Director of Public Prosecutions v Litova
[2024] VCC 561
•29 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LOKOMANOA LITOVA |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2024 | |
DATE OF SENTENCE: | 29 April 2024 | |
CASE MAY BE CITED AS: | DPP v Litova | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 561 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Akoka v The Queen [2017] VSCA 214; [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; R v Hermann [2021] VSCA 160; Newton (a pseudonym) v The King [2023] VSCA 22; DPP v Aludlimi [2022] VCC 1371; DPP v Ali [2019] VCC 1503; DPP v Dalvean [2019] VCC 403; DPP v Al Batat [2020] VCC 1155; DPP v Taylor [2020] VCC 387; DPP v Van Nooten [2023] VCC 2268; DPP v Eriha [2023] VCC 2199.
Sentence: 10 months’ imprisonment and a 12-month community correction order. s 6AAA declaration, two years’ imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Wilson | Office of Public Prosecutions |
| For the Accused | Ms M. McDonald | Stary Norton Halphen |
HER HONOUR:
1Lokomanoa Litova, you have pleaded guilty to:
· One charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment;[1] and
· One charge of causing injury recklessly, which carries a maximum penalty of five years' imprisonment.[2]
[1]Crimes Act 1958 (Vic) ss75A, 321M ('Crimes Act').
[2] Ibid s18.
2You have also admitted your prior criminal history.[3]
[3] Exhibit B - Criminal Record.
Circumstances of offending
3The circumstances of your offending are set out in the summary of prosecution opening for plea dated 4 April 2024, the accuracy of which you accepted through your counsel.
4The following is an outline of that offending.
5The victims in this matter are Hoang Thai and Timothy Rattray, neither of whom were known to you at the time of the offending.
Charge 1
6On 24 February 2023 at approximately 6:35 pm, Thai boarded the Route 220 Kinetic bus from Footscray railway station. He observed you and David Bui running towards the corner of Nicholson Street and Paisley Street, where you both boarded the same bus.
7Thai attempted to leave the bus at a stop near the IGA on Barkly Street, West Footscray, but you were standing at the door and blocking his exit.
8Thai managed to get past and exit the bus. You began abusing him and shoved him as he was disembarking. You then exited the bus and followed Thai as he walked.
9You caught up to Thai and used your body to stop him from walking past you. Thai said, 'stay away from me', while using his bag and suit bag to block you. You then reached towards your left side and produced a silver and blue knife approximately 15 centimetres in length. Thai saw about five centimetres of the blade when you pointed it towards his stomach saying, 'give me all your money'.[4] This comprises Charge 1, the attempted armed robbery charge.
[4] Statement of Hoang Thai dated 24 February 2023, 2.
10Thai ran away from you, back in the direction of the bus. Bui then called out to you to get back on the bus, while Thai yelled out to those still on board the bus that you had a knife. You chased Thai and then got back onto the bus. Thai ran towards the front of the bus and knocked on the driver's window to tell him that you had a knife.
Charge 2
11A short time later the second victim in this matter, Mr Rattray, looked at you and you asked, 'What are you looking at?'. Rattray responded, 'I am not looking at anything. I am minding my business'.[5]
[5] Statement of Timothy Rattray dated 24 February 2023 [20] -[21].
12Bui told Rattray '[not] talk to [his] cousin like that'. Bui approached Rattray, and Rattray put his arms out to keep distance between them.
13You then approached Rattray and punched him in the left eye. You put him in a choke hold by wrapping and squeezing your forearm around his throat, causing him to have difficulties breathing.
14You then began to push and shove each other. Passengers on the bus called for the bus to stop. Bui punched Rattray in the back of the head multiple times. The confrontation lasted one minute before you and Rattray fell onto the floor and let go of each other.
15The bus driver had pressed the emergency duress button. When the bus stopped, you and Bui were escorted from the bus by other passengers, who attempted to de-escalate the incident. You were observed swinging your fists at two of those people. You then left, walking east on Barkly Street with Bui.
16Victoria Police arrived approximately five minutes later. Rattray was given first aid and conveyed to Footscray Hospital for treatment.
17During the assault Rattray's fingers were bitten, causing injury. The Crown cannot prove beyond reasonable doubt whether it was you or Bui who bit his finger. The Crown allege that you were acting in agreement, arrangement or understanding to assault Rattray with Mr Bui. Rattray suffered injuries to his left middle finger which required stitches, damage to his left ring-finger fingernail, swelling on his ear and a bloodshot right eye.
18That conduct comprises Charge 2 of recklessly causing injury.
19You were arrested by police and participated in a record of interview. You admitted to 'hit[ting] someone'.[6] You denied having the knife on you at the time of offending.
[6] Record of Interview of Mr Litova dated 24 February 2024, Q/A 59.
Nature and gravity of offending
20Mr Litova, your offending involved vulnerable and unsuspecting passengers going about their ordinary business in broad daylight, in public places on and near public transport. You had no previous association with your victims and they did nothing to provoke you. You apparently targeted them at random. The public, quite justifiably, are terrified by the current spate of knife-related violence in public places. The impact is on not only the victims themselves but all of those who witnessed your actions, and it will be long-lasting.
21Your actions were unsophisticated and opportunistic in nature and there is no evidence of premeditation. Attempted armed robbery is an inherently serious offence, but your offending lacks the hallmarks of more serious examples of armed robberies such as where an offender has concealed their identity or offends at night against soft targets.
22The offending against Rattray appears to have been in response to anticipated confrontation perceived by you, when clearly the victim was intent on minding his own business. It was of short duration but did involve both you and Bui. You were not deterred by the presence of witnesses and bystanders from continuing your brazen offending.
23The objective gravity of your offending is aggravated by the fact that you were on two community correction orders at the time of the offending, including one for robbery in December 2019.
24I conclude that the objective gravity of your offending in respect of both offences is low-mid range.
25Both victims have chosen not to provide a victim impact statement.
26I accept that the offending, however, would have been frightening and stressful to both Thai and Rattray and I note that Rattray required medical attention.
Personal Circumstances
27You were 23 years old at the time of the offending and are now aged 25.
28You had an unstable childhood and a volatile family home. You are the youngest of three children born to your parent's relationship. You have two older half‑siblings.
29Your father drank heavily during your childhood.
30Your parents went through an acrimonious separation in 2016 and you describe this period of your life as 'traumatising'. You would often attempt to intervene in violent disputes between your parents.
31Despite your turbulent childhood, you remain close with your family and you have been in regular contact with them in custody. Your parents are now back together and they remain supportive of you.
32You were sexually abused by an older family friend between the ages of four and 10. Understandably, this abuse has had a significant impact on you and your self‑worth.
33You attended local schools in Footscray and Braybrook; however, your education was disrupted by learning difficulties and behavioural disturbances. You were aggressive towards other students and you frequently truanted.
34You completed a pre-apprenticeship in bricklaying after leaving school and you worked in this area for several years.
35At the time of your offending you were unemployed.
36You are working as a cook in custody and have completed a food handling course and nutritional certificate. You find this work fulfilling and enjoyable and have expressed an ambition to work as a chef in the future.
37You have an extensive history of substance abuse. You started abusing cannabis and alcohol at the age of 14 and your use escalated rapidly to daily use for much of your teens and twenties.
38You first used both methamphetamines and heroin at the age of 15 and your use soon became problematic. You have abused methamphetamines for most of your adult years.
39Mr Litova substance abuse issues have impacted every area of your life. You have struggled to maintain employment and you acknowledge that you become very aggressive when intoxicated.
40You have made attempts at rehabilitation through Alcoholics Anonymous and Narcotics Anonymous. You also spent four months at Odyssey House in 2023.
41You have returned three negative drug tests during your time in custody and have expressed your motivation to remain drug-free once released from custody.
42You have been in a relationship with your partner, Brehanna, for several years and you share a 16-month-old daughter. You have been incarcerated for the majority of your young daughter's life. You acknowledge that you initially coped poorly with fatherhood and have expressed a strong desire to be a better parent.
43I acknowledge that Brehanna is attending virtually this sentencing hearing today. In her character reference tendered in support of your plea, Brehanna speaks of the troubles you have faced in your life and says, '[h]ow much it breaks [your] heart for [your] family to be separated'.[7] She stated you have accepted accountability for your actions and believes you will 'make good changes to better [yourself]'.
[7] Exhibit 4, Character Reference of Ms Johnstone dated 11 April 2024.
Mental health history
44You reported to Dr Mathew Barth, a psychologist, that you have experienced emotional disturbances, periods of sadness and feelings of worthlessness since childhood.[8] You report that these feelings are related to your unstable childhood, the conflict in your family and your experience of sexual abuse. You acknowledge that you abuse alcohol and lash out in anger as a way of coping with your feelings.
[8] Exhibit 1, Report of Dr Barth dated 8 April 2024.
45You told Dr Barth of past attempts to self-harm and that you continue to experience transient thoughts of suicide; however, you denied any current intent to self-harm.
46Your cousin died of a drug overdose at the end of 2022. You reported that this event, as well as your brother's diagnosis of schizophrenia and his residency at a psychiatric ward, have caused you significant distress.
47Dr Barth concluded that your symptoms are sufficiently severe to warrant a diagnosis of adjustment disorder with mixed disturbance of emotions and conduct.
48Dr Barth noted that you have very low self-esteem and you feel a deep sense of inadequacy. You have poor emotional awareness and coping skills, which means that you are vulnerable to engaging in destructive behaviours. The seriousness of the current charges has contributed further to your emotional distress.
49Regarding your cognitive function, Dr Barth said that you presented as an unsophisticated man with simplistic social reasoning but that you were fully able to understand the consequences and wrongfulness of your behaviour. He estimated that you are a man of below-average intelligence.
50Dr Barth states that your dysfunctional personality development has contributed to your inability to maintain a healthy lifestyle in the community. While you narrowly fail to meet the criteria for a personality disorder, Dr Barth concluded that your symptoms are noted as representing 'prominent features of an antisocial personality'.
51Dr Barth further considered that your history of substance abuse is intense enough to meet diagnostic criteria for alcohol-use disorder, cannabis- use disorder and stimulant-use disorder.
Prior attempts at AOD rehabilitation
52You were admitted to Odyssey House, Victoria on 10 August 2023 and stayed there until you chose to exit treatment on 18 December 2023 following a positive drug screen. You completed the initial assessment phase of the program and at the time of your exit you were participating in the Level 2 stage, working to develop your individual recovery plan.
53This well-regarded residential rehabilitation program places certain restrictions upon ordinary life. During your stay you were subjected to regular drug testing. You were only permitted to leave the facility for approved outings, appointments, and activities under supervised conditions. You were required to follow a structured daily routine and were permitted approved visitors who were deemed 'safe'. You were subject to a nightly curfew and regular roll calls. You were not permitted access to a personal phone and your conversations were otherwise screened.
54You have previously attended Alcoholics Anonymous and Narcotics Anonymous meetings.
Sentencing considerations
Prospects of rehabilitation
55As is often a common experience for persons recovering from an addiction, your rehabilitation pathway has not been a 'linear' one. You have made a solid attempt at Odyssey House but have not fully grasped the previous opportunities afforded to you. You are still young; however, and importantly, your family and partner remain supportive of you. You also have a demonstrated work history. You have spent over half of your young daughter's life in custody and supporting your partner and being a good father is a significant motivating factor for you. I accept that your motivation to abstain from drugs and to alter the trajectory of your life is a genuine one.
56Since being in custody you have been in a period of enforced remission. Dr Barth opines that you will require extensive substance abuse and psychological treatment when you are released from custody if you are to have any prospect of rehabilitation.
57While the prosecution submits that I ought view your prospects of rehabilitation as 'guarded', I am satisfied that given your relatively young age, history of residential rehabilitation treatment, that, provided you obtain the required support and treatment for your past trauma and substance abuse issues in the future, you stand a fair chance of rehabilitation.
Risk of reoffending
58Dr Barth opines that you pose a moderately high risk of violent reoffending. He notes that your risk of reoffending is increased by your significant history of behavioural problems in the community and your substance abuse issues.
Punitive nature of time spent in residential rehabilitation
59In Akoka v the Queen, the Court of Appeal held that the punitive nature of time spent at a residential rehabilitation facility such as Odyssey House must be taken into account in sentencing in addition to any rehabilitation achieved during that residency.[9] While such time will not be considered in the same way as pre‑sentence detention in accordance with s 18(1) of the Sentencing Act, I do have appropriate regard to the punitive and restrictive nature of the four-month period you spent at Odyssey House in late 2023.
[9] Akoka v the Queen [2017] VSCA 214.
Youth
60Mr Litova, you are now aged 25. While not a 'young offender',[10] you are youthful and accordingly I have regard to the principles outlined in the case of Mills.[11]
[10]Sentencing Act 1991 (Vic) s3.
[11] [1998] 4 VR 235. See also Azzopardi v R (2011) 35 VR 43, 54 [34].
Remorse
61You told Dr Barth, 'I would like to say sorry to them [meaning the complainants], I hate violence it's not a good thing'.[12] I accept that this sentiment coupled with your plea of guilty is an expression of genuine remorse.
[12] Report of Dr Matthew Barth dated 8 April 2024, 5 [26].
Plea of guilty
62You pleaded guilty at the fourth committal mention on 31 August 2023. The Crown accepts that this was the earliest opportunity for you to plead guilty. In doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial.
63While the trial backlog in the County Court has now been reduced to its pre‑COVID‑19 levels, I accept that your plea has contributed to assist the justice system to recover from the effects of the pandemic. Accordingly, you will receive a sentencing discount for your plea of guilty in accordance with the principles in Worboyes' case,[13] in so far as they are relevant at this point in time.
[13]Worboyes v The Queen [2021] VSCA 169.
Other reduction of your moral culpability
64Mr Litova, your childhood was marred by deprivation and trauma. Your father drank alcohol heavily and you frequently witnