Director of Public Prosecutions v Leveni

[2022] VCC 224

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00714

CR-21-02553

DIRECTOR OF PUBLIC PROSECUTIONS

v

Takavaha LEVENI

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF SENTENCE:	4 March 2022
CASE MAY BE CITED AS:	DPP v Leveni
MEDIUM NEUTRAL CITATION:	[2022] VCC 224

REASONS FOR SENTENCE

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Subject:                   Criminal Law Sentence

Catchwords:       Aggravated burglary (two charges) – Theft – Common assault – Sexual assault – (four charges) – Plea of not guilty on sexual assault charges – Pleas of guilty on some charges – Aggravated burglaries committed the same night against the same victim– Assaults occurred in victim’s home – Application of Bugmy principles

Legislation cited:     Sentencing Act 1991 (Vic)

Cases Cited: Bugmy v The Queen [2013] HCA 37

Sentence: Total effective sentence of 8 years and 5 months with a non-parole period of 5 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr S. Kennedy	Robyn Greensill & Associates

HIS HONOUR:

1Takavaha Leveni, you have pleaded guilty to two charges of aggravated burglary, one charge of theft, one charge of attempted burglary and to the uplifted summary charge of commit indictable offence whilst on bail. On
8 December last year you were found guilty by a jury of one charge of common law assault, and four charges of sexual assault. The maximum penalty for aggravated burglary is 25 years’ imprisonment, for theft – 10 years’ imprisonment, for attempted burglary – 5 years' imprisonment, for common law assault – 5 years’ imprisonment and for sexual assault – 10 years’ imprisonment.

2You have admitted a criminal record that discloses relevant prior convictions.  Most relevant to this case are your previous convictions for aggravated burglary and burglary, between 2011 and 2017.  You do not have previous findings of guilt or convictions for sexual assault matters.

3The offending for which I sentence you now occurred in three discrete incidents on the night of 27 February 2020 and the morning of 28 February 2020. I will provide a brief summary of your offending.

Circumstances of Offending

Incident 1: Charge 1 – Aggravated Burglary, Charge 2 - Theft

4On the night of the offending you were staying at Latrobe Street, Footscray. Your victim Lina Garro[1] (I will refer to her as) lived a short distance away in Footscray. She lived alone and was sleeping in an upstairs bedroom from 10pm on 27 February.

[1]A pseudonym.

5Between 11:07 pm and 11:45 you were recorded on CCTV walking from
Latrobe Street towards the victim’s address. At around 11:45 pm you entered when you knew or were reckless as to whether a person was present at the premises (Charge 1 – Aggravated Burglary).

6Whilst inside the premises you took various items, namely a Samsung mobile phone, a bankcard in the name of Lina Garro, cigarettes, a laptop bag and charger, a passport in the name of Lina Garro and an electronic access fob (Charge 2 – Theft).

7You were then recorded on CCTV walking away from the victim’s address and again recorded making a balance inquiry at an ATM using the victim’s bankcard. You used the bankcard to recharge a SIM card for the amount of $40.

Incident 2: Charge 3 – Aggravated Burglary, Charge 4 – Common Assault, Charges 5-8 – Sexual Assault

8At 5:59 am the following morning you were again recorded on CCTV walking towards your victim’s address. At around this time you entered the Macpherson Street address with a knife (Charge 3 – Aggravated Burglary).

9At approximately 6:00 am, your victim awoke after hearing a noise from the downstairs level of her house. She lay in bed listening and heard muted thumping noises and the sound of objects being moved and dragged around downstairs.

10Your victim got up to investigate. She was wearing only her underwear. Your victim opened her bedroom door and immediately saw you, standing about a metre away directly in front of her 

11You told your victim something to the effect of “don’t look” and “don’t move”. She did not reply. You pushed your victim backwards into the bedroom and onto the bed (Charge 4 – Common Assault). You pulled a doona over her face restricting her vision and continued to tell her not to move. She was terrified of your behaviour and remained on the bed, unable to move. She believed, understandably, that you intended to rape her.

