Director of Public Prosecutions v Leveni

[2020] VCC 1075

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01416

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUINA LEVENI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2020
DATE OF SENTENCE:	1 July 2020
CASE MAY BE CITED AS:	DPP v Leveni
MEDIUM NEUTRAL CITATION:	[2020] VCC 1075

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	Office of Public Prosecutions
For the Accused	Mr B.Newton	Robyn Greensill

HER HONOUR:

1Kuina Leveni, you have pleaded guilty before me to one charge of aggravated carjacking, one charge of theft and three summary offences comprising one charge of committing an indictable offence on bail, one charge of continuing to drive a motor vehicle after a police direction to stop and one charge of graffiti.

2You have also pleaded guilty to breaching a community corrections order, which has been heard concurrently with the plea proceeding.

3The facts underlying your offending are as follows.  At about 5.14 am, on
23 April 2019, you got off a train at Newport railway station and were captured on CCTV approaching a notice board and writing the name 'Dooso' on it with a white marker.  Those actions underlie summary Charge 7, making graffiti.

4At about 5.20 the complainant, Kazi Mouktahl, drove his car into the Newport railway station car park where he saw you standing outside a nearby shop. 
Mr Mouktahl parked his car and remained in the driver's seat while you walked up to the driver's door and continued past the car towards the Newport railway station.

5Mr Mouktahl got out of his car and locked it and started to walk to the railway station and as he passed you, you showed him a metal pole and said, 'Do you know what this is?'  Mr Mouktahl ignored you and kept walking and you said, 'Fuck off and put the keys down'.  Mr Mouktahl continued to ignore you but you then came closer to him and said, 'Put the keys down', while holding the pole up high, causing Mr Mouktahl to believe he was going to be hit with it.  You then said something like, 'I'll smash your face in', and then Mr Mouktahl then put his keys on the ground.  You told Mr Mouktahl to go away and he walked quickly behind his car.  You picked up the keys, got into the car and drove off.

6Those actions underlie Charge 1 on the indictment, aggravated carjacking and summary Charge 2, committing an indictable offence on bail.

7Over the next four days you kept the car, during which time you stole two sets of number plates from cars in the area.  The theft of those sets of number plates underlie indictable Charge 2, the charge of theft.

8At about 8.55 am, on 25 April 2019, you were seen by police driving the stolen car on the Princes Highway in Laverton North.  Police checked the registration number, noted the car was stolen and tried to intercept the car using lights and sirens.  You did not stop and police began chasing you along Geelong Road in Brooklyn.  You were swerving at other but managed to get away from police.  Those actions underlie summary Charge 3, driving a motor vehicle when directed to stop.

9At about 2.51 pm, on April 27, you were seen by protective service officers in a car near the Yarraville railway station and believing you were a person of interest approached you and spoke to you.  Police then attended and you were arrested in relation to this offending.

10You told the officers and police that the stolen car was in a nearby street and it was later recovered, although damaged.  You were then taken to the Footscray police station where you conducted an extremely cooperative record of interview making full admissions to the offending and you were charged and remanded in custody where you have remained ever since.

11The maximum penalty for aggravated carjacking is 25 years' imprisonment.  The maximum penalty for theft is 10 years' imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is 30 penalty units or three months imprisonment.  The maximum penalty for driving a motor vehicle when directed to stop is 60 penalty units or six months imprisonment or both.  And the maximum penalty for marking graffiti is two years' imprisonment.

12In addition, aggravated carjacking is a category 1 offence under the
Sentencing Act.  Section 5(2)(g), requiring that a custodial sentence be imposed for this offence.

13Further, s.10A(d) of the Sentencing Act requires that the term of imprisonment to be imposed for aggravated carjacking must contain a non-parole of no less than three years, unless there are special circumstances.

14I make the observation that defence made no submissions that there were any special circumstance reasons that existed which would interfere with the direction that I impose a minimum term of three years.

15In his Victim Impact Statement Mr Mouktahl said how he had just bought the car a week before.  He said when it was returned to him the car mirror was broken, there was scratches and the transmission was almost destroyed.  He said he was still paying to have this fixed.

