Director of Public Prosecutions v Laula

[2021] VCC 792

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00124

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOSES LAULA

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2021
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Laula
MEDIUM NEUTRAL CITATION:	[2021] VCC 792

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  guilty plea, home invasion, theft of a motor vehicle, theft,   commit offence whilst on bail, youthful offender, failing to   comply with a direction of the Chief Health Officer, co-  offender, general deterrence, good prospects of   rehabilitation, category 2 offence, COVID-19

Legislation Cited: s.6AAA of the Sentencing Act 1991

Cases Cited:   DPP v O'Brien [2019] citing Hogarth [2012] 37 VR 658,

Sentence:  26 months’ Youth Justice Centre

s6AAA declaration: 3 years and 2 months’ Youth Justice centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Farrell	Office of Public Prosecution
For the Accused	Mr L. Cameron	Stary Norton Lawyers

HIS HONOUR:

1Mr Laula, you pleaded guilty to one charge of home invasion for which the maximum penalty is 25 years' imprisonment; a charge of theft of a motor vehicle for which the maximum penalty is 10 years' imprisonment; another charge of theft relating to the keys for that motor vehicle for which the maximum penalty is 10 years.  You pleaded guilty to committing these offences whilst you were on bail; that is Summary Charge 20, the maximum is three months; and a summary charge of failing to comply with a direction of the Chief Health Officer in respect of COVID restrictions; that is Summary Charge 21 and that has a maximum of 120 penalty units.

2You were aged 18 at the time of the offending and you were living in Doveton.

3Your co-offender was aged 17 at the time of the offending.  He was 17 years and 11 months old; so, not far short of his 18th birthday and about two months younger than you.

4Your co-offender pleaded guilty in the Children's Court to this offending and other offending including additional offences that arose out of this incident, which are described in the summary.

5On 7 April 2021, he was sentenced for the home invasion to 16 months in a Youth Justice Centre and the various additional offences were dealt with, which meant that his total effective sentence came to 20 months in a Youth Justice Centre.

6The victims of the offending in this case were Tania Atkinson and her two children, Hamish, five years old, and Winta, six years old, who lived in Malmesbury Road, Cranbourne North.

7Relating to Summary Charge 20, you were on bail at the time of this offending from 17 July 2020 and you were due to appear at the Dandenong Magistrates' Court on 21 August 2020.  So, you committed Charges 1 to 3 on bail.

8On 16 March 2020, the state of emergency had been declared due to the COVID-19 pandemic and from August till September, Victoria was in Stage 4 restrictions. Everyone was required to stay at home outside of the stipulated exceptions.  Those with COVID-19 who were waiting test results were required to self-isolate unless in hospital.  At the time of these offences, you were COVID-19 positive.

9I will turn now to the summary of the offences which were set out in the prosecution opening which was tendered on the plea in this matter. 

10At about 10 past 10 am on 6 August 2020, you and your co-offender entered the backyard of the victim's address in Malmesbury Road, Cranbourne North.  This property was 17 kilometres from your Doveton address.  Both of you entered the rear of the property by climbing the side fence.  You both had on black hoodies and blue surgical masks.  You were outside of your respective homes for
non-essential reasons.  This is the basis of Summary Charge 21, failing to comply with the directions of the Chief Health Officer.

11Ms Atkinson was in the rear lounge with the children and she saw both of you walking into the yard.  She banged on the window in an attempt to scare you away.  You and your co-offender then started talking to each other.  Ms Atkinson briefly looked at her daughter when suddenly you or your
co-offender kicked the lounge window causing it to shatter.  I have read Ms Atkinson's statement and it seems to me it is much more likely that it was your co-offender because, as I understand her statement, your co-offender entered first, stepping through a shattered window onto the couch leaving a shoeprint and you followed him through the window.  So, I accept it was your co-offender who kicked the window.