12You left your victim’s bedroom before returning with a knife. You brandished the knife at her before holding it to her throat while roughly gripping the back of her neck. You fondled her breasts and pinched her nipples while you ran the blade of the knife over her breasts (Charge 5 – Sexual Assault).

13You again left the bedroom, returning intermittently while continuing to tell your victim not to move. You returned to the bedroom and moved your victim’s body so she was lying on her stomach and positioned yourself behind her. You moved her underwear, exposing her buttocks and the back of her legs. You then poured a liquid over her exposed buttocks and her legs (Charge 6 – Sexual Assault).

14Your victims head remained covered by the doona. The liquid had a strong distinctive smell that your victim described as similar to that of methylated spirits. She believed it was some sort of accelerant and that you intended to set her on fire. You rubbed and pinched her breasts again while she remained in this position (Charge 7 – Sexual Assault).

15You then lay on top of your victim and rubbed your genital and groin area up and down over her exposed buttocks in a gyrating and thrusting motion. The complainant was of the view, and I accept, that your clothing remained on as she did not feel your bare skin. You continued this action for approximately
5 minutes (Charge 8 – Sexual Assault).

16You then left the room and again told your victim not to move. You left the premises and switched off the power at the fuse box located next to the front door.  At 6:07 am you were again recorded on CCTV running in the direction of Latrobe Street. A short time later you were recorded on CCTV running into the driveway of your premises on Latrobe Street.

17After discovering her mobile phone and after-hours work access fob had been stolen, Ms Garro waited at her house until her work opened at 8:00 am. She then walked to her workplace and told her colleague about what had happened that night. She used a work phone to report the matter to police who attended and commenced an investigation. Ms Garro was later examined by Dr Phillipa Brook. Dr Brook found bruising on both of your victim’s breasts consistent with blunt force trauma from being grabbed and twisted, and abrasions consistent with contact with a fingernail.

Incident 3: Charge 1 (Indictment No. L10570410.2) – Attempted Burglary

18At approximately 8:40 am on 28 February, you were recorded on CCTV looking over the rear fence into a yard in the same block of units that you resided in on Latrobe Street. Your victim Ms Lilly Chen[2], who was 6 months pregnant at the time, was lying in bed with the window open. She heard what sounded like a person in her backyard. She got out of bed and looked towards the bedroom window. At this time you pushed your hand through the window and removed the fly wire from the fly screen. Your victim called out “hello who’s there?” and you removed your hand and ran from the address (Charge 1 – Attempted Burglary).

Summary Offence 10 – Commit Indictable Offence on Bail

[2]A pseudonym.

19On 19 February 2020 you entered into an Undertaking of Bail at the Footscray Police Station to reside at your stepmother’s house at Vipont Street Footscray together with other conditions. You committed these offences to which I have referred whilst that undertaking was still in effect and specifically in breach of the curfew condition. (Summary Offence 10 – Commit Indictable Offence on Bail).

Investigation

20At about 5:15 pm on 28 February investigators executed a search warrant at your unit on Latrobe Street. Located at the address was a red and black backpack which contained, amongst other items, the Samsung mobile phone which had been stolen from Ms Garro, a red multi-tool knife, a wallet with two bank cards and a proof of age card all in your name, a screwdriver and a silver prying tool.

21At approximately 9:20 pm that night police attended the Vipont Street home. Police spoke to your stepmother who told them you had not resided at that address for over 3 weeks.

22You were arrested on 4 March 2020 after being found hiding under a pile of clothes in a bedroom at a unit on Racecourse Road, Flemington. You were taken to Melbourne West Police station and interviewed. You told police that you had been consuming drugs for a number of days and had no clear recollection of the night. You also made broad denials of the offences.