16As a result of your actions as well he has become much more worried about being safe in the community.  He said he always feels nervous whilst driving late at night.

17As a result of you taking his car he could not go to university and because he was nervous he felt unable to see friends or to attend university.

18So what you did had a very serious effect on him.  He is paying for the damage to his car.  It interrupted his studies and his enjoyment of life has been, very much it would seem, made worse by feeling constantly unsafe.  And you should think about that and be ashamed of that, Mr Leveni.

19I now turn to your personal circumstances.

20You are now 26 years of age, almost 27, and you were born to your parents; an Aboriginal woman and a Tongan man.  They separated when you were young.  Both parents had difficulties with substance abuse, but they also had serious mental health difficulties.  Your mother suffers from the conditions of bipolar and schizophrenia and your father has been treated for schizophrenia for 20 years.

21After the separation you ended up with your father.  You have sisters who went with your mother.  But you and your younger brother were then placed in care with an uncle.  You lived with him for about six years to the age of 13, but in that time suffered amount of abuse and you were returned to your father.

22However, by that time your life had already been greatly disturbed.  You began smoking cannabis at the early age of 10, which was a daily habit by the time that you were 13.  Then you moved to using Xanex and Seroquel, and then in 2011 began using ice, which has been a big problem for you.  Alcohol, you also began at a young age and it was a real problem for you.  But it is quite clear that ice has been the main addiction for you in the past few years.

23You have along the way unsurprisingly, given the very difficult and unsettled family difficulties that you suffered, begun offending and you have got a long history of offending.  You have been dealt with for charges going back to 2008, including unlawful assault, robbery, intentionally causing injury, recklessly causing, theft, driving offences, aggravated burglary, armed robbery, intentionally causing serious injury and affray.  And again in 2011 you were dealt for armed robbery, and a further attempted armed robbery in 2012.  In 2014, you were dealt with for theft of motor vehicle, aggravated burglary, shoplifting, carrying a prohibited weapon and intentionally causing injury and theft of motor vehicle.

24Essentially, you spent most of your teens in custody, either in a Youth Justice Centre or in gaol.  Indeed, at one stage by the age of 15 you had spent only something like four months out of custody in the previous four or five years.

25The community corrections order breach relates to a sentence that I imposed on you in December 2014, on charges of intentionally causing injury and robbery.  On that occasion good plea material was placed in front of me, essentially dealing with how you had been proceeding in 2016.  The offending that I dealt you with occurred in February 2016, and when you were released on bail you undertook the CISP program.  And then were directed YSAS and progressed very well.  So by the time I came to sentence you in 2017 you had undertaken an amount of rehabilitation and your living conditions had greatly improved.

26You had been in a relationship with your former partner, Connie, since you were about 15.  At the time I placed you on the community corrections order in 2017 the two of you were living together and your daughter, the first of your two daughters was born in 2016.  Over the next two years you struggled with the community corrections order, but in my view did well.

27You undertook a number of programs, including residential rehabilitation in the Bunjilwarra Youth Koori Alcohol and Drug Healing Service.

28You came before me on a number of occasions in relation to judicial monitoring.  One of the very encouraging aspects of the community corrections order is that you, for the first time, were linked into your Aboriginal heritage.

29I understood from your counsel on the plea in this hearing that your daughters were very much educated by their mother, a Yorta Yorta woman, in what is called 'women's business'.  But you missed out almost entirely on any education about your culture.  But as I said, during the community corrections order you became involved in learning about and becoming involved in that culture.  In any event, things continued on fairly positively over the years of that community corrections order, until about December 2018.

30Leading up to that time a second daughter was born and whilst you were a very loving father, the relationship between yourself and your former partner, Connie, deteriorated significantly.  Connie had herself previously been a drug user until she became pregnant with your first daughter.

31On the birth of the second daughter it would appear Connie had difficulty coping and she began using drugs again.  She went back to using amphetamine, you went back to using cannabis, largely, your counsel told me, in order to in some way keep up some sort of relationship with her.  The relationship was described to me as a toxic one and certainly it is my view that by mid-2018 it had indeed become toxic.

32Ultimately, Connie threw you out of your home in December 2018 and would not let you have contact with your daughters.  You became homeless and fell back into ice use.

