Director of Public Prosecutions v Krishna

[2025] VCC 48

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00918

DIRECTOR OF PUBLIC PROSECUTIONS

v

AJAY KRISHNA

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2025
DATE OF SENTENCE:	31 January 2025
CASE MAY BE CITED AS:	DPP v Krishna
MEDIUM NEUTRAL CITATION:	[2025] VCC 48

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing

Catchwords:              home invasion – false imprisonment – plea of guilty – totality – good prospects of rehabilitation – Bugmy

Legislation Cited: ss 5(1), 6AAA, s.14 Sentencing Act1991 (Vic)

Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102; DPP v Morin [2024] VCC 675; Director of Public Prosecutions v Bowen [2021] VSCA 355; R v Rich (No 2) [2008] VSC 141.

Sentence:Total effective term of 17 months’ imprisonment. Global term of 4 years and 5 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Office of Public Prosecutions
For the Accused	Mr J. Hofman	Hofman Carroll Criminal Law

HER HONOUR:

1Ajay Krishna, you have pleaded guilty to one charge of home invasion and one charge of false imprisonment.

2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A (as adopted from the sentence indication hearing). This constitutes the factual basis upon which I sentence you.  

Circumstances of the offending

3You and your co-accused, Wais Ahmadi, were known to each other through mutual associates. 

4The victim, Isaac Santos,[1] is a 14 year old male who at the time of the offence was living at his family home with his parents in Alma Road, Hampton Park. He and his family did not know either you or your co-accused.

[1] A pseudonym.

5At around lunch time on 19 December 2022 Isaac Santos was at home by himself. CCTV shows Mr Ahmadi attend the address in a white Toyota C-HR 4 door hatch back.  He can be seen getting out of the car, and climbing over the north gate to the premises.  Mr Ahmadi spoke to Isaac at the front of the house.  Mr Ahmadi claimed to be looking for a lost puppy and asked Isaac to go and look in his backyard for it. CCTV shows Mr Ahmadi then leave by climbing over the same gate again. He then got into the car and drove off.  Isaac then phoned his father Fraser Santos[2] and told him what had happened. The prosecution do not allege that you were involved in this first attendance.

[2] A pseudonym.

6Sometime between approximately 1:00PM and 1:30PM, Mr Ahmadi returned to the Alma Road address in the same car.  You were with him in the car, along with another person who has not been positively identified. You can be seen on CCTV wearing a fairly large dark backpack which appeared full.   Equipment including a yellow object can also be seen attached to your person. The backpack contained the power tools that would be used to attempt to break into the Santos’ household safe.  You can also be seen to be wearing gloves.

7Both you and Mr Ahmadi climbed over the gate at the northern end of the front fence.  Mr Ahmadi opened the unlocked front door of the house and entered.  You entered the house through the front door approximately a minute and a half after Mr Ahmadi.  The third person remained inside the Toyota.

8The prosecution do not allege that you knew Isaac Santos would be in the house at the time of the home invasion, but rather that you were reckless as to whether anyone would be present.

9Isaac was in his house standing in his hallway near to the entrance of his living room and he told Mr Ahmadi to leave.

Charge 1 - Home Invasion

10Mr Ahmadi grabbed Isaac’s phone and switched if off.  He gripped Isaac’s elbow and took him into the master bedroom and instructed him to sit on his parents' bed. 

11You attempted to break into the safe located in the walk-in wardrobe of the master bedroom.  You used an angle grinder from your backpack.  Isaac saw sparks as this was done and scuff marks were left on the front of the safe near the top left hand corner.

12Mr Ahmadi continued to watch Isaac who remained sitting on the bed as instructed.  Isaac was afraid and he remembers his whole body shaking.  In your case, the false imprisonment is alleged against you only on the basis of complicity.

13At one stage Isaac tried to grab his phone back but Mr Ahmadi saw this and snatched the phone, throwing it out of his reach. Upon seeing his father return home through the bedroom window, Isaac ran out of the room and got as far as the front door of the house.  One of you chased him to the front door.  He managed to open it but the door was slammed shut on his hand.  His hand suffered some injury, including bruising and abrasions.  The prosecution do not allege which of you chased Isaac to the front door and do not allege that you were complicit in causing injury to his hand. 

14Isaac was able to remove his hand from the front door and ran to the kitchen at the back of the house. As depicted on CCTV footage, Isaac emerged into the front yard, screaming and his father contacted the police.  You ran out of the front door and ended up placing a large piece of equipment into the boot of the Toyota.  You then appeared to retrieve something from the front passenger seat.  You ended up re-entering the house by the front door.  You then ran out from the side passage to the north side of the house, got into the Toyota’s front passenger seat, which drove away.