Victim Impact Statement

23The victim of your protracted and degrading sexual assault has been significantly impacted by your crimes. I received a moving, thoughtful and carefully considered victim impact statement from her. I have taken the contents of that statement into account.

24Quite reasonably, your victim feared for her life, she feared she would be raped, she feared she would be set alight – due to your conduct. She feared that you had killed or seriously injured her precious dog. She is left anxious and fearful, her confidence is shaken, she couldn’t remain at the premises you burgled, even though she had just moved in. She had to experience the displacement and stress of moving, paying a new bond, and resettling, whilst trying to cope with the emotional and psychological impacts of your crimes. Your theft of her belongings involved personal items of great value that cannot be replaced. The impacts of your offending are far-reaching and ongoing.

25I also want to note that the victim impact statement was very measured in its expression and very generous in its tone and content. I found it to be a powerful document.

Objective Gravity of Offending

26The objective gravity of your offending, particularly in relation to the charges on the indictments, is reflected in the maximum penalties – being 25 years’ imprisonment on the charges of aggravated burglary, - 10 years’ imprisonment on the charges of sexual assault and attempted burglary – and 5 years’ imprisonment on the charges of theft and common assault.

27In relation to the aggravated burglary offences, your offending took place in the middle of the night. Your victim was alone and not known to you. She was asleep during the first aggravated burglary and thefts and during the initial period of the second aggravated burglary. At the time of your second entry you possessed a knife.

28Your offences of sexual assault were attended by multiple aggravating factors. The offending took place in the victim’s home, a place where she was entitled to feel safe. You assaulted her at knifepoint. You brandished a knife and ran it across her body while repeatedly telling her not to move. You wrapped her head in a doona, preventing her from seeing and restricting her movement. The nature of your assaults in these circumstances, and in particular the use of a liquid by you, caused terror for your victim. You terrorised her, causing fear of rape, fear of being set alight, and fear of being killed.

29The Aggravated Burglary - Charge 3 was put on the basis of an intent to steal and not to commit a sexual assault. I accept you did not enter the premises with an intent to sexually assault your victim. The sexual assaults were not premeditated, they fall into a class off offending that can be described as opportunistic.  They are nonetheless serious examples of the crime of sexual assault. You violated her person, you violated her human rights and safety in a most degrading and humiliating way.  All of this occurred at knife point, in her home, in the middle of the night.

30I must impose sentences which adequately express this Court’s denunciation of your conduct. I must impose sentences which deter others from engaging in similar grave offending.

Personal Circumstances

31You are 37 years of age.  You have had a difficult and unfortunate life. Your immediate family circumstances were dysfunctional and troubled. You had inadequate support and security as a child.  You were born in Sutherland in outer suburban Sydney. Your father is Tongan, and your mother is Aboriginal. They separated when you were two years of age. You had a brother from this relationship who was 11 months your junior, tragically he passed away at age 17. After your parents separation you then lived in Tonga with your father and paternal grandmother until around the age of 8, at which point you came back to Australia with your paternal grandmother as I understand it, after spending some time in Auckland. Your father had re-partnered in the meantime but that relationship ended when you were aged 10.

32Your father married another Aboriginal woman I was told, Dolly, when you were 13 or 14. Your father and Dolly had four children together; your brothers aged 23, 25 and sisters 26 and 28. You continue to consider Dolly as your stepmother as I understand it and you were bailed to live with her prior to the offending before me. It seems that the only real care, love and sense of belonging you received in your developmental years was from your paternal grandmother. Sadly she passed away in 2003.

33In your teenage years your father was diagnosed with paranoid schizophrenia. You have described him as a violent and alcoholic man and you were exposed to family violence, alcohol abuse and other significant trauma during your formative years. You were a victim of physical abuse at the hands of your father and sexual abuse at the hands of others when you were aged 8 or 9. You lived with your mother in Colac for around a year when you were 15. By the age of 17 you were living with a partner in Geelong.