12He then said to Ms Atkinson, 'Give me your phone'.  You stayed back; you did not say anything.  He approached Ms Atkinson and made a demand, 'Give me your car keys'.  He pushed her in the chest with his left hand and produced a kitchen knife in his right hand.  He threatened her saying, 'Give me your phone or I'll stab your kid', while looking at her six-year-old daughter.  Ms Atkinson replied, 'I don't have one'.  Again, your co-offender said to her, 'Give me your keys', and he continued to push her with one hand and with the other holding a knife up towards her.

13Both children witnessed the entire incident.  Ms Atkinson attempted to get closer to her children to shield them.  She told both of you that the keys were in the garage.  She walked you both to the garage and pointed out the keys.  As Ms Atkinson opened the roller door, you both took the keys and left in Ms Atkinson's vehicle, a black 2010 Holden Commodore station wagon, which had been parked in the driveway.  So that is the basis of the home invasion charge, which is Charge 1, and the theft of keys, which is Charge 2.

14You and your co-offender hopped into the car.  You sat in the passenger seat; your co-offender drove the car.  Then, the two of you left Ms Atkinson's residence in the car.

15She called 000 and reported the incident.  Senior Constable Jessica LaRocca attended with another police officer.  Ms Atkinson was shaking, crying and extremely frightened.  Other officers then arrived, and a statement was taken from her.  The two initial police left and patrolled the area, trying to locate the stolen vehicle.

16At about 10.45 am, Ms Atkinson's car was seen by the police Air Wing driving outbound at high speeds on the Princes Freeway.  Your co-offender was driving.  He pulled off onto the road in McGregor Road, Pakenham, and soon after turned around and back onto the Princes Freeway inbound.  He drove at about 180 kilometres per hour weaving through traffic narrowly, avoiding collisions with other vehicles.  Various police were following him, and I am not going to summarise the rest of the driving because you were not the driver and it was not your responsibility.

17In any case, ultimately, he had a collision then continued to drive for more than 100 metres before he lost control and collided with two parked vehicles.  This was all captured in the police Air Wing's CCTV and he faced charges in relation to this driving.

18As you got out of the car, you were bitten in the left arm by the police dog who subdued you until other police members arrived.  Once the dog released you, you were arrested by police and you were given medical attention by police until Ambulance Victoria members arrived and gave you treatment.  You had to be taken to The Alfred hospital for further treatment.

19On 10 August 2020, you were discharged from The Alfred hospital and taken to the Dandenong police station.  Police were told by your lawyer that you would be making a no-comment interview. You were then remanded into custody. 

20Your co-offender had fled from the driver seat dropping the kitchen knife that he used during the home invasion and his phone on the ground near the car.  He ran away from police, but he was eventually apprehended when police used a taser and brought him to the ground.  He was arrested and taken into custody.  He had injuries resulting from the collisions and the arrest. 

21The victim, Ms Atkinson, provided a victim impact statement which was tendered but not read at her request.  The offending had a very substantial impact on her.  She was terrified during this incident as were her children and she no longer feels safe in her home.  It has caused her anxiety and worry about keeping her children safe.  They are scared because of this incident.  The car you stole with your co-offender was irreplaceable to her and the effects on her generally have been substantial and enduring. In sentencing you, the effect on Ms Atkinson and her children is very important.

22As the prosecutor Ms Farrell set out in her submissions, in the case of DPP v O'Brien [2019] citing Hogarth [2012] 37 VR 658, the Court of Appeal accepted the description of home invasion from Hogarth as a

'particularly nasty form of criminal conduct.'

23Prior to the introduction of the home invasion offence, you would have been charged with aggravated burglary, which was the charged offence in Hogarth.  The court in O'Brien confirmed the importance of general deterrence in sentencing for home invasion.

24The maximum penalty for this offence is 25 years reflecting the seriousness of this offending.  It is also a Category 2 offence which means I must impose a sentence involving confinement in prison or a Youth Justice Centre unless the statutory exceptions are met.  In this case, no argument has been made nor could it be made that you meet any of those exceptions.

