Director of Public Prosecutions v Levi

[2017] VCC 933

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01441
CR-16-01442
CR-16-01831

DIRECTOR OF PUBLIC PROSECUTIONS

v

EUGENE LEVI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2017
DATE OF SENTENCE:	10 July 2017
CASE MAY BE CITED AS:	DPP v LEVI
MEDIUM NEUTRAL CITATION:	[2017] VCC 933

REASONS FOR SENTENCE
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Subject:         Armed Robbery, Intentionally causing serious injury.
Sentence:      8 years imprisonment with a non parole of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms T. Saville
For the Accused	Mr P. Dunn QC

HIS HONOUR:

1Eugene Levi, you have pleaded guilty to a number of charges contained in two separate indictments.  The first indictment numbered G10914522, concerns offences committed by you on 11 July 2015 and on 18 October 2015.  The second indictment numbered G10910131 concerns offending committed by you on 21 March 2016.

2You were born on the 30 December 1997.  At the time of the occurrence of the offences in the first indictment, you were 17 years of age.  At the time of the occurrence of the offences in the second indictment, you were 18 years of age.  You are now aged 19 and fall to be sentenced as a young offender.

3Concerning the charges on the first indictment, Charge 1 is a charge of armed robbery, for which the maximum penalty is 25 years imprisonment.  Charge 2 is a charge of intentionally causing serious injury in circumstances of gross violence, for which the maximum penalty is 20 years imprisonment.  Charge 3 is a charge of reckless conduct endangering life, for which the maximum penalty is 10 years imprisonment, and Charge 4 is a charge of being a prohibited person, you used a firearm for which the maximum penalty is also 10 years imprisonment.

4Concerning the charges on the second indictment, Charge 1 is a charge of aggravated burglary, for which the maximum penalty is 25 years imprisonment, and Charge 2 is a charge of intentionally causing injury, for which the maximum penalty is 10 years imprisonment.

5The circumstances of your offending are contained in two prosecution summaries that were tendered in evidence and marked as exhibits “A” and “B” respectively.  “A” relates to the offending in the first indictment and “B”, to the offending in the second.  Your counsel, Mr Dunn QC, accepted that the respective summaries were accurate and form a proper basis upon which I can proceed to pass sentence upon you.

6Each prosecution summary was read in open court by the prosecutor,
Ms Saville.  It is therefore not necessary that I here, repeat in full, that which is therein contained except in a very summary way.

7On 11 July 2015, and whilst you were serving a twelve month Youth Attendance Order, imposed upon you for prior offending, you and two other offenders, Do then aged 21, and Nguyen then aged 24, stole a Porsche Macan vehicle at gun point in Nicholson St, North Carlton, at 11.30pm on a Saturday evening. 

8You and your co-offenders staged a minor car accident with the Porsche.  When the driver stopped and got out of his car and knelt down to inspect if there was any damage to the rear of his vehicle, you grabbed hold of him and held a handgun to the right side of his stomach and demanded the key to the Porsche which was still operating.  Nguyen then drove off in the Porsche and you and Do followed.  (Charge 1).  The following day the Porsche was located.  Nguyen and Do were in the vehicle and were arrested and charged. 

9On 8 April 2016, both pleaded guilty to armed robbery in this court, on the basis that they each had aided and abetted you.  On their pleas, the prosecution conceded that neither Do, nor Nguyen, were aware that you possessed a firearm until you produced it.  They were each sentenced to 12 months imprisonment, together with a community corrections order for two years, with conditions including 200 hours unpaid community work.  Your involvement in this offence was more serious than that of either Do or Nguyen because you produced a firearm and threatened the victim with it.  On the other hand, you were then a child at law and your co-offenders were not.

10On 26 August 2015, police executed a search warrant at your home where they seized a pair of shoes believed to have been worn by you at the time of the offence.  On 31 October 2015, you were arrested and interviewed by police in relation to this offending, and the offending in Charges 2 to 4 on the first indictment.  At that time, you made “No comment” to questions put to you, as is your right.

11On 4 April 2016, you were arrested in relation to an unrelated matter and you then made full admissions to police about the armed robbery offence and other matters.  That is to your credit and I have taken this into account in passing sentence, reducing the head sentence I would have otherwise imposed, because of this, on the armed robbery charge. 

12Self-evidently, your offending in relation to the armed robbery charge is a very serious example of what is a serious offence.  Armed with a handgun, which you pressed against the complainant, in the company of others, you stole his expensive motor vehicle in a very public way, in a public place, on Nicholson St, North Carlton.  Although it seems to have been a spur of the moment decision to steal the Porsche, the modus operandi employed by you and your co-offenders is one that unfortunately has become somewhat notorious and prevalent in this city.  The complainant was unarmed and this must have been a very frightening experience for him. 

