, Mr Kala, being slightly less involved.
Rehabilitation
82It is apparent to me that as youthful offenders who have worked and applied themselves to programs in custody, each of you have reasonable prospects for reform. You both have support in the community, and I intend to provide further support and counselling by way programs to assist with your transition from custody into the community and to your further rehabilitation.
Sentencing principles
83The basic purposes for which a Court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
84In my view, given your youth, your psychological vulnerabilities and your general background circumstances, general deterrence must be moderated to a limited degree in favour of your rehabilitation. I consider that specific deterrence for you, Mr Loffel, remains a relevant sentencing consideration and for you, Mr Kala, I accept it should be given limited weight in the sentencing synthesis given your lack of prior history.
85I regard protection of the community is best achieved by providing for your rehabilitation through supervision and programs in the community.
86I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[8] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offences of carjacking and armed robbery. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of each of your cases.
[8] Sentencing Act 1991 (Vic) s 5.
87The principles of totality, proportionality and parsimony are also important considerations here. They require me to make sure the total sentence is appropriate for the total criminality, and I have taken these principles into account in fixing the sentence I will now impose.
88So in my view, the appropriate sentence in each of your cases is the imposition of a gaol term for the Category 2 offences of carjacking and armed robbery and a combination penalty that involves a term of imprisonment and a community correction order for the remaining offences. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[9] You have each been assessed as suitable for a community correction order.
[9] Boulton v The Queen [2014] VSCA 342.
Sentence – Tristan Loffel
89So firstly, Mr Loffel, dealing with your matter. You are convicted of each of the charges before the court. On the charge of carjacking, you are sentenced to 11 months' imprisonment. On the charge of armed robbery, you are sentenced to nine months' imprisonment. On the charges of robbery, attempted robbery and handle stolen goods, you are sentenced to an aggregate term of four months' imprisonment and an 18 month community correction order.
90The sentence imposed on Charge 1 of carjacking is the base sentence and I order that two months of the sentence on Charge 3 of armed robbery be served cumulatively and one month of the aggregate sentence also be served cumulatively. So this equates to a total effective sentence of 14 months' imprisonment and an 18 month community correction order.[10] I reckon the 248 days that you have spent in custody as pre-sentence detention and this will be deducted from the time you are required to serve.
[10]Wright v the King [2023] VSCA 243, [49]-[52]
91On the charges of possess a drug of dependence, you will be convicted and discharged, and in relation to the possession of a controlled weapon, I impose a fine of $250. In relation to the community correction order, as I have said, that is for a period of 18 months and the special conditions of this order are:
(a) That you perform 100 hours of unpaid community work over the 18 month period;
(b) You attend for supervision;
(c) You attend for assessment and treatment in relation to alcohol and drug abuse and also offending behaviour programs.
92I also intend to make it a condition that you do not associate with your co-offenders, so that is Moo Lweh, Ronad Kala and Nahom Yilma.
93I intend to offset 100 hours of treatment against the community work hours. In addition to the conditions that I have imposed, I have to go through the standard conditions that apply to a community correction order.
94I need you to understand what you are consenting to. First and foremost, in relation to the standard conditions, you must not commit any offence during the 18 months period of the order and that is any offence that is punishable by a period of imprisonment. You must also report within two working days of your release and that will be to Werribee community corrections centre, and you are required to advise your supervising corrections officer of any change of address where you are living and working, and this must be done within two clear working days. It is also a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of a corrections officer and you cannot leave the State of Victoria without prior permission during the currency of the order, so that is for the next 18 months.
95If you breach the order by re-offending or you do not do the unpaid community work or the other conditions that I have ordered, you will be charged with a contravention of the order and you will be brought back before me, and you may well be resentenced for the original charges. So firstly do you understand the conditions of the community correction order?
96OFFENDER LOFFEL: Yes, Your Honour.
97HER HONOUR: Okay. Do you consent to undertaking such an order?
98OFFENDER LOFFEL: Yes, Your Honour.
99HER HONOUR: I also make the orders for disposal and forfeiture that were sought by the Crown, and pursuant to s 6AAA of the Sentencing Act,[11] but for your plea of guilty, the sentence I would have imposed is a total effective sentence of two and a half years with a 15 month non-parole period. Sentence – Ronad Kala
[11] Sentencing Act 1991 (Vic) s 6AAA.