15Based on the account of witnesses it is believed that Mr Ahmadi climbed over the neighbouring fence to get away.  

16Police arrived at the address within a few minutes of being called.

17On 19 December 2022, Isaac provided his account in the form of Video and Audio Recorded Evidence (a VARE) to police.

18The police investigation is detailed at paragraphs [62]-[85] of the prosecution opening and includes the interrogation of CCTV video and audio footage, mobile telephones and a forensic examination of the scene.  A duffle bag containing various items and tools was left in the walk-in wardrobe in the master bedroom at the Alma Road address.  On 21 February 2023 a DNA sample was taken from you which matched areas sampled from the bag and items within it.  On the same day you were arrested and interviewed.  You participated in a record of interview and denied an involvement in the offending.  Your answers in the interview are summarised at paragraphs [86] to [116] of the opening.

Gravity of offending

19In formulating the appropriate sentence to be imposed I must have regard to the gravity of your offending and also the maximum available penalties.

20The charges of home invasion and false imprisonment are inherently serious.  Also, pursuant to s.5(2H) home invasion is a category 2 offence, effectively mandating a term of imprisonment.

21I regard the offending therefore as serious.  Also, you acted in company, there was clearly an element of pre-planning and your offending involved a young victim who was only 14 years of age at the time and who was plainly fearful and scared. 

22However, in weighing up all considerations I do accept your Counsel’s submission that your case falls more towards the lower end of objective seriousness.  In respect of the home invasion, you attended in the middle of the afternoon, there were no weapons involved and you entered the house through an unlocked door. The offending overall was of a relatively short duration, no items were taken or stolen and you did not use any physical violence or threats. On the evidence, I accept that your co-accused played a more prominent role in the offending.  I also take into account that while you are equally culpable for the false imprisonment, the case against you is put on a complicity basis. 

Plea of guilty

23Your plea of guilty follows a recent sentence indication on 27 November 2024.  While not an early plea it still entitles you to an important sentencing discount.  Your plea is of utilitarian benefit and it demonstrate a willingness on your part to facilitate the course of justice.

24Your Counsel submits that the prosecution case was not a particularly strong one, with triable issues relating to your identity, presence and involvement in the offending.  In broad terms, the case is a circumstantial one and the different circumstances relied upon are weak. He submits, the text messages are few and lack any specificity or detail linking you to the offending; the DNA is found on transportable items, which can be accounted for by an innocent explanation; the phone data/records do not provide for precise locations; and the CCTV footage is incapable of establishing identity.  While I do not regard the case as inherently weak, I accept that there were triable issues, as identified by your Counsel.  I have taken this into account in informing my assessment of your acceptance of responsibility and willingness to facilitate the course of justice[3] . 

[3] Phillips v The Queen [2012] VSCA 140.

Personal circumstances

25Your personal circumstances were outlined by your Counsel and are canvassed in the report of consultant psychologist Mr Ian MacKinnon of 7 January 2025. 

26In summary, you are 38 years of age and were born and raised in Sydney.  You identify as being Māori.  You are the youngest of nine siblings. Your biological father left the family when you were only a baby and you were raised by a single mother.  From an early age you were exposed, through your mother and her boyfriends, to family violence and drug and alcohol abuse. You also experienced neglect and considerable instability. At the age of 10, you left the family home, and did not return, after a failed attempt to stop your mother’s boyfriend from assaulting her.

27After a period of homelessness, you were taken in by a family known to you who offered you some support. At the age of 15, you moved to live with your 18-year-old girlfriend in Sydney.  You were in a relationship for 12 years and had four children together, now aged between 22 and 16 years.  The first two children born were twin boys and tragically one of them died at 15 years of age after being stabbed in a school yard fight.  You last saw your remaining children in Sydney in 2019.  

28Your schooling was interrupted but ultimately you completed up to year 11.  At the age of 21 years you saved enough money to commence and complete an apprenticeship doing shopfitting and joinery. At 27 years of age you completed a diploma of building at TAFE NSW and achieved a builder’s license.  Over the years you have worked as a sub-contractor through NSW Housing Commission in the removal and installation of kitchens and fencing and warehouse work.  You were last employed from January to May 2022, when you were working as a shopfitter in Melbourne. 

29When you were 27 years of age you separated from your partner in the context of her infidelity.  Your mental health deteriorated and your drug use, which up until then had involved the recreational use of cannabis, escalated.  You were introduced to heroin and then methamphetamine, which quickly took over your life.  You have a relevant and extensive prior criminal history which I accept is related to your drug use over the years and funding your addiction. 

30A couple of years later, aged 29, you commenced a new relationship with Toni Collier who resides in NSW.  You have been together for nine years and have three children together, aged seven, six and four.  Your fourth child and the twin of your eldest son, passed away at the age of five from pneumonia. Your eldest has recently been diagnosed with high-functioning autism and asperges and receives an NDIS package. 

