Director of Public Prosecutions v Leime

[2017] VCC 1270

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02238

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW LEIME

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2017
DATE OF SENTENCE:	5 September 2017
CASE MAY BE CITED AS:	DPP v Leime
MEDIUM NEUTRAL CITATION:	[2017] VCC 1270

REASONS FOR SENTENCE
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Subject:   Aggravated burglary (5 charges),
  theft, attempted armed robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Five years' imprisonment with a two and a half year
  non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill
For the Accused	Ms N. Karapanagiotidis

HIS HONOUR: 

1Andrew Leime, you have pleaded guilty to five charges of aggravated burglary.  The maximum sentence for the crime of aggravated burglary is 25 years' imprisonment.  You have also pleaded guilty to four charges of theft, for which the maximum sentence for each charge is ten years' imprisonment.  In addition you have pleaded guilty to two charges of attempted armed robbery.  The maximum sentence for this offence is 20 years' imprisonment.  You also pleaded guilty to one charge of false imprisonment, for which the maximum penalty is ten years imprisonment', and one charge of resisting an emergency worker on duty, for which the maximum penalty is five years' imprisonment.  The charges are contained in an indictment numbered G12558526.

2At the time of your plea, you also pleaded guilty to one summary charge of unlawful assault and consented to that charge being dealt with by me.  The maximum sentence for this summary offence is three months' imprisonment.

3All of the offending that you have pleaded guilty to occurred in the early hours of the morning on 16 September 2016.  The circumstances of your offending are contained in a summary that was prepared and tendered by the prosecution, which I marked as Exhibit A.  That document was read in open court by the prosecutor, Ms Hamill, and your counsel, Ms Karapanagiotidis, accepted the summary was accurate and forms a proper basis upon which
I can pass sentence upon you.

4It is not necessary that I refer in detail to that which is contained in the summary, except in an abbreviated way.  These sentencing remarks need to be read in conjunction with what is set out in full in the prosecution summary.

5Between about 2.30 am and 5.15 am on 16 September 2016, you entered five separate residences in Lyndhurst.  On three occasions, by breaking your way into houses.  The residences were in close proximity with each other.  Each was occupied, the occupants being in the process of sleeping in the sanctity of their own home, as would only be expected.  From some of the homes you stole money and other objects.  In some of the homes where the occupants were aware of your presence, you instilled fear into the occupants.

6Police were alerted to your crime spree and converged on  the area.  For
a while you managed to evade them, but they eventually captured and subdued you.  You were subsequently interviewed, but generally denied offending, blaming it on others unidentified.

7Your offending is very serious, involving as it does, entering the sanctity of people’s homes in the middle of the night whilst they slept.  In three of the incidents you used force to enter the home.  In the other two, you entered through an unlocked door.  It matters not, people should be entitled to leave their door unlocked.  You knew that the homes were occupied at the time of your crimes.

8You have remained in custody since your arrest on 16 September 2016, and as at the time of the plea hearing, you had served 335 days pre-sentence detention.

9I admitted into evidence three victim impact statements.  Exhibits B & C were victim impact statements related to the victims, in what is referred to as
Incident 1 in the summary.  Both have suffered psychologically, suffering from post-traumatic stress disorder as a result of the trauma and fear instilled by your conduct on entering their home in the dead of night.

10You were immediately charged with these offences, which resolved into a plea at committal mention.  That is to your credit.  For the purposes of sentencing, you are to be treated as having indicated that you would plead guilty at the earliest opportunity.   Importantly, by your pleas of guilty, you have saved the time and costs of at least one, possibly more, trials.  By pleading guilty, you have saved a number of the occupants of the houses from the need to have to come to court and give evidence against you and be cross-examined by your counsel.  Because you have pleaded guilty at an early time, you are entitled to and will receive a reduction in sentence and this will be reflected in the sentence that I will shortly pass.

11I also treat your pleas of guilty as an indication of your genuine remorse for what you have done.

12When you pleaded guilty, you admitted a number of prior convictions for similar offending from five previous appearances in the Children’s Court.

13On 5 August 2016, you had appeared in the Children’s Court at Dandenong, where you were dealt with for various offences, including aggravated burglary and committing an indictable offence whilst on bail.  Without conviction, you were released on a youth supervision order for a period of 12 months.  This offending occurred whilst you were subject to that order.

14On 1 April 2015, you were convicted in the Melbourne Children’s Court of intentionally causing injury.  You were detained in a Youth Justice Centre for one month.

15On the 19 September 2014, you were dealt with at the Dandenong Children’s Court on charges of aggravated burglary, in circumstances where you were armed with an offensive weapon, intentionally causing serious injury, intentionally damaging property, recklessly causing injury and other acts of dishonesty and breaching a youth attendance order.  You received, in effect,
a total effective sentence of 18 months detention in a Youth Justice Centre.

