Director of Public Prosecutions v Kuan

[2024] VCC 160

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-01717

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUAL KUAN

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2022
DATE OF SENTENCE:	23 February 2024
CASE MAY BE CITED AS:	DPP v Kuan
MEDIUM NEUTRAL CITATION:	[2024] VCC 160

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Home invasion – Theft of motor vehicle – Robbery – Commit indictable offence whilst on bail – Contravention of conduct condition of bail – Unlicenced driving – Offending in company – Young offender – Relevant criminal history – Reasonable prospects of rehabilitation

Legislation Cited:      Crimes Act 1958 ss 74(1), 75, 77A; Bail Act 1977 ss 30, 30A; Road Safety Act 1986 s 18(1); Sentencing Act 1991 ss 5(2H), 6AAA, 18 32(2D), 89(4).

Cases Cited:Director of Public Prosecutions v Myers [2014] VSCA 314; Sikoulabout v The Queen [2018] VSCA 268; Director of Public Prosecutions v Weybury [2018] VSCA 120; Azzopardi v The Queen (2011) 35 VR 43.

Sentence:                  Imprisonment for a period of 3 years with a non parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Allan	Office of Public Prosecutions
For the Accused	Mr J Mildren	Orenstein Lawyers

HIS HONOUR:

Introduction

1Lual Kuan, you have pleaded guilty to:

(a) one charge of home invasion contrary to s 77A of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1);

(b) one charge of theft of a motor vehicle contrary to s 74(1) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2); and

(c) one charge of robbery contrary to s 75 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 3);

2You have also pleaded guilty to the following related summary offences:

(a) one charge of commit indictable offence whilst on bail contrary to s 30 of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 2);

(b) one charge of contravene a conduct condition of bail contrary to s 30A of the Bail Act, which carries a maximum penalty of 3 months imprisonment (Summary Charge 3); and

(c) one charge of unlicensed driving contrary to s 18(1) of the Road Safety Act 1986, which carries a maximum penalty of 6 months imprisonment (Summary Charge 8).

3You have also admitted your Criminal Record.

Circumstances of the offending

4At the time of the offending, you were 18 years old and living in Point Cook.

5There are two co-accused in this matter:

(a)   Eric Sears[1], who was 17 years old at the time; and

(b)   Chas Dieng[2], who was 16 years old at the time.

[1] A pseudonym.

[2] A pseudonym.

6At the time of the offending, you were on bail for other matters. This bail had been granted on 25 June 2023.

Incident 1 – 28 June 2023

7Nishay Dayal, the victim in this incident, resided at an address in Hoppers Crossing and was in the process of moving out.

8At about 12:30 a.m., a black 2009 Toyota Camry (‘Toyota Camry’) arrived outside the Hoppers Crossing address. You exited the vehicle in the company of three unknown co-offenders. The driver remained in the vehicle. You and the three co-offenders walked up to the front of the property.

9You had in your possession a golf club, whilst the unknown co-offenders had in their possession machetes and a crowbar.

10You and one of the co-offenders walked through an unlocked side gate, gaining access to the backyard. Meanwhile, the two other co-offenders approached the front porch and attempted to break in, damaging the front security door in the process. They were unable to gain access via the front door.

11You and the other co-offenders all gathered in the backyard. Your group located the back door, which was a large glass panelled sliding door. You smashed a large glass panel on the top section of the backdoor, causing it to smash and break open. This enabled you to enter the house, which you and your three co-offenders proceeded to do. The co-offenders were still carrying the machete and crowbar (Charge 1 – Home invasion).

12No person was present inside the Hoppers Crossing address at the time.

13At about 12:42 a.m., you and the co-offenders stole a Samsung Blu-Ray Player and a small HP laptop located in the main living room. You all then exited via the back door and returned to the Toyota Camry, leaving the area.

14The entire incident was captured on CCTV.

15At about 1:37 a.m., police attended the rear carpark of the Woodville Park shopping centre. They located the Toyota Camry in Warringa Crescent in Hoppers Crossing and conducted a search, locating and seizing the following:

(a)   one Fiskars crowbar (on the backseat);

(b)   one Kiwi brand knife (on the backseat);

(c)   one PlayStation 4 console (on the backseat);

(d)   one Apple MacBook Air (on the backseat); and

(e)   a small amount of green vegetable matter (on the backseat).

16The victim informed police of the offending at his address and at about 1:30 p.m., police attended the Hoppers Crossing address and photographed the scene.

17The Samsung Blu-Ray player and the small HP laptop were not valued as they were dated.