25Home invasions are terrifying for the victims as was the case here for Ms Atkinson and her children.  The prosecution put your state of mind at the time of entry as reckless as to whether the person was present although mens rea relating to the presence of a person is not an element of the offence.  I asked both counsel about this this morning and I accept that this was part of the resolution in this matter.

26In this case, the entry was in company with another offender, in my opinion, you were both disguised.  Given you had COVID-19 at the time and you were in breach of lockdown by being out, the wearing of a mask in order to comply with the health directions seems unlikely to me.  The entry was affected by kicking a window until it shattered which no doubt accentuated the fear Ms Atkinson and her children felt.  They were nearby when the entry took place.

27Your intention in this matter was to steal, in particular a motor vehicle, from the occupant of this residence.

28It is clear from the evidence that your co-offender played the major role and that you 'hung back' while the worst of his behaviour was occurring.  He kicked the window; he produced the knife without you being aware he had it; and he accosted Ms Atkinson inside the house.  He was the driver of the vehicle and he drove it in a dangerous way.

29However, you continued to participate in this offending in the house while all this was playing out right in front of you.  Your co-offender, as I said earlier, was aged 17 years and 11 months at the time of the offending, just two months younger than you and he received a sentence that I have earlier described in the Children's Court.

30Parity considerations in this matter are complicated due to your co-offender being sentenced in the Children's Court where general deterrence is not a sentencing consideration.  The focus in the Children's Court is, for good reason, on the rehabilitation of the offender.

31In my view, he was indeed fortunate that he was not 18 years old at the time he committed these offences.  He would have received a much longer sentence had he been dealt with in this court.  Nevertheless, I accept there is an overlap in both sentencing exercises and in your case, there is a focus on rehabilitation due to your youth. You and your co-offender are extremely close in age.

32Strict parity does not apply because of the different sentencing considerations, but the sentence imposed on your co-offender is a relevant matter to be considered in sentencing you and I take it into account.

33On your plea, various documents were tendered: a psychological report from Dr Guy Coffey dated 20 May 2021; a supervised bail progress report; a letter from Emma Nelson dated 25 May 2021; as well as Mr Cameron's written submissions in the matter and his chronology, both of which were extremely helpful.

34In relation to your background, you were born in Cairo, Egypt on 7 July 2002.  Your parents fled to Egypt from South Sudan because of the civil war.  You have an older brother and three younger siblings, one of whom has Down Syndrome.  Your family migrated to Australia when you were three years old and settled in Noble Park.  You had acquired English by the time you commenced primary school at St Anthony's in Noble Park in 2009.  You progressed well at school, had no conflict with other students or teachers, made friends easily and enjoyed sport.  You were an average student but there were no development issues or behavioural problems at that stage.

35Your family life was initially happy after you came to Australia.  However, in 2014, your parents had begun to fight and eventually separated.  You indicate your father was violent towards your mother which was a matter of concern to you and your siblings.  In the end, your father had an intervention order placed against him.

36You went to secondary school at St John's Regional College in Dandenong from 2015.  You completed Years 7 and 8 without any problem, however, in Year 9, which was 2017, your problems began.  Your school attendance began to decline, and you started using cannabis with your friends.  Around that time, your older brother also got in trouble with the police and they came to your family home to arrest him, although apparently, he was not in the end charged.

37In 2018, your school performance further declined, and you were
well-entrenched in a negative peer group using cannabis and drinking on a regular basis.  In 2019, you went to school for about five days in the first term.  At that time, you were using alcohol and cannabis nearly every day and you became disengaged from your family and were associating with this negative peer group.

38At that point, you were dealt with by way of a diversion for an assault and you engaged with Youth Justice and the Youth Support and Advocacy Service, YSAS, and you had counselling for your substance abuse.

39Turning to 2020, you were using cannabis and alcohol daily; and you were also using Xanax as well; and cocaine and MDMA recreationally on the weekends.

40The COVID-19 health measures reduced the contact you had with Youth Justice apparently, and it was in this context you committed the offences.  I accept that background.