16You are young and call to be sentenced as a young offender.  You were born on the 24 August 1998.  You were aged 18 at the time of this offending and you have just turned 19 years of age.

17Ms Karapanagiotidis filed a helpful outline of submissions in writing, which
I marked as Exhibit 1.  She also tendered a lengthy psychological report received from Guy Coffey in relation to you, dated 12 August 2017.  She relied upon the contents of that report as setting out a lot of history relating to your background circumstances.  Further, since the hearing of the plea, I received
a letter from your parents on your behalf, dated 17 August 2017, which I shall mark as Exhibit 4.  Your parents could not get to the plea hearing on time and wanted me to know that they love and support you.  I accept that as the fact. 
I also received into evidence as Exhibit 3, the Youth Justice Progress Reports in relation to you, prepared in August and November 2016.  In passing sentence, I have had full regard to the contents of all of these documents tendered.

18Your counsel recognised and conceded that your offending was serious and called for detention.  However, she submitted that for various reasons related to your background and upbringing and because of your young age, I should have you assessed to have any period of detention served in a Youth Justice Centre.  Alternatively, she submitted, I should provide for an early possible release date, so that the possible time you will serve in prison will be relatively short and you will be released subject to the supervision of the Adult Parole Board.  Your counsel relied upon your early pleas of guilty and your genuine remorse, which I, of course, have taken into account. 

19Ms Karapanagiotidis relied upon the fact that this offending was confined to one day.  That is true, but it follows upon other offending of a similar kind and in circumstances where you were subject to a youth supervision order.

20I turn to matters relating to your background history.

21You are one of seven children.  You were born in Kenya of Sudanese parents and spent your early childhood with your parents and siblings in a Kenyan refugee camp.  You came to Australia as a refugee with your family in 2007.  You were then aged nine years of age.  You and your siblings and parents became Australian citizens in 2012.

22Your recollections of the refugee camp in Kenya, is of it being a harsh environment and you witnessed acts of violence within the camp, including witnessing someone being beheaded when you were aged six.

23You attended primary school in Melbourne’s south east where you learned English.  Your progress academically is said to have been reasonable.  You were good at sport and had friends.  But you were involved in fights when you reacted to taunting of a racist kind.

24Your parents had two further children born in Australia.  In 2012, you had disciplinary problems at school.  You began to drink heavily and using cannabis.  Your father lectured you and dealt with you harshly to try to discipline you, but you reacted by spending time away from the family home and your school attendance dropped off.  You began to keep company of others of the same ethnic origins as yourself who drank, abused drugs and who were involved in crime.

25According to what you told Mr Coffey, between 2012 and 2014, there were reports to Child Protection, Department of Human Services, related to your drug use and alcohol use, fighting at school and your peer relations.

26In 2014, you studied for Year 10, but your alcohol and cannabis use continued.  Between September 2014 and May 2015, you served a youth justice centre order at Melbourne Youth Justice  for multiple offences, including aggravated burglary.  You told Mr Coffey you coped reasonably well in custody.  Following your release from detention, you continued to offend and you recommenced using cannabis and alcohol and began using methylamphetamine.  In
late-2015, you spent months away from the family home after a drunken fight with an older brother.  You lived on the streets and at the houses of friends.

27In 2016, the family moved to Pakenham.  You did not attend school in the first half of 2016 and abandoned all of your recreational activities.  You continued to abuse drugs and alcohol. Around mid-2016, you commenced the Victorian Certificate of Applied Learning and for four days per week, attended a building and construction course, but stopped after two months, due to increased substance abuse.

28You have been on remand in the adult prison system since your arrest, a period approaching one year.  Although you initially suffered thoughts of suicide and you have, from time to time, had trouble due to racist taunts and you have spent some of your time in custody in lockdown, you appear to have settled reasonably well into the adult prison system and you are supported by other inmates of Sudanese decent.  You have been prescribed medication to assist with sleep and mood.  You have undertaken some educational courses and other courses whilst in custody.

29Mr Coffey makes the point which I accept, that your offending occurred in the context of alcohol and drug use.  He says, inter alia;

“However, independent of the effects of his addictions, he was experiencing post traumatic symptoms, although not with sufficient intensity and frequency to diagnosis of post- traumatic stress disorder and a degree of underlying dysphoric mood.  He had long-standing problems with affect regulation and managing aggression.”

30There are no concerns about your intellectual functioning.