33In the meantime Connie, it appears, was unable to cope and the Department of Health and Human Services became involved.  And the children were taken from her and placed with her sister, Sarah, and Connie's stepmother.  They remain in their custody to this day.  Fortunately, you have a good relationship with your children’s carers and you have been able to resume contact with them.

34In any event, once DHHS became involved you were found by your older sister, Kasiah, who is very connected to her Aboriginal culture and a leader in her community, being involved in a number of Aboriginal health services and having a history of responsible employment.. As well, having at one stage worked as a bank teller at the ANZ.  She has the care of her own daughter and a niece.

35She came to find you once she was notified by DHHS and took you to live with her.  For the next three or four months you progressed well.  You stayed off drugs, you went to the gym and you lived with your sister until about April 2019, when unfortunately Connie made contact with you.  At that stage your counsel informed me she was living in a motel, the children had been taken from her, she had gone back into heavy drug use and she had no food.

36You and Kasiah went round to see her at the motel, you went out the back to help hang out some washing, took quite a long time to do that, and when you came back in you appeared to Kasiah to be under the influence of drugs.  She called in your friend Rohan, who had been taking you to gym, he confirmed that you were on drugs and you suddenly left Kasiah's home and went off with Connie.

37The two of you lived a patchy sort of lifestyle, heavily using drugs.  Indeed, it is noted in one report that by this stage you had gone from smoking to injecting ice.  And unsurprisingly the relationship between you and Connie ended again.

38You were then homeless, using a great deal of drugs and essentially in a state of despair.  This was very much revealed in your record of interview with police in relation to this offending, you telling them that when you were driving off when told to stop by police you were considering whether to choose between death or gaol, which you believed inevitably lay ahead of you.

39In any event, you were living in the stolen car in the days that you had it.  And of course, in the circumstances, you were remanded in custody and have stayed there ever since.

40Whilst in gaol you have been housed at both Barwon and Port Phillip Prisons.  You have worked the entire time, first as a cleaner, then in the nuts and bolts factory at Port Phillip and are now a yard billet.

41You are undertaking weekly drug and alcohol sessions which is very much to your credit.  Whilst programs were open before the onset of the COVID-19 restrictions, you were very much involved in the Koori Art program and you were undertaking education programs in literacy and basis arithmetic at the Kangan Tafe.  These programs of course have now ceased.

42I should add that whilst you obtained your Year 11 VCAL at Youth Justice you have had very little by way of employment over the years and this is something you very much want to rectify.

43So the situation now is that I am satisfied that you are doing well.  You are stable in gaol and I am instructed that you are not using any drugs within the gaol system.

44You continue to have contact, albeit not direct contact with your daughters and you speak regularly to your sister Kasiah on the phone.  She has invited you to live with her on your release from custody.

45You told me during the plea that you do not want to inflict yourself on Kasiah.  You feel that you are of no use to her and indeed make her life more difficult.  But I am encouraged by the fact that you do have the support of this very strong and capable woman in your life.

46She described to your counsel (being unable to attend court during the plea due to family illness) what she said was your considerable progress in the time that you lived with her.  And I understand, as you said, that she is happy to have you back with her again.

47So that is your current situation, Mr Leveni.  It was conceded very fairly by the prosecution that the case of Bugmy has application in your case.  What that means is that you are a person of indigenous descent who has undergone an extraordinarily traumatic and difficult childhood.  You have essentially became institutionalised in your teenage years.

48You then, in 2016, 2017 and for most of 2018 made steady progress in the community and is a matter of pride to you that you stayed out of gaol between 2015 and 2019, which was your longest period consistently in the community since your mid-teens.  And I accept that that demonstrated that you have a good capacity to carve out a productive and responsible life if you want one.

49I am satisfied that your plea of guilty was an early one, that you have saved the community the time and expense of a trial and saved the complainant the trauma of having to give evidence and undergo cross-examination at either committal stage or at trial.  I accept that you are remorseful for your offending.

50I accept that, as I have said, that the conditions of Bugmy have application to your case and are a mitigatory factor.