18At about 4:00 p.m., investigators obtained further CCTV from Bentley Crescent, Hoppers Crossing.

19CCTV from the Hoppers Crossing address and Bentley Crescent address depicts the Toyota Camry arriving at the Hoppers Crossing address and four offenders exiting the vehicle and approaching the front door. You are wearing a black jacket, dark tracksuit pants with white and black checkered boxer shorts and black Nike Air Max shoes. You are in possession of a golf club.

20A second male offender with light skin and a large build, wearing a Nike Tech fleece jacket, black surgical mask, tracksuit pants and Nike runners is in possession of a machete.

21A third male offender with light skin and thin build, wearing a white puffer jacket, light tracksuit pants and Nike runners is holding a crowbar.

22A fourth male offender with light skin and thin build, wearing a jacket, tracksuit pants and runners and is holding a machete.

23You are observed smashing the glass panel in the back door.

24The second male offender is shown as being in possession of the Samsung Blu-Ray player before leaving.

25On 30 June 2023, police accessed the Woodville Park shopping centre CCTV, which showed you pushing the Toyota Camry along Warringa Crescent. You are wearing the same clothing as at the Hoppers Crossing address. Your three co-offenders leave the Toyota Camry and walk to the rear carpark in possession of machetes. An unknown person enters the driver’s seat of the vehicle. You re-enter the front passenger seat before the vehicle is driven around the carpark of the shopping centre.

26At the time police were conducting the CCTV canvass, you, together with Mr Sears and some associates arrived at the Woodville Park shopping centre. you were wearing the same shoes and pants as you were shown wearing in the CCTV footage.

Incident 2 – 2 July 2023

27At about 2:43 p.m., Tylar Forsyth was riding his e-bike northbound on Shipwright Parade, Werribee. Mr Forsyth is the victim of the robbery in this incident.  

28A grey 2023 Mazda BT50 Utility (registration XLF235) (‘Mazda ute’) commenced chasing the victim. As he turned right into Larapinta Entrance, the Mazda ute overtook him and cut him off out the front of 6 Larapinta Entrance. The victim attempted to escape by going around the Mazda ute but was unsuccessful.  

29You exited the driver seat of the Mazda ute. You chased and subsequently grabbed the victim by his jacket, causing him to stall his e-bike.  

30You pushed the victim off his e-bike and grabbed a Louis Vuitton bag on his shoulder. You screamed at the victim to ‘get off the fucking bike’. You then got onto the e-bike whilst in possession of the Louis Vuitton bag.  

31Meanwhile, Mr Sears existed the Mazda ute from the front passenger side and Mr Dieng exited the rear driver side door. Mr Sears approached the victim whilst in possession of a large machete.

32You rode the e-bike down Overland Chase, Werribee, whilst your co-accused got back into the Mazda ute. They drove off, following you on the stolen e-bike. (Charge 3 – Robbery)

33The victim ran home and told his father, who immediately called ‘000’.

34The stolen e-bike was fixed with an electronic tag that contained GPS. Police received live updates of the GPS location of the e-bike which was in the vicinity of Wattle Avenue and Nantilla Crescent, Werribee.

35At about 3:25 p.m., Mr Sears was observed by police riding the stolen e-bike on Nantilla Crescent. Police conducted a U-turn to intercept, and by that stage Mr Sears was out of sight.

36Police were then flagged down by members of the public who informed them that Mr Sears had gotten out of a vehicle down the road.

37Police subsequently located the Mazda ute on the corner of Nantilla Crescent and Penn Close, Werribee.

38Police enquiries revealed that the registration plates ‘XLF235’ affixed to the Mazda ute were stolen from Melissa Vona. They were stolen between 3:00 p.m. on 2 July 2023 and 12:30 p.m. on 3 July 2023 from a stolen black 2009 Mazda CX7 at Ms Vona’s address in Hoppers Crossing.

39Further police enquires revealed the Mazda ute was stolen at about 4:20 p.m. on 2 July 2023 from an address in Hoppers Crossing. The keys to the Mazda ute were taken from inside the living room drawer, adjacent to victim Hussam Hallak while he was sleeping. (Charge 2 – Theft of Motor Vehicle)

40At about 3:30 p.m., police observed you riding the stolen e-bike southwards on Wattle Avenue, Werribee.

41Police activated their lights and sirens in an attempt to intercept you. You failed to stop and managed to evade police apprehension.

