Director of Public Prosecutions v Kele
[2019] VCC 1872
•14 November 2019
| IN THE COUNTY COURT OF VICTORIA CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-18-01665
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAULO KELE |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2019 & 21 August 2019 |
DATE OF SENTENCE: | 14 November 2019 |
CASE MAY BE CITED AS: | DPP v Kele |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1872 |
REASONS FOR SENTENCE
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Subject:Home invasion and theft
Catchwords: Early guilty plea – 21 years old – limited criminal record – complex family background – immature – lengthy compliance with stringent bail conditions before sentence – rehabilitation advanced
Sentence:56 days imprisonment (equivalent to presentence detention) and 2-year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | Office of Public Prosecutions |
For the Accused | Mr A. Pyne | Victoria Legal Aid |
HIS HONOUR:
1Paulo Kele, you have pleaded guilty to one count of home invasion and two counts of theft.
2On 14 February 2018, around 11.30 pm, you with two other unknown offenders, broke into a home at Sunshine. Inside the house the other two offenders picked up knives from the kitchen. One of the people who lived in the house was asleep on a couch. The co-offenders held knives to his throat and woke him. One of them demanded he unlock his phone and told him if he stayed silent he would not be hurt. He unlocked his phone and reset it at the co-offender's request.
3The charge of home invasion is brought against you on the basis that you entered the house as a trespasser with intent to steal, in company with two unknown offenders, while the victim was present. You, with the others, went through the house and stole mobile phones, iPads, cash, passport, wallets, and car keys.
4After the three of you left, the victim went upstairs to tell his housemates what had happened. He was crying and very scared. He declined to make a victim impact statement. The incident was no doubt terrifying for him.
5The three of you drove away in the victim's car. You were a passenger. The driver smashed the car a short distance away. A nearby resident called 000 and reported the collision. The two co-offenders fled; they have never been identified. You were too drunk to make your escape and police arrested you walking along a street a couple of hundred metres from the accident scene. You were wearing the victim's backpack which contained some of the stolen items. Because of your intoxication you were not fit to be interviewed and were remanded in custody.
6Next day, police did interview you and you told them your girlfriend, after an argument with you, walked out of the house and left you with your son. When she did not return you went looking for her. When you found her, she would not talk to you, you got upset, left your son with her and went to Sunshine where you bought two casks of wine. You said you were drinking by yourself behind the library and got drunk when three men approached you and asked you for a drink and you gave them some of your wine. You got into a car with them and all you could really remember after that was a crash when something hit your face and woke you. You were alone in the car. You got out and, as you walked away, police arrested you. You said you were too drunk to remember anything else.
7When asked about the home invasion and your possession of a bag which contained items stolen from the home and the stolen motorcar, you said you did not remember doing anything stupid but you admitted you were probably involved. You said you hoped you did not do anything wrong. To assist investigators, you gave your fingerprints and a DNA sample and participated in an identification parade.
8You were charged with aggravated burglary which did not proceed because the prosecution accepted you were not involved in the co-offenders' conduct of taking knives from the kitchen and threatening the victim with them. You were also charged with home invasion and remanded further in custody.
9You have admitted a criminal record from three court appearances in the Magistrates Court of South Australia at Murray Bridge. You have eight convictions for street offences and one for theft. On 5 February 2016 you were fined $400. On 10 May 2016 you were fined $240, and on 22 June 2016 you were released on a good behaviour bond. The penalties imposed reflect relatively minor offending. At the time of these offences you were aged 21 years and you are now 23. When you were remanded in prison, it was your first time in custody.
10On 10 April 2018, Champion J granted your application for bail. I have read His Honour's reasons for decision. You are a New Zealand citizen born in Tokelau. You came to Australia at the age of six with your family and lived in South Australia. In mid 2017 you moved to Melbourne with your girlfriend and son. At the time of your offending, the three of you were living in a unit at Sunshine. You were not working and were battling alcohol and cannabis issues.