51I also accept that due to the onset of COVID-19 restrictions your time in custody is harder, in that you are unable to take the programs in which I am satisfied you were very much engaged previously and that you now have restrictions in place in relation to your daughters and family.

52As to your prospects of rehabilitation.  Whilst my experiences with you on the community corrections order have led me to believe you certainly have the capacity to stay out of gaol and to carve out a productive life, there are some problems with that, largely being your own lack of confidence and the fact that you do need support in doing this.  Certainly I believe there are prospects of rehabilitation and as I have said I am comforted in that fact, both by my experiences of you on the community corrections order and by the strong family support that you have on your release.

53I am also satisfied that the relationship with Connie, which has largely been an unhelpful and abusive relationship has now ended and that you have come to realise that your contact with Connie in early 2019 was disastrous.  You described yourself on the plea as being a puppy dog around her, hopefully you have got over that.

54The situation is that Connie has got her own demons and the problem is that when they arise in her, if you are in a relationship or having contact with her, that is going to affect your own ability to remain drug and crime free in the community.  Is that right, Mr Leveni?

55OFFENDER:  Yes - yeah.

56HER HONOUR:  You no longer have contact with Connie.  I was also informed on the plea that Connie has attempted to make contact with her sister but she is not willing to let Connie back into her life and hopefully that will be the situation for you as well.

57In all the circumstances, taking into account the mitigatory factors I have outlined, I sentence you as follows.

58On Charge 1, you are sentenced to three years and six months' imprisonment.

59On Charge 2, theft, you are sentenced to four months' imprisonment.

60On the summary charge of committing an indictable offence on bail you are sentenced to three months' imprisonment.

61One the charge of making graffiti you are sentenced to three months' imprisonment.

62And on the charge of failing to stop on order of police you are sentenced to four months' imprisonment.

63The base sentence will be the sentence imposed upon Charge 1, three years and six months.  And I order that two months of the charge of theft, one month on the charge of committing an indictable offence on bail, one month of the offence of making graffiti, one month on the sentence of failing - sorry.  And two months of the offence of failing to stop when directed by police be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of four years.  And I order that you serve a minimum term of three years before becoming eligible for parole.

64In relation to the breach of the community corrections order you are sentenced to one month imprisonment, which will be concurrent and I will make no further order in relation to that offending.  And that is because you largely completely successfully the conditions of that community corrections order.

65Pursuant to s.6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four years and six months, and order that you serve - sorry.  I would have sentenced you to a term of imprisonment, yes, of four years and nine months and ordered that you serve a minimum term of three years and 10 months before becoming eligible for parole.

66What is the PSD please, Mr Raimondo?

67MR RAIMONDO:  It's 431 days, Your Honour.

68HER HONOUR:  Thank you.  I declare that 431 days of this sentence have already been served by way of pre-sentence detention.  All right?  So that comes off the time that I have given you.

69OFFENDER:  Yeah.

70HER HONOUR:  Does that makes sense to you?

71OFFENDER:  Yeah.

72HER HONOUR:  Now, I am a little troubled, Mr Raimondo, about the compensation order.  I just do not see much point in making it.  He has got no chance of paying it back, it seems to me.  I will be grateful if it could be passed on to the complainant that I am very sympathetic to his situation, but I am not going to make the order, I do not think, because of the impossibility of it ever being paid.

73MR RAIMONDO:  Your Honour please, that's fine.

74HER HONOUR:  Thank you very much.  Is there anything else that I need to deal with?

75MR NEWTON:  Your Honour, there was the issue of the driver's licence?

76HER HONOUR:  In relation to Charge 1 you are disqualified from obtaining - sorry.  All licences are cancelled and you are disqualified from obtaining a further licence for a period of 15 months.  All right.

77MR NEWTON:  As Your Honour pleases.

78MR RAIMONDO:  Your Honour please.

79HER HONOUR:  I thank counsel very much indeed, as I said, for their helpful paperwork which enabled me to sentence as readily as I was able to do.

80MR RAIMONDO:  Your Honour please.

81HER HONOUR:  Good luck, Mr Leveni.

82OFFENDER:  Yeah.

83HER HONOUR:  Thank you very much.

84OFFENDER:  Thank you.

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