13At the time you committed this offence, you were undergoing a sentence being a Youth Attendance Order imposed in the Children’s Court on 20 June 2015, for what I was told could be summarised as “Violently stealing motor cars”.

14The charge of intentionally causing serious injury in circumstances of gross violence occurred about three months after the armed robbery of the Porsche.  The complainant and two others drove to McDonalds for food in the early hours of the morning.  They were travelling in a stolen Mercedes.  You had earlier been observed by police driving a Subaru WRX.  When police tried to pull you over, you sped off resulting in a short police pursuit which was abandoned.  You are not charged with any offences in relation to the chase.  It is part of the background.

15A short time later, you drove in the Subaru to a street where the complainant and the others were sitting in the parked Mercedes eating McDonalds food.  You got out of your vehicle and walked to the front of the Mercedes where you produced a firearm, which you discharged into the front windscreen of the Mercedes towards the driver’s side, where the complainant was seated.  You fired a total of five shots into the windscreen of the Mercedes.  You then went back to your car. (Charge 2)

16The complainant sustained three superficial puncture wounds containing shotgun pellets to the right chest, and four superficial puncture wounds, also containing shotgun pellets to the right shoulder, as well as multiple superficial abrasions, pain, bleeding and swelling.  He underwent surgical wound debridement in hospital.  There is still some shrapnel present in the result.  The complainant is now unsuitable for MRI examination.  Photos of the complainant’s injuries were tendered.  The prosecution did not tender a victim impact statement.

17After you fired the five shots at the complainant seated in the Mercedes, he started to drive to hospital in the Mercedes.  You waited for the vehicle to pass you and you then drove up alongside it whereupon you again fired another shot into the Mercedes, as it was driving along the road. (Charge 3)

18Charge 4 results from your use of a firearm in circumstances described above.  In passing sentence on this charge, I am mindful that you are not to be punished twice for the same criminal conduct that makes up the other charges.  On
4 April 2016, you were arrested and interviewed by police in relation to another unrelated matter.

19During the course of being interviewed, you volunteered to the police that you wished to speak to them in relation to the offending now contained in the first indictment.  During the course of the interview, you indicated that in committing Charges 2, 3 and 4, you acted out of revenge for injury inflicted by the complainant towards a close friend of yours, and that you were affected by methylamphetamine at the time of offending.  You told the police your intention was to kill the complainant and you were happy that you had hit the driver.

20Your admissions were frank and I take into account that they have greatly advanced the administration of justice because without them, I have concluded it is probable that you would not have been charged.  Because you were frank with the police and told them of this offending, I have reduced the head sentence I have imposed on Charges 2 and 3 and this is reflected in the sentence I will shortly pass.

21Again, it is self-evident that your offending in Charges 2 and 3 is very serious, especially Charge 2 where it was your intention to kill the complainant by use of a firearm.  Again, your conduct was a very obvious display of violence in a public place.

22Gross violence may involve a number of matters depending on the circumstances.  Here, you planned your attack.  You approached the Mercedes knowing that the occupants were unaware of your presence, when the Mercedes was stationary.  You intended to cause injury by use of a firearm which you in fact used in the commission of this crime.  According to your record of interview, you intended to kill the driver. 

23I turn to your offending in the second indictment where six months later, you again acted in a very violent way, this time accompanied by others.

24The complainants resided together at premises in Springvale.  At the time of the offending, they were in their home and asleep, when you and your co-offender Ropati, and another unidentified male offender, forced entry into the home via a rear door.  The three of you stormed into the bedroom of the complainants who were immediately awoken. 

25You were armed with a knife (Charge 1), Ropati was armed with a sawn off shotgun, and the unidentified male, with a pole.  You demanded money and when the male complainant said “No”, you grabbed hold of him by the neck in a choker type hold, punching him to the face and dragging him towards the kitchen from which he sustained bruising to the face (Charge 2).  The male complainant had trouble breathing such was the strength of the hold you had on him.

26The female complainant remained in the bedroom with the other two offenders.  She told them money was in a safe, but unintentionally, gave them an incorrect pin to open it and the contents of the safe could not be accessed.  She was told by the unidentified male that if she did not give them the pin he would “Take her out”.  The safe was opened.  You and your co-offenders escaped with $5,000 cash and other items including a motorcycle.

27You were arrested on 4 April 2016 and made a “No comment” record of interview, which is your right.  You have been in custody on these charges since 4 April 2016.  You were at first remanded at Malmsbury Youth Justice Centre, then Port Phillip Prison, and more recently in the youth wing at Barwon Prison.