11On 4 December 2017, a family violence intervention order was made at the Sunshine Magistrates Court with limited conditions which allowed for your continued cohabitation with your girlfriend and your son. Following your arrest on 22 February 2018, a further intervention order was made prohibiting contact with your partner and son.
12At the time of your bail application you were homeless. You knew no one in Victoria other than your girlfriend and your son. For a failed bail application in the Magistrates Court, CISP had assessed you as suitable for intensive management, which was to include participation with a youth support and advocacy service and appointments with Launch Housing to assist you to find accommodation
13Justice Champion found, notwithstanding the seriousness of the home invasion charge, as a 21-year-old with a limited criminal history and nearly two months to reflect on your first custodial experience, your further detention in custody was not justified. His Honour released you on stringent bail conditions which included reporting to police three times a week, abstinence from alcohol and a curfew. It also included a condition you not leave Victoria. Relevantly, your family lives at Murray Bridge in South Australia. Significantly, for the 19 months of your bail you have complied with all conditions and not reoffended.
14During the plea hearing, Mr Pyne, who appeared on your behalf, relied on the following materials: an outline of submissions; a psychological report of Carla Lechner; a reference from your parents; a CISP report; a reference from the manager of the Victoria Hotel at North Melbourne; a certificate of completion of the Responsible Service of Alcohol program; the letter of a Hope Street Youth Reconciliation worker, and a letter from the team leader at Second Chance, a Victorian Government sponsored employment agency.
15You have a complicated family history. Your parents come from the Tokelau Islands near Samoa where you were born. You do not know your mother and you were adopted by her niece and her husband. You moved to New Zealand at a young age and have New Zealand citizenship. You then went back to the islands where you lived with your maternal grandparents for about three years. Your parents moved to Australia and when you were six years old you joined them, where they lived in Sydney. The family moved to Townsville and then Brisbane, where you lived for about eight years while you completed primary school and started high school.
16You had learning difficulties at school, and to Ms Lechner's psychometric testing, you performed in the low-average range of intelligence. At the end of Year 10 your family moved to Adelaide where you started work at a meat factory with your parents. You were there for about three years and enjoyed the work. In 2017, you moved to Melbourne with your girlfriend Kaya to be independent. You told Ms Lechner you started using alcohol at the age of 14 or 15 and, when your family moved to Adelaide, you were drinking more heavily, most often with your father who was a heavy drinker. When you were 17, you started using cannabis, which continued until the middle of this year.
17You acknowledged alcohol abuse was a problem for you. You were extremely intoxicated when you offended on 14 February last year. You told Ms Lechner you got drunk because you were upset and you said, 'I know I do stupid shit when I'm upset'. You said you had no recollection of the alleged offences but felt badly for the victim when you found out what you had done. You accepted responsibility for your actions and expressed shame, regret, and empathy for the victim.
18In Ms Lechner's opinion, you are cognitively, socially, and emotionally immature. Your alcohol abuse has undermined your ability to consider longer-term consequences and to engage in reasoned problem solving. I accept when you offended your intoxication compromised your judgment and decision-making. She assessed you as having symptoms of alcohol use disorder in early remission. I also accept Ms Lechner's opinions that, provided you remain abstinent from alcohol abuse and maintain your employment, your prospects of rehabilitation are good, that, by your response to the CISP program, you demonstrated a capacity to respond to community supports and, that further imprisonment would likely have an adverse psychological effect on you.
19You had moved to Victoria with your girlfriend about eight months prior to your offending and with the help of Sacred Heart Mission you were living in Sunshine. When you were released on bail in April last year, Second Chance helped you find work and Launch Housing helped you find somewhere to live. The owner of the Victoria Hotel at North Melbourne gave you work and somewhere to live, and when he closed the hotel for renovation he gave you accommodation at a backpacker’s hostel at Carlisle Street, St Kilda, where you have lived since June.