31You moved to Victoria with your family to be closer to other family supports and your children from your first relationship, who at that time had relocated here. Your mother is now aged 70 and has returned to her country of birth, New Zealand, and you maintain occasional contact with her.  You have little contact with your siblings.

32You have achieved periods of abstinence in the past and have undergone residential drug and alcohol treatment in Sydney and completed several prison Drug and Alcohol programs.  Approximately six months prior to your remand, and in the context of relationship problems, you relapsed into drug use.

33You have no history of mental health treatment although you report having suffered several suicidal and deliberate self-harming episodes throughout your adolescence and early adulthood (at [38]).  At the time of his assessment, Mr Mackinnon assessed as you as suffering from mixed depressive and anxiety disorder (‘MDAD’) and substance abuse disorder (at [57]).  He considers that identifiable contributors to your MDAD include your chronic neglect during your formative years, poor parental attachments, early exposure to violence and drugs, chronic grief related to the deaths of your two sons and your relationship difficulties and prolonged separation from your children (at [9]).  He considers that you were suffering from this condition at the time of the offending and that it made ‘significant contributions’ by degrading your ability to ‘apply good reasoning and sound judgement’ (at [18]).  He also considers that your ‘antisocial and criminal traits’ also made a significant contribution to the offending.  You reported injecting 0.1 to 0.2g of heroin daily at the time of the offences, along with cannabis.  Mr Mackinnon considers hat your ‘relatively low level of substance abuse suggest that your substance abuse disorder was not a major factor in your offending; rather your MDAD, with unresolved grief, made more significant contributions (at [20]).  Mr Mackinnon also suggests that a further ‘significant’ term of imprisonment’ may cause a deterioration in your health. 

34In all the circumstances I accept that your history was marred by considerable disadvantage, dysfunction and instability.  I accept that the Bugmy principles in the general sense have application and are relevant to an assessment of your moral culpability[4]. 

[4] Bugmy v The Queen [2013] HCA 37.

35I take into account the opinions of Mr Mackinnon and his diagnosis as relevant to your circumstances. Your Counsel does not rely on any Verdins principles[5].  As discussed at the plea hearing, I consider this sensible as the foundation for the opinions expressed is unclear.  Also, in terms of the offending itself there are other causative factors, including substance abuse and antisocial and criminal traits.

[5] R v Verdins [2007] VSCA 102.

Other mitigating factors

36Currently you are serving a sentence imposed by His Honour Magistrate Sonnett at the Melbourne Magistrates Court on 30 November 2023. On that day you pleaded guilty to a consolidation of 56 charges, including 27 charges of burglary, occurring between January and February 2023, therefore relatively proximate in time to the current offence (December 2022).  I indicate that I have read the reasons for sentence in that matter.

37You were sentenced to a total effective term of 46 months (3 years and 10 months imprisonment) with a non-parole period of 28 months (2 years and 4 months), with 290 days declared as pre-sentence detention.  Your earliest parole eligibility date is 12 June 2025 and your sentence ends on 13 December 2026. 

38On the current charges, as already noted you were interviewed on 21 February 2023, already in custody.  The file was first authorised on 14 December 2023, some 15 days after the finalisation of your Magistrates Court consolidation.  It was then listed for filing hearing in January 2024. 

39Your Counsel relies upon the delay in the process and also submits that given the circumstances totality looms large in your case. 

40As the higher Courts have stated, the principle of totality is, essentially, a principle of proportionality ... In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending[6].

[6] Director of Public Prosecutions v Bowen [2021] VSCA 355.

41I accept that the principle of totality is important in your case and, in arriving at an appropriate sentence, I have assessed the aggregate criminality involved in all of the offending.

Time in custody

42Further, your Counsel submits, and I take into account, some of the challenges that you have experienced in custody.  In July 2023 you contracted COVID and were isolated for nine days.  After the imposition of the Magistrates Court sentence you were moved to a minimum security facility.  You were apparently returned to mainstream at Fulham, pending sentence for this matter. Also, I accept that you experience some anguish and concern for your young children.  

Prospects of rehabilitation

43As already noted, you are currently at the Fulham Correctional Facility.  You have had no incidents whilst in custody.  You have worked in the kitchen since May 2023 and were promoted to main chef in September 2023, working five days a week.

44You are enrolled in Education courses which commenced once you were sentenced, as outlined by your Counsel.  You have also undertaken and completed a 55 hour drug and rehabilitation course (‘Wise Up’). 