28Your offending embraced by the charges in the second indictment is also very serious offending.  Aggravated burglary, as the maximum sentence provided for this offence shows, is a very serious offence.  Here, you were accompanied by others with weapons and you armed yourself with a knife and entered the sanctity of the victims’ home at night with the intention of stealing from them.  I regard this as a another very serious example of what is another serious offence.  It must have been a terrifying experience for the complainants who were both unarmed in bed asleep in their own home.

29You thus fall to be sentenced as a young offender, for three separate incidents of offending, each of which was characterised by violence, or the threat of violence when armed with a weapon. 

30You have pleaded guilty to the charges and I treat you as having indicated that you would do so at the earliest opportunity.  The matter proceeded by way of a straight hand up brief.  By pleading guilty to the charges, you have saved the time and costs of what would have been three trials.  For that, you are entitled to a reduction in sentence and in passing sentence, I have taken all of this into account.  I also treat your pleas of guilty as indicating your genuine remorse for your offending.

31When you pleaded guilty, you admitted prior convictions from four previous appearances in the Children’s Court.  Two of those previous appearances related to offending involving acts of violence.  You also have prior convictions for possession of drugs and you told police that when you offended in Charges 2 to 4 on the first indictment, you were affected by the drug known as ICE.

32Mr Dunn filed with the court a written outline of submissions which I marked as Exhibit 1.  In it, he conceded that your offending is serious and that the sentencing principles of general and specific deterrence are important in arriving at an appropriate sentence.  That was appropriate in the circumstances.  He also appropriately conceded that the sentence imposed would involve a term of imprisonment to be immediately served.

33You were born in Australia of Samoan parents.  You have one sister and two foster siblings.  Your parents separated when you were aged 13, your mother leaving the family and leaving you and the other children in the care of your father.  Your parents reconciled three years later and remain together.  Your father aged 53 is employed as a guillotine operator and your mother is an aged care worker in a nursing home.

34On the plea, it was noticeable that the courtroom was filled with family and friends from the local Samoan community and Samoan church, who came to the court to support you.

35You are a single man and you do not have children.  You attended school in the south eastern suburbs of Melbourne where you were expelled during
Year 9, aged 14.  You have thus had a limited education.  Mr Dunn described you as living life “Couch surfing” thereafter as you began using drugs and committing offences.  You did commence a carpentry apprenticeship, but your services were terminated after only a few months.  You have played some local football and rugby and had some boxing training.  Physically, you are of large stature and you appear, at least to me, to be physically a very strong person.

36Your path to drug use is all too familiar.  It commenced with alcohol and cannabis use regularly aged 13.  By age 15, you were smoking Ice.  By age 17, you had used MDMA, cocaine and GHB.

37I admitted into evidence as Exhibit 2, a psychological report from forensic psychologist Ian McKinnon who saw you for that purpose at Port Phillip Prison,  where you have been on remand on 24 March 2017.  In that report Mr McKinnon opined:

"You were suffering from symptoms of depressed mood disorder;

Your functional intelligence is within normal adult range;

Your general cognitive functioning appears within normal adult range;

You appear to have been suffering a significant level of chronic depression since early adolescence, in part related to your parents separation and other matters;

Prior to your remand, you were suffering with a very serious and entrenched Substance Abuse Disorder, primarily involving abuse of very large quantities of methylamphetamine;

You are now drug free having spent more than a year on remand;

You expressed appropriate remorse;

During the time of the offences, you were probably suffering from symptoms that meet the criteria for Substance Abuse Disorder and Depressed Mood Disorder;

Your use of Ice degraded your ability to reason and make sound judgment;

Your substance abuse disorder was probably fuelled by an underlying chronic depressed mood disorder.

Although you are managing well in the prison environment, a significant term of imprisonment is likely to fuel your already significant level of depression".

38I accept that at the time of offending, you were affected by methylamphetamine.  Your habit to some extent may have developed because you felt depressed and unhappy with your life.  I accept you are now remorseful, and in a prison setting, you are now drug free, although I have not seen any documentary evidence of that. The fact you were drug affected when you offended and may have been depressed helps to explain your offending.  It does not excuse it in any way.

39In his submissions, Mr Dunn outlined three outstanding matters yet to be dealt with in the Magistrates’ Court.  One matter relates to allegations of assault on prison officers in an incident that occurred when your father visited you.  I have been told those matters will not be resolved until this sentencing by me has been finalised.

40As I noted at the outset, this offending occurred when you were a child and a young offender and I must have full regard for your prospects for rehabilitation, and that you be given opportunity to rehabilitate.  You are still a young man and a young offender and it is in your interest, and the community’s interest long term, that you be given every opportunity to turn your life around, as you have indicated you want to do.   I guardedly assess your prospects for rehabilitation as being reasonable, provided you have proper treatment for your drug addiction once you leave prison. 