34I received a psychological report from Mr Bernard Healy on your Plea. Mr Healy sums up your childhood in this way:

Not unexpectedly his experience of home life was turbulent, conflictual and abusive where he didn’t really expect much by way of affectional support and care and indeed seemed to experience much by way of rejection.

35As is often the case for young people exposed to the level of trauma and dysfunction that you were in your formative years, you drifted toward alcohol and substance abuse at a tender age. That drift into drug use has gone hand in hand with the presence of other criminogenic factors in your early life, in turn leading to offending and periods of detention.

Education

36Your schooling was fragmented. You completed some early schooling in Tonga, Auckland and Swan Hill and whilst living with your grandmother in South Melbourne. You attended Albert Park Secondary College in Year 7, Braybrook Secondary in Year 8 and possibly part of Year 9. You left school when you went to stay with your mother in Colac.

Work

37In 2011 you secured plant operating certificates in regard to earth moving. I was told you have your diggers’ licence and can operate a range of back-hoes and bob cats and so forth. You have demonstrated earlier in your life that you have the capacity to engage in gainful employment. You can hold a job, and did so for several years I was told over periods between 2003 and 2014, interrupted by court appearances. Whilst you have not worked since 2014 I find your capacity for work has been a protective factor in the past and is one bright light in respect of your prospects of rehabilitation.

Personal relationships

38You have three children; two from your first significant long term relationship, and the third from your second long term relationship. You have lost contact with your older two children I was told but remain in contact with your 12-year-old daughter.

Intellectual Functioning

39Mr Healy assesses you as performing within the average range of intelligence.

Prospects of Rehabilitation

40Your Counsel, Mr Kennedy, was realistic about how I should treat your prospects of rehabilitation.  The use of substances has overwhelmed your life. It is linked to all of your offending before me. You were heavily intoxicated at the time of your commission of the crimes before me. Your ability to rehabilitate from drug use without structured support is unlikely.  You explained your plan for rehabilitation to Mr Healy in the following terms:

He has made certain resolves in his mind that with a close friend he will move away from the metropolitan area, away from the drug subculture and endeavour to remain free of drug abuse addiction and develop a life of better functioning, better health and possibly be employed and make contact with his children.

41I accept you are genuine in relation to this broad objective. Your history shows however that you would require significant support on parole in order to stay on the path toward rehabilitation. You were using a significant amount of GHB at the time of the offending that is before me. As your Counsel has set out, and as Mr Healy set out in his report, you have been in and out of jail since 2015 – significantly more in than out – and your recidivism has coincided with relapse. I accept that you are despairing of the years you have lost to drugs and crime.

42As I have observed, one bright light in relation to your prospects is your capacity for work. If you make good on your resolve to escape environments where your drug use is more likely, you may have some prospect of gaining employment and remaining drug free.

Sentencing Factors

43You have pleaded guilty to charges of aggravated burglary, theft and attempted burglary.  You are entitled to a discount for the utilitarian value of your pleas. Your pleas coming during the pandemic and attract greater significance for their utilitarian value.

Impacts of COVID-19

44You have been in custody for 730 days of which 638 days are referrable to the offending for which I am now sentencing you.  Your entire period in custody has been endured during the pandemic. Significant restrictions and deprivations apply during that time. I take into account the fact that your incarceration has been more onerous due to these factors than it otherwise would have been.

45The matters raised by your Counsel, and those referred to in more detail in the report of Mr Healy give rise to the engagement of the Bugmy v The Queen (‘Bugmy’) principles.[3] I consider that your traumatic and disrupted early life is directly connected to your catastrophic drug abuse and other associated problems that affect your life in the realms of housing, employment, education, and inter-personal relationships. You have had little in the way of family support for your entire life.

[3]Bugmy v The Queen (‘Bugmy’) [2013] HCA 37

46I accept that exposure to trauma, violence, alcohol abuse and deprivation of care and support has placed its mark on you and shaped your life, your responses and impulses. I asses your moral culpability in light of these factors.