31Mr Coffey added later; “[80]

"At the time of the offending, Mr Leime was suffering from a range of substance use disorders, as described.  As described, at the time of the index offending, he was experiencing various symptoms of mental disorder, but in my opinion, he was not suffering from mental illness.  The source of the impairment in judgment when he offended was not mental illness.”

32You appear to have expressed appropriate insight as to the consequences of your offending and appropriate victim empathy and you have expressed to
Mr Coffey appropriate remorse.  Mr Coffey opined that there is a reasonable prospect you will re-offend, absent custody or very strict supervision.  He is of the view that your prospects for rehabilitation depend, to a large extent, upon you receiving treatment for your alcohol and drug abuse, which he thought were presently in abeyance in a custodial setting, as verified by negative urine screens.

33Ms Karapanagiotidis submitted your time in adult custody has been a wake-up call to you and that I should have you assessed for suitability for further detention in  a youth justice centre.  In the time since the plea, I have given thought to these submissions.  I appreciate that you are a young offender and that I must have full regard to passing a sentence that gives you the best chance of rehabilitation.  But balanced against that, is the fact that this is very serious offending, in which have instilled fear in the victims in their own home and the fact that you have in the past, been given dispositions designed to bring about your rehabilitation, which dispositions you have shunned, even committing this offending whilst the subject of a youth supervision order. 

34In my view, the sentence I impose must properly address deterrence, both general and specific and must properly denounce your offending and also have proper regard to protection of the public. 

35Ms Hamill, who appeared to prosecute, made submissions to this effect and she submitted that the only appropriate sentence was a term in an adult prison and for me to fix a non-parole period.  But I must also have regard to your youth and I am mindful of the fact that you have now been in adult custody for almost one full year.

36In all of the circumstances, I have decided that you must serve a term of imprisonment in an adult prison.  Because of your youth, I have provided for
a longer than what might be considered usual term on parole, should you be admitted to parole.  This amounts to only half of the total effective sentence
I will impose.

37On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years;

38On Charge 2, theft, you are convicted and sentenced to a term of imprisonment of six months.

39On Charge 3, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years.

40On Charge 4, theft, you are convicted and sentenced to a term of imprisonment of three months.

41On Charge 5, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years.

42On Charge 6, attempted armed robbery, you are convicted and sentenced to
a term of imprisonment of 12 months.

43On Charge 7, attempted armed robbery, you are convicted and sentenced to
a term of imprisonment of 12 months.

44On Charge 8, false imprisonment, you are convicted and sentenced to a term of imprisonment of 12 months.

45On Charge 9, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years.

46On Charge 10, theft, you are convicted and sentenced to a term of imprisonment of three months.

47On Charge 11, theft, you are convicted and sentenced to a term of imprisonment of seven days.

48On Charge 12, aggravated burglary, you are convicted and sentenced to a term of imprisonment of three years.

49On Charge 13, knowingly resisting an emergency worker on duty, you are convicted and sentenced to a term of imprisonment of three months.

50On the summary charge of unlawful assault, you are convicted and sentenced to a term of imprisonment of one month.

51I direct that six months of the sentence imposed on each of Charges 1, 3, 9 and 12, cumulate upon the sentence imposed on Charge 5 and upon each other, making a total effective sentence of five years' imprisonment.

52I direct that you serve a minimum term of two and a half years before being eligible for release on parole.

53I declare that there has been 354 days pre-sentence detention under the sentences passed this day and direct that 354 days pre-sentence detention be entered into the records of the court and be deducted administratively.

54For the purposes of s.6AAA of the Sentencing Act, had it not been for your pleas of guilty to the charges at an early time, I would have imposed a total effective sentence of seven and a half years' imprisonment and I would have fixed
a non-parole period of five years.

55The prosecution seeks ancillary orders, being a disposal and forfeiture order of various items seized from you.  This was not opposed and I have signed it.

56The prosecution seeks a forensic sample order, pursuant to s.464ZF of the Crimes Act 1958.  For the reasons stated in the order, I have signed it, which means that, having signed the order, it is lawful for a member of the police force to approach you in custody to take a swab from your mouth and a copy of that order will now be served on you at the court.

57Are there any questions arising out of that?

58COUNSEL:  No, Your Honour.

59HIS HONOUR:  Now, Mr Leime, the upshot of all that is, that in about 18 months' time, you will be eligible for parole.  Do you understand? 

60OFFENDER:  Yeah.

61HIS HONOUR:  Could you give the copy of the 464 order to your client when you visit him in the cells, Ms Karapanagiotidis?

62MS KARAPANAGIOTIDIS:  Yes, Your Honour. 

63HIS HONOUR:  Thank you, I am grateful for that. 

64Would you take Mr Leime back into custody please.

65I will just stand down until 10.30.

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