45Your Counsel submits, and I accept, that should you remain abstinent from drug use, you have favourable prospects of rehabilitation.  To this extent I have had regard to your previous periods of stability in the community, your qualifications and employment history, your family supports and motivations and your recent efforts in custody. I also note that you are abstinent from drugs and have been receiving buprenorphine injections for the last 14 months. 

46In relation to risk of reoffending, Mr MacKinnon opines that you pose a moderate risk with offending more likely to occur when you are distressed and/or chronically engaged in illicit substance abuse. He recommends that you engage in ongoing psychological treatment and that your drug and alcohol treatment needs are assessed.   

Parity

47The parity principle requires that there be consistency in the sentences imposed upon co-offenders unless there are such differences in their roles in the offending or their personal circumstances that warrant disparity in their sentences. Ultimately, the court has an overarching duty to impose a just and appropriate sentence in accordance with orthodox principles. As the higher courts have stated, the process of sentencing is not a mechanical exercise in which relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced[7].

[7] DPP v Morin [2024] VCC 675; Djukic, at [75] Sikoulabout v The Queen [2018] VSCA 268; Clark v The Queen [2020] VSCA 125.

48On 22 September 2023 this Court sentenced Mr Ahmadi on both counts to a total effective sentence of 2 years and 2 months imprisonment, with a non-parole period of 15 months.  I consider there are factors in your case and that of your co-accused Mr Ahmadi that pull in different directions.  Ultimately I do accept your counsel’s submission that there is a basis for some differentiation between the two of you.  Mr Ahmadi entered a plea of guilty at an early stage, offered some cooperation, faced the risk of deportation and had a prior history though not as extensive as yours.  Weighing in your favour is the more limited role you played in the offending itself.  It’s not alleged that you were involved in the first attendance at the home or that you knew that the child would be present at the time and you were not as prominent or as active as your co-accused was in the offending. It is also not alleged that you spoke to or engaged with Isaac at any stage and the false imprisonment is put on the basis of complicity.   While Mr Ahmadi entered an early plea of guilty, there was a delay occasioned in your case and I accept, in all the circumstances, that your plea is also a valuable one.  Further, there are considerations of totality that are unique to your case.  

Sentencing purposes

49The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. 

50I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. Further, I take into account the applicable maximum penalties and the principles of proportionality and totality, as already canvassed.

51I take into account the general landscape for offending of this nature, which offer some guidance. I have taken into account the submissions made by both Counsel, at the sentence indication hearing and at the plea. 

52As conceded by your Counsel, the only appropriate sentence in this case is one of imprisonment. As I have already indicated, I have taken into account the principles of proportionality and totality. They will be reflected in the orders for cumulation/concurrency that are made. The orders also need to reflect the separate criminality and victims involved in this offending.    

Sentence

53Synthesising all relevant factors, you are convicted on each charge and sentenced as follows –

54On charge 1 you are convicted and sentenced to 15 months imprisonment.

55On charge 2 you are convicted and sentenced to 9 months imprisonment. 

56Charge 1 is the base sentence and I cumulate 2 months of the sentence imposed on Charge 2 on charge 1, totalling a total effective period of 17 months’ imprisonment. 

57I cumulate 7 months of this sentence on the sentence that you are currently undergoing.  In effective terms, this amounts to a global total term of 4 years and 5 months imprisonment. 

58I propose to set a new non-parole period on the sentence I have just imposed and therefore pursuant to s14 of the Sentencing Act I am required to set a new overall non-parole period in light of the global total effective sentence as between His Honour Magistrate Sonnet’s sentence and my order for cumulation.

59Your new overall non parole period is 2 years and 8 months, with the commencement date being the date of commencement of His Honour’s sentence, on 30 November 2023. In other words, my intention is to add 7 months to your total effective sentence and 4 months to your non-parole period. 

60On my understanding, s14 can either be achieved by backdating the new single non-parole I declare to the date of the original sentence – which is what I have done – or I can direct that it commences from today. I am cognisant of the views expressed by Brooking JA in R v Rich that ‘there should be uniformity of practice’ and that all new non parole periods should be made to commence on the date on which they are fixed[8]. I note however that this approach seems to have caused some problems in the manner in which the sentence calculation authorities in Corrections interpret the order.

[8] R v Rich (No 2) [2008] VSC 141.

61If my orders do not have this effect, then the matter should return to me for any necessary corrections or clarifications. As I understand it, there is no need for me to make any s 18 declaration as to your pre-sentence detention as that previous declaration of His Honour Magistrate Sonnet remains effective.

62Pursuant to s 6AAA (and I note that this declaration is somewhat artificial given the operation of s14 in your case) but I indicate that but for your plea of guilty I would have imposed a total effective sentence of two years and 10 months imprisonment; with greater cumulation on the current sentence you are undergoing.