41Although you have committed several very serious, and violent offences over a period of eight months, because of your age, both at the time of offending and now, the law provides that I must not impose a sentence that will crush you from the prospect of achieving full rehabilitation.  In short, I must have proper regard to, and appropriately apply, the principle of totality in sentencing and the sentence must properly denounce your offending and protect the public so far as is possible.  The sentence that I will shortly pass I believe adheres to these principles. 

42In arriving at my sentence, because you are now a young offender, and committed some of these offences as a child, I have reduced both the head sentence that I have arrived at on each charge, and I have limited the amount of accumulation between the individual sentences imposed, applying the principle of totality.  I have also taken these factors into account in fixing a non-parole period, which is just below two-thirds of the total effective sentence.

43In assessing your prospects for rehabilitation, I have taken into account that you have pleaded guilty at an early stage and appear genuinely remorseful, as you have expressed your remorse.  You volunteered to police your involvement in the offending resulting in Charges 2, 3, and 4 on the first indictment.  That is a significant sign of genuine remorse, as well as assisting the administration of justice.

44Also, there has been delay in finalising these matters which have been hanging over your head whilst on remand for over a year.  You have used your time fairly well and appear to have rid yourself of drugs.  I was told, and accept, that prison has had a salutary effect upon you and you are determined to turn your life around.  You are presently housed at Barwon prison.

45It was noticeable in the court that you have good family support and support from the Samoan community and I am reasonably confident you will still have that support when released.  In passing sentence, I have taken into account two references about you.  One was from Temese Leilua from Youth Works, and the other from Pastor Eddie Erika from Grace Connections Inc.

46Now dealing with the charges in the first indictment.  On Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of three years.

47On Charge 2, intentionally causing serious injury, in circumstances of gross violence, you are convicted and sentenced to a term of imprisonment of five years.  On Charge 3 charge of reckless conduct endangering life, you are convicted and sentenced to a term of imprisonment of two years.  On Charge 4, being a prohibited using a firearm, you are convicted and sentenced to a term of imprisonment of six months. 

48Dealing with the charges in the second indictment.  On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of five years.  On Charge 2, intentionally causing injury, you are convicted and sentenced to a term of imprisonment of one year.

49I direct that the sentence imposed on Charge 2 on the first indictment be the base sentence, and that 12 months of the sentence imposed on Charge 1 of the first indictment, and two years of the sentence imposed on Charge 1 of the second indictment, cumulate upon the base sentence and upon each other, making a total effective sentence of eight years imprisonment.  I direct that you serve a minimum  term of five years before being eligible for release on parole.

50I declare there has been 462 days of pre-sentence detention.  I direct that 461 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and be deducted administratively.

51For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of twelve and a half years and I would have ordered that you serve a minimum term of nine and a half years, before being eligible for release on parole.

52The prosecution seeks orders for disposal of various items which were not opposed, and I have signed those orders.

53The prosecution also seeks the making of a forensic sample order under s.464ZF of the Crimes Act 1958.  The making of that order was also not opposed and for the reasons stated in the order I have signed it.  The effect of the order is that whilst in prison, you may be approached by a member of the police force for the purposes of taking a forensic sample from your body, which in this case is the taking of a swab from your mouth.  Are there any questions arising out of that sentence?

54MS MILLAR:  No, Your Honour, just one very minor thing.  I had calculated 462 days.  It's a day, but ‑ ‑ ‑

55HIS HONOUR:  It depends whether you count - I do not count - I do not count today.

56MS MILLAR:  Not including today.

57HIS HONOUR:  Not including today? 

58MS MILLAR:  Yes.

59HIS HONOUR:  And not including the day of the plea?  So it's up to the day of the plea?

60MS MILLAR:  All right, I didn't have the day of the plea included.

61HIS HONOUR:  I think it's 461, but I stand to be corrected.

62MS RADOVIC:  I'm in Your Honour's hands.  Unfortunately I haven't had an opportunity to calculate it.  I only found out about this matter ten minutes before we were listed and I apologise for appearing unrobed and without a wig.

63HIS HONOUR:  Well if the prosecution says it's 462, I'm more than happy to amend it to 462 and give Mr Levi the benefit of one day.

64MS RADOVIC:  As Your Honour pleases.

65HIS HONOUR:  I will correct the sentence when it is revised.  It will be 462 days pre-sentence detention.

66MS MILLAR:  Thank you, Your Honour.

67HIS HONOUR:  Thank you.  Would you take Mr Levi back into custody please.  Adjourn the court until 10.30.

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