41After this offending, you were remanded in custody for about three months.  You had treatment for the injuries that resulted from being bitten by the dog when you were arrested, and you were in hospital for four days.  It was there you were found to be COVID-19 positive which led to a period of 14 days in isolation.  You experienced some psychotic-like symptoms at that time seemingly related to your COVID-19 infections, substance withdrawal and isolation.  These symptoms had largely resolved by late August, early September 2020.

42You were released on bail for these matters on 16 November 2020.  You lived with your mother and you re-engaged with Youth Justice and YSAS and attended counselling with an organisation called Foundation House.  However, these arrangements did not last, and you recommenced using cannabis and drinking and you fell back in with your negative peer group.

43Against this background, it is alleged you have been involved in further offending and you were remanded for that offending and your bail was revoked for these matters on 12 March 2021.  During your most recent remand, you again have experienced isolation.  You have had contact with your
mother-in-law and recently your father, but only remotely until recently.

44You have recovered from your arm injuries and you have been able to engage effectively in prison activities.  You are enrolled in a maths and an IT course and you have converted to Islam from the period of your initial remand.

45Several factors in mitigation were put on your behalf by Mr Cameron.  Firstly, your plea of guilty was entered at an early opportunity.  The matter resolved at the committal hearing prior to the cross-examination of any witnesses following negotiations.  It is apparent from the charge that it is a negotiated outcome and so I give you considerable credit to the early stage at which you entered your plea.

46I give you credit for the utilitarian value of your plea; you have spared the witnesses the experience of giving evidence, a potentially traumatic experience, particularly for Ms Atkinson who would have had to relive these events.  The utilitarian value of the plea is heightened by the impact of the COVID-19 pandemic on the criminal justice system and the operation of this court.  I accept your plea is an indication of remorse and a willingness to facilitate the course of justice.

47It is submitted by Mr Cameron, and I accept, that I should also take into account what you said to the psychologist, Mr Coffey, who assessed you about this matter which was, 'anything can happen in such a situation'; and in relation to the effect on Ms Atkinson and her children, 'I wouldn't want that to happen to my family'.

48It was submitted by Mr Cameron that this demonstrates genuine remorse for the offending and developing insight and I accept this in part.  However, I must balance this against the fact that your bail fell apart and you started using drugs again which put you at risk of further offending.  To demonstrate meaningful insight, you will need to sustain your efforts of changing your behaviour.

49I accept that the injury to your left arm from being bitten by the dog which required surgery has resulted in ongoing pain and weakness and it had affected your ability to engage in various activities on remand.  So, I accept this injury added to the burden of your imprisonment and I take it into account as a form of extra curial punishment.

50I accept also you have been on remand during a period when the COVID-19 restrictions were in place which has added to the burden of your imprisonment as well.  Significantly in your favour is that you do not have any criminal record; though in 2019, you did receive the diversion that I referred to earlier, for an assault.

51I do note that you were on bail at the time and that is the subject of a specific offence but that is an aggravating feature in relation to Charges 1 to 3.

52You have pending matters currently before the Children's Court apparently and the Magistrates' Court, but these matters are contested, although some may resolve.  It was submitted by Mr Cameron and I accept that these pending matters are not to be taken into account in the sentencing.

53Mr Cameron, in his submissions, relied heavily on the principles relating to youthful offenders.  I accept these principles are significant in this case.  You are just 18 and you have no prior convictions.  Rehabilitation must assume considerable importance in the sentencing in this case and the weight to be given to general deterrence is reduced.

54Ms Farrell agreed that these principles had significant relevance but argued general deterrence remained important given the nature of the offending.

55I think both submissions are correct.  I must regard rehabilitation as extremely important, but it needs to be balanced against the seriousness of the offending and the significance of general deterrence.

56It was submitted by Mr Cameron that you have good prospects for rehabilitation and that the offending is explained but not excused by your decline, from the age of 14, towards a negative peer group and drug use. He relied on various passages in Mr Coffey's report in relation to this.