Serious sexual offender

47Due to the sentences imposed on charges 5 and 6 I must sentence you as a serious sexual offender in respect of charges 7 and 8 and I direct that the fact you are a serious sexual offender be entered into the record of the Court.

48The Prosecution have conceded that a disproportionate sentence is not called for in order to give effect to the primacy of the protection of the community.

49The presumption in respect of charges 7 and 8 is that the sentences will be cumulative rather than concurrent by way of operation of s 6E of the Sentencing Act.

50I have also had regard to the fact that all of the offences before me were committed whilst on bail, and the operation of s 16(3) Sentencing Act applies.

51I apply those provisions, and I also have regard to the principle of totality. The breadth of the offending before me occurs over a 8–9-hour time-frame. The most serious charges – charges 5-8 – occur within a 7-minute time frame and are properly regarded as a series of connected offences.

52The application of the principle of totality results in substantial concurrency flowing across the charges. I have also applied the principle of totality in taking into account the entire period of custody you have experienced since remanded on this matter on 4 March 2020.

53In sentencing you I have regard to the importance of general deterrence, denunciation, community protection, and specific deterrence in your case, as well as your prospects of rehabilitation.

Sentence

54I sentence you as follows, Mr Leveni, you can remain seated:

55On Charge 1 Aggravated burglary you are sentenced to 2 and a half years' imprisonment.

56On Charge 2 -Theft- 12 months' imprisonment.

57On Charge 3 – Aggravated burglary – 3 years' imprisonment.

58On Charge 4- Common assault – 3 months

59On Charge 5- Sexual Assault – 3 years' imprisonment

60On Charge 6- Sexual Assault – 3 years' imprisonment

61On Charge 7-Sexual Assault – 3 and a half years' imprisonment

62On Charge 8- Sexual Assault – 4 years' imprisonment.  This is the base sentence.

63On Charge 1 on the second indictment - Attempted Burglary – 6 months' imprisonment.

64Summary offence of committing indictable offences whilst on bail- 2 months' imprisonment

65I direct that six months of the sentence on each of charges 1, 5 and 6 be served cumulatively on each other and on the sentence imposed on charge 8. 

66I direct that nine months of the sentence imposed on charge 7 be served cumulatively on the sentence imposed on charge 8 and other sentences. 

67I direct that two years of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 8.

68I direct that two months of the sentence imposed on charge 1 on the second indictment be served cumulatively on the sentence imposed on charge 8 and other sentences. 

69That makes a total effective sentence of 8 years and 5 months' imprisonment.  I set a non-parole period of 5 years and 3 months' imprisonment.

70Pursuant to s 18 of the Sentencing Act I declare that you have served 638 days' pre-sentence detention.

71MR KENNEDY:  Yes, Your Honour, it is.

72HIS HONOUR:  Thank you.  I make that declaration, 638 days.

73In relation to 6AAA it's a difficult exercise when there's a mixture of pleas and not guilty but I indicate that pursuant to s 6AAA that were it not for your pleas of guilty on charges 1 to 3 and charge 1 on the second indictment that you would have received a total effective sentence overall of 10 years' imprisonment with a non-parole period of 6 and a half years.

74I make the forfeiture orders sought. 

75Are there any others that I am required to make?

76MR KENNEDY:  No, Your Honour.

77HIS HONOUR:  All right.  Mr Leveni, I am going to excuse you from this hearing but you will remain on the link.  There is another matter that I need to discuss with the parties which is completely separate to your matter so I am going to excuse you from this hearing but you will remain on the link, remain where you are because Mr Kennedy will be available to be able to speak to you on the link to explain the sentence to you.

78Your total effective sentence is 8 years and 5 months with a non-parole period of 5 years and 3 months and you've served 638 days of that sentence.

79Yes, Mr Leveni can now be placed in the lobby.

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