20At the time of your plea hearing, on 16 August, you had work pick packing, which you had found online, and, with a furniture removalist, which you had obtained through the hostel. At that time, I said to consider all sentencing options, including a combination sentence of imprisonment and a community correction order, I would have you assessed for your suitability for a community correction order. I made it clear, on the return date, I intended to remand you in custody in the expectation that I would impose either a term of imprisonment or a combination sentence which would require you to serve additional time in custody.
21To your credit, in the face of that warning, you attended for your community correction assessment on 20 August, and were found suitable, and you also answered your bail to appear before me on 21 August.
22On reflection, and taking into account your positive community corrections assessment, on 21 August, I told you I would consider releasing you on a sentence which combined a term of imprisonment equivalent to the time you had already served with a lengthy community correction order. I reached that tentative conclusion because there are significant mitigating factors in your case. They are: your early plea of guilty; your relative youth (you were only 21 years old at the time of the offending); your limited criminal history; that your remand following your arrest was your first time in custody; and that you face the prospect of deportation.
23Additionally, and importantly, you have taken big steps to advance your rehabilitation without the support of your family, who are in South Australia, or your partner, from whom you are estranged, by finding and maintaining stable accommodation and regular employment while obliging your strict bail conditions.
24I have also considered that, while any instance of home invasion is inherently serious, demonstrated by the maximum penalty of 25 years' imprisonment, you played a limited role. You had no involvement when the co-offenders used kitchen knives to wake and threaten the victim; the victim saw you only pick up some items from the house and then leave with the others; and in relation to the role you played there is a high likelihood that your extreme intoxication impaired your thinking.
25I have also taken into account that your progress in rehabilitation will be compromised if you were to be reincarcerated.
26So I decided to defer sentencing until today to give you the opportunity to demonstrate you could continue to maintain your stable accommodation and keep yourself in regular employment while complying with your restrictive bail conditions, and I indicated if I received evidence you had achieved those three things, I would, subject to hearing further submissions from the prosecution and defence, impose a sentence of imprisonment of 56 days, which you have already served by way of pre-sentence detention, and a community correction order.
27I have this morning heard evidence that you continue to reside at the Carlisle Street hostel, that you have recently obtained labouring work with a company known as CDH Commercial. Your new boss, John Rodgers, has said when he was at your hostel, you asked him for work, and he took you on. You have worked six days a week for him at a commercial project at Bentleigh East. He described you as a very good worker, polite and reliable. He picks you up and takes you to work each day. He said he will keep you on as long as there is work available.
28I also heard that there have been no reports of non-compliance with your bail and you have not been charged with any further offending.
29With that evidence, I am satisfied, in your case, the purposes of sentencing, including just punishment and your rehabilitation, can be best met by the imposition of a term of imprisonment equivalent to the time you have served and a community correction order.
30On the charge of home invasion and two charges of theft, you are convicted and sentenced to a term of imprisonment of 56 days, in combination with a community correction order which is to commence today. Taking into account that you have obliged strict bail conditions, which have significantly inhibited your freedom since April last year, I have moderated the length of the community correction order I would otherwise impose.
31The duration of the community correction order will be two years. In addition to the core conditions, I impose the following special conditions: assessment and, if necessary, treatment for your alcohol problem; supervision, and judicial monitoring. For that purpose, you will be required to appear before me in this court on 16 March 2020 at 9.30 am, when I will receive a report as to your progress on the community correction order.
32I have not imposed a community work condition because I have heard evidence that you are currently working six days a week.
33I make an order for disposal of the items seized by police in the terms of the order that have been filed.
34All In relation to Charge 2, theft of the motorcar, ordinarily, under the Sentencing Act I would be required to cancel any driver licences or permits held by you and make an order for disqualifying you from obtaining any driver licences or permits, but given the very high likelihood that you had no active involvement in the theft of the car or the driving of it and that your only role was that you were likely a very drunken passenger, I make no order in respect of any drivers licences or permits you may hold.
35Because you have pleaded guilty, as the law requires, I have imposed a less severe sentence upon you. Doing the best I can to declare a notional sentence, but for your plea of guilty, I would have imposed a sentence of 12 months' imprisonment in combination with a community correction order of two years and six months.
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