42At about 5:40 p.m., you arrived at Wattle Avenue, Werribee and spoke to witness David Ryan. You asked Mr Ryan to use his mobile phone as he needed to call a friend, because your e-bike was disabled. Mr Ryan offered to pick up the e-bike and drop you off somewhere. You asked to be taken to the Werribee Police Station as you had to report there by 6.00 p.m.. Mr Ryan drove you to the Werribee Police Station.  

43At about 5:52 p.m., you arrived at the Werribee Police Station and reported and signed in on your bail. This was captured on CCTV.

44Mr Ryan then drove you to the Werribee Plaza shopping centre.

45At about 7:15 p.m., police located and seized the stolen e-bike in the front yard at Wattle Avenue, Werribee.

Further investigation

46On 4 July 2023, investigators obtained CCTV footage from two premises at Larapinta Entrance, Werribee. CCTV from this location depicts you and your co-accused committing the robbery from Incident 2 on 2 July 2023.  

47A CCTV canvass of the Werribee area was conducted and revealed the following:

(a)   at 2:45 p.m., you are shown on the stolen e-bike in convoy with the Mazda ute and at 2:46 p.m. the Mazda ute drives with the boot open, with the stolen e-bike inside;

(b)   at 3.20 p.m., you are shown riding the stolen e-bike down Wattle Avenue in convoy with the Mazda ute, and at 3:22 p.m. Mr Dieng is shown riding the stolen e-bike; and  

(c)   at 5:40 p.m., you arrive at Wattle Avenue on the stolen e-bike and speak with Mr Ryan. You and Mr Ryan are then shown leaving in Mr Ryan’s vehicle.

48Investigators searched and photographed the Mazda ute and located and seized the following:

(a)   a machete knife in black sheath (driver seat near centre console);

(b)   a kitchen knife with black handle (passenger footwell);

(c)   a meat cleaver (passenger footwell);

(d)   a large thin bladed machete (passenger footwell);

(e)   a red devil face mask (passenger footwell); and

(f)    the Louis Vuitton bag belonging to Mr Forsyth.

49Mr Forsyth’s e-bike was valued at $2,818.

Arrest and interview

50At about 5:00 p.m. on 5 July 2023, you attended Werribee Police Station to sign in on bail where you were subsequently arrested. You were interviewed and elected to make a ‘no comment’ interview.

Nature and gravity of the offending

51Turning first to the home invasion.

52Home invasion is unequivocally an inherently serious offence as reflected in the maximum penalty of 25 years imprisonment. In this instance the home invasion is particularised on the basis of you entering the home as a trespasser with three co-offenders, each of you armed with offensive weapons.

53With consideration of the principles stated in Director of Public Prosecutions v Myers[3] and Sikoulabout v The Queen,[4]  in my view the following matters inform the seriousness of your offending in this instance:

·the offending involved a degree of planning;

·you were in company with three others;

·you and the others were armed;

·the offending occurred at night; and

·when you failed to gain entry via the front door causing damage, you attended at the back entering the home by smashing a glass panel in the back door.

[3] Director of Public Prosecutions v Myers [2014] VSCA 314.

[4] Sikoulabout v The Queen [2018] VSCA 268.

54Mr Mildren, who appeared on your behalf, highlighted the matters that in his submission place your offending at the lower end of home invasion of this type. He submitted that the intent was to steal rather than assault, and that there was no person present when you entered. While in certain circumstances an intent to steal can be just as serious if for example a person is present, here fortunately no person was present when you entered. I accept these matters are relevant is assessing the seriousness of your offending. Nonetheless, when a victim discovers that their home has been invaded by armed offenders damaging their home, and then stealing personal possessions, it can and often does strike fear in the victims.

55While it is often problematic labelling offences of this nature with terms such as  ‘mid range’ or ‘lower end’,[5] Ms Allan who appeared on behalf of the Director of Public Prosecutions, submitted that the offending is not at the lowest end, but neither could be described as towards the most serious example of this offence, also noting that your offending occurred while you were on bail elevating its seriousness.

[5] Director of Public Prosecutions v Weybury [2018] VSCA 120, [54].

56In my view the characterisation of the offending by the prosecution is accurate. Your offending remains serious for the reasons I have outlined above but is tempered by the fact that no person was present in the home at the time of entry.

57Turning to the robbery.

58Having viewed the CCTV of this incident, your conduct would have undoubtedly been a frightening experience for the young victim involved. The car you were driving turned quickly in front of the victim cutting him off and causing him to manoeuvre away from you. You then exited the car chased the victim, and screamed at him to get off the bike, ultimately taking his bike from him. While you are not charged with armed robbery, I note that your co offender exited the vehicle after you, approaching the victim while in possession of a large machete. As such he was charged with armed robbery. In all the circumstances in my view your offending on this occasion is also very serious and also committed while you were on bail.