100Mr Kala, you are convicted of each of the charges before the court.
101On the charge of carjacking, you are sentenced to eight months' imprisonment.
102On the charge of armed robbery you are sentenced to six months' imprisonment.
103On the charges of robbery, attempted robbery and obtain property by deception, you are sentenced to an aggregate term of three months' imprisonment and an 18 month community correction order.
104The sentence imposed on Charge 2 of carjacking is the base sentence and I order that two months of the sentence on Charge 4 of armed robbery, be served cumulatively and one month of the aggregate sentence also be cumulatively. This equates to a total effective sentence on my calculation of 11 months and an 18 month community correction order. I reckon the 287 days you have spent in custody as pre-sentence detention and this will be deducted from the time you are required to serve. [12]
[12]Wright v the King [2023] VSCA 243, [49]-[52]
105On the charge of possession of a controlled weapon, I impose a fine of $250.
106In relation to the community correction order, as I have said, that is for a period of 18 months and the special conditions of this order for you are:
(a) That you attend for supervision;
(b) That you attend for assessment and treatment in relation to drug abuse;
(c) That you attend for assessment and treatment for mental health and offending behaviour programs.
107Now I have also made a condition that you do not associate with your co-offenders. So that is Moo Lweh, Tristan Loffel and Nahom Yilma.
108In addition to the conditions I have imposed, and I want you to listen carefully, there are standard conditions of a community correction order that you need to understand, and I need to get your consent. So, the first and foremost of the other standard conditions is that you must not commit any offence during the next 18 months which could be punishable by a term of imprisonment. You must also report within two working days of your release and that will be to Werribee community corrections office. You are required to advise your supervising corrections officer of any change of address of where you are living and working and this must be done within two clear working days. It is also a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of a corrections officer. You cannot leave the State of Victoria without prior permission during the currency of the order, so that is for the next 18 months.
109If you breach the order by reoffending or you do not do the conditions that I have ordered, you will be charged with contravention of the order and you will be brought back to court before me. You may be resentenced on the original charges. Do you understand the conditions of a community correction order?
110OFFENDER KALA: Yes, I understand.
111HER HONOUR: Do you consent to undertaking such an order?
112OFFENDER KALA: Yes, Your Honour.
113HER HONOUR: I also make the orders for forfeiture and disposal sought by the Crown and pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, the sentence I would have imposed is a total effective sentence of two years with a 12 month non-parole period.
114Mr Loffel, you will get a copy of your order. That will get sent to you in custody, but I will just take your verbal consent to the order as being effectively your signature.
115Yes, so we will just get the order for Mr Kala signed. Mr Loffel, a really impressive effort in custody. The work that you have done, the work with the Bridge has been really good and I really hope that you can use the case management that they are going to provide you and that you can really stick at that and I hope you can get some work because I think if you get some work, you get a routine, get a bit of help with the drug and alcohol, you can stay away from that, then you have every prospect of being able to avoid coming back to court. Okay?
116OFFENDER LOFFEL: Yep.
117HER HONOUR: So I really hope that you can do that, all right.
118OFFENDER LOFFEL: Yes, thank you.
119HER HONOUR: Okay. So, Mr Kala, similar to Mr Loffel, you have also done some pretty good work in custody. From what I understand, you have been working and certainly not using any drugs and I am hoping that you can really build on that in the community because I think that you understand drug use will land you back in custody. I know that you have got to deal with court on Monday.On my sentence you have got about another six weeks or thereabouts to serve. I want you to really commit to this order and really use the services and programs offered to you. You have got great support from your mum and dad. They are fantastic role models for you, both are hardworking, and have diligently worked in Australia and been able to buy a home and provide for you and your siblings. Okay so I really want you to apply yourself.
120Hopefully you can get some work as well. Hopefully the apprenticeship comes through. I really hope that you can make a go of things and do not come back. You certainly do not want to go back to gaol, it is a waste of time, and it is no good and I certainly do not want you offending, and this applies to you as well, Mr Loffel, because you leave a trail behind you. Those people that you have offended against, no doubt will remember this and be scarred by this, certainly Mrs Mayo in particular. Okay, so I want you to think of her next time you think about getting into trouble and hopefully that will be a deterrent to you. All right.
121Okay, so thank you to counsel for all your assistance. If you could thank Ms Hart for her submissions they were very useful. We will adjourn the court.
- - -
0
3
0