57Mr Cameron relied on aspects of your background, being the exposure to family violence and the effect that that had on you.  He submitted that the fact that you have no mental illness is positive towards your rehabilitation and your previous meaningful engagement with Youth Justice and YSAS support a positive assessment of your prospects of rehabilitation.

58Additionally, it seems to me, these matters are bolstered by the contents of the pre-sentence report from Youth Justice that I ordered in relation to your suitability for a Youth Justice Centre order largely written by Ms Dinsmore who has been your Youth Justice worker over some time.

59I accept you have strong family support, in particular from your mother, and that will be a benefit to you when you are ultimately released in this matter.  In the end, I do accept that you have positive prospects of rehabilitation.  Obviously, it will all hinge on your ability to stay away from the negative peer group and stop using drugs, but it seems to me likely that you do have that capacity.

60Because of your age, 18 years old, Mr Cameron submitted that I should impose a Youth Justice Centre order and to that end I ordered an assessment report to see if you were suitable and you met the statutory criteria for a Youth Justice Centre order, the first of which is that there are reasonable prospects for the rehabilitation of the young offender. At page 4 of the report, Ms Dinsmore has set out the factors that she regards as significant in assessing your prospects of rehabilitation, many of which mirror the submissions of Mr Cameron.  Secondly, the statute requires that the young offender be particularly impressionable, immature or likely to be the subject of undesirable influences in adult prison.  Ms Dinsmore writes that your age would render you vulnerable and impressionable in adult custody; and that you have a proven capacity to engage with Youth Justice; and you have a desire to continue to receive support from Youth Justice and a willingness to engage in interventions.

61Mr Laula, as I said earlier, this is a Category 2 offence, so unless you fit within various criteria within the Sentencing Act, there is no choice in this matter but to impose a sentence of imprisonment or a period of Youth Justice.  Additionally, the seriousness of the matter dictates some period of confinement; but having regard to your lack of prior convictions, your age, all of the submissions that Mr Cameron has made on your behalf and the matters contained within the documents tendered including the Youth Justice Centre report, I have no doubt that a Youth Justice Centre order is the appropriate order for me to make.

62Just finally before I turn to sentence, I have also had regard to the comparative sentencing cases Mr Cameron referred to and the statistics referred to in his sentencing submissions.

63I will turn now to the sentences that I intend to impose in this case.

64In relation to the sentence for Charge 1, home invasion, you are convicted and sentenced to 24 months in a Youth Justice Centre.

65In relation to Charge 2, the theft of the keys, you are convicted and sentenced to three months' Youth Justice Centre.

66In relation, Charge 3, the motor vehicle theft, you are convicted and sentenced to six months' Youth Justice Centre.

67In relation to failing to comply with the health direction, Summary Offence 21, you are convicted and fined $100.

68In relation to the commission of the indictable offence on bail, that is Summary Offence 20, you are convicted and discharged because I have taken that matter into account as an aggravating feature of Charges 1 to 3.

69I will order that two months of the sentence on the motor vehicle theft, Charge 3, is cumulative on the sentence for Charge 1 the home invasion, which makes a total effective sentence of 26 months' Youth Justice Centre.

70So you understand, it is not this court's role to fix a non-parole period in relation to that sentence.  That is done by the Youth Parole Board, Mr Laula, and Mr Cameron will no doubt give you advice in relation to that matter.

71If you hold any licence, it is cancelled, and you are disqualified from obtaining a driver's licence for a period of six months.

72In respect of pre-sentence detention, 163 days?  Can I just check that?

73MS FARRELL:  Yes, Your Honour.

74HIS HONOUR:  Yes.

75MR CAMERON:  That is agreed, Your Honour.

76HIS HONOUR:  A period of 163 days pre-sentence detention will be deducted from the sentence that I have imposed as having already been served.  So that comes off the sentence, Mr Laula.

77In addition, I indicate that but for your plea of guilty, I would have imposed a sentence of three years and two months' Youth Justice Centre in this case.

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