Personal circumstances

59You were born in Sunshine in 2005 and have just turned 19 years old. You were 18 at the time of the offending. You are one of six siblings and are the second youngest child in your family. Your family fled South Sudan for Australia shortly before you were born in 2005. Your parents were forced to leave behind your two oldest siblings in the refugee camp who were finally able to migrate to Australia in 2013.  

60Two psychological reports were tendered on the plea. The most recent report was authored by general psychologist Austin Campbell and is dated 3 February 2024. The second report was authored by clinical psychologist Alison Mynard and is dated 15 October 2021. Together, these reports provide a compendious summary of your childhood and adolescent years which I have taken into account.

61Your childhood was punctuated by your family relocating a number of times to different suburbs in Melbourne’s west, which made it difficult for you to develop and maintain social relationships during this period. Mr Campbell observes that you may have started to develop maladaptive coping strategies around this time, to manage your feelings of distress. You disclosed to Mr Campbell that you were physically punished for inappropriate behaviour, which you referred to as ‘discipline’. As outlined in a Youth Justice pre-sentence report dated 21 December 2023, police were called to the family home in 2020 due an alleged family violence incident. They found you chained to a chair by your father in an attempt to prevent you leaving the family home to socialise with unknown friends. You had not suffered any visible injuries and were able to use the bathroom. Your parents reported to the police that they were concerned about you using drugs and committing offences, and were ‘unsure of how to stop [you] from leaving the house’. A report was made to Child Protection; no further interventions were taken at that time. You later admitted to Ms Mynard that being treated in this way had angered you, but you stated it was ‘one time’ and that ‘it’s in the past now’.

62You maintain you had a relatively normal upbringing and were ‘raised right’, in that you were taught to be confident in yourself and you generally felt loved and cared for throughout your formative years. Your family experienced financial hardship and both of your parents worked hard to support the family, with your older siblings assisting in caregiving duties. You are close with your younger sister, who underwent a heart transplant surgery last year. Your siblings are not involved with the criminal justice system.

63Your father left the family home in August 2020 and you believe that it was your increasingly problematic behaviours that caused your father to leave. At the time you were assessed by Mr Campbell, you had not had contact with your father for over seven months and expressed a desire to reconnect with him once you are released from custody.

64You attended Hoppers Crossing Secondary School but stopped attending in Year 10. You stated to Mr Campbell that you had ‘problems learning’ and struggled to pay attention in class but were never formally tested for or diagnosed with, any learning disorders. You were more recently enrolled in a plumbing course through Victoria University but had to withdraw due to being remanded for an extended period in 2023.

65You started drinking alcohol when you were around 13 years old, after being introduced to the substance by friends. You came to enjoy consuming alcohol because of its social aspects, and started drinking on a weekly basis until you left school, at which point your use escalated to almost daily consumption. You also started using cannabis at 14 years of age, and later started using Xanax and MDMA. You stated to Mr Campbell that you struggle to control your substance use whilst in the community and identified that most of your problems stem from your use of alcohol, especially in the context of associating with anti-social peers. You expressed a desire in your assessment with Mr Campbell to address your substance use issues, which you recognise as contributing to increased feelings of anxiety and stress and as negatively impacting upon your ability to obtain suitable employment and thrive in the community. You acknowledged that your inability to find suitable employment whilst in the community was driven also by feelings of apathy and hopelessness, which have been exacerbated by your younger sister’s significant health issues. These feelings overwhelmed you and contributed to you relapsing into alcohol and cannabis use, and reconnecting with anti-social peers. Your current distress has been augmented by the fact that you are now experiencing the adult correctional system for the first time and are struggling to adjust to this new environment. You also disclosed to Mr Campbell that you have developed associations in the prison environment in an attempt to feel safe, which places you at further risk of anti-social influence and attitudes.

66Mr Campbell concludes that you have difficulties with anxiety and substance use issues. Your self-reported levels of psychological distress indicate ‘mild levels of stress, moderate levels of depression and severe levels of anxiety’. Mr Campbell opines that your mental health and substance use issues are ‘perpetuated by [your] avoidant coping style and resulting maladaptive behaviours to avoid and reduce experiences of psychological distress’. In his view, such behaviours spur you to socialise with a negative peer group, which in turn further drives you to criminally offend.

67A reference from Moses Paul, a youth worker from the Centre for Multicultural Youth, was tendered on the plea. Mr Paul has worked with you since June 2020 following a reference by Youth Justice and has also visited you in prison in your current period of remand. He notes that the absence of a father figure in your family has negatively impacted on your life, as has your younger sister’s illness. Mr Paul confirms he will continue supporting you in your goal of becoming a plumber and engaging with you and your family.

Sentencing considerations

68I first take into account your plea of guilty. Your plea was entered at the committal mention stage making it a plea at the earliest opportunity. Your plea also has saved considerable court time and importantly, saved victims and other witnesses from having to give evidence.

69At 19 years of age, you are a young offender by definition. As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders, and that they do have application in your case, I must also weigh those considerations with the seriousness of the offending.

70In Azzopardi v The Queen,[6] having reviewed the established authorities in relation to young offenders, Redlich JA said:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment, and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effects of the offender's youth.  But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

[6] (2011) 35 VR 43, [44].

71In my view, while your prospects of rehabilitation do take prominence in the sentencing discretion, the other competing and relevant sentencing considerations such as general and specific deterrence, denunciation of your conduct and protection of the community must also carry weight in this instance in light of the seriousness of the offending and your relevant prior criminal history.

72Turning more specifically to your prospects of rehabilitation, it is plain on the reports tendered that you need to disassociate with negative  peers and address your drug and alcohol problems. You have been given a number of opportunities via Childrens Court dispositions to engage in services to assist you with the issues you struggle with however as noted by Mr Campbell, you are still drawn to anti social associations and would benefit from support by mental health professionals to assist you in developing coping strategies without the need to form negative associations. That said, Mr Campbell is also of the view that your prospects of rehabilitation remain positive evidenced by your responsiveness to him during his assessment. It is also clear from the materials that you are developing insight as you mature and have expressed a desire to address factors that contribute to your offending. In my view if you positively engage in services that will be offered to you upon your release, your prospects of rehabilitation can be assessed as reasonable.

73Charge 1 is a category 2 offence and as such pursuant to s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’) the Court must impose a custodial order unless one of the statutory exceptions apply. Mr Mildren did not press any of the exceptions. Further, Charge 1 is a category B youth offence and as you have previously been convicted of another category B youth offence, pursuant to s 32(2D) the court must not make a Youth Justice Centre Order unless satisfied that exceptional circumstances exist. Mr Mildren submitted that your background circumstances including your refugee background and your difficult relationship with your father, are matters together with other personal circumstances that could, in combination, amount to exceptional circumstances. Ms Allan submitted that those matters, while relevant and should be taken into account in the sentencing discretion, are not out of the ordinary. Further, that the expert reports do not identify any specific hardships though your childhood which you described as ‘normal’ to Mr Campbell and Ms Mynard. In my view while I accept that you have suffered some hardships as a child of a refugee family and that you were subject to some harsh discipline in your formative years, exceptional circumstances have not been established.

74In the circumstances, as exceptional circumstances have not been established, a Youth Justice Centre Order is not open to you. Nonetheless, despite that position, the prosecution submitted that given the gravity of your offending, the fact that you were on bail and your relevant criminal history, a head sentence and non parole period is the only appropriate sentence.

75In my view in the circumstances a head sentence with a non parole period is the only available sentencing disposition. However, given your age and the fact that you have expressed a desire to address factors that contribute to you offending, in my view a longer non parole period will provide you with an opportunity to continue your rehabilitation in the community while under a period of supervision.

Sentence

76Mr Kuan, would you please stand.

77Lual Kuan, on Charge 1, home invasion, you are convicted and sentenced to 2 years and 9 months imprisonment. On Charge 2, theft you are convicted and sentenced to 3 months imprisonment. On Charge 3 robbery you are convicted and sentenced to 12 months imprisonment.

78On Summary Charge 2, commit indictable offence while on bail, Summary Charge 3, contravene conduct condition of bail and Summary Charge 8 unlicenced driving, you are convicted and sentenced to 1 month imprisonment on each charge.

79I direct that 3 months of the sentence on Charge 3 be served cumulatively on the sentence imposed on Charge 1 making for a total effective sentence of 3 years imprisonment. I direct that you serve 18 months before becoming eligible for parole.

80Pursuant to s 18 of the Sentencing Act, I declare that 126 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

81Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years and 6 months with a non parole period of 3 years.

82In relation to Charge 2, pursuant to s 89(4) of the Sentencing Act any licence you hold is cancelled and you will be disqualified from applying for a further license for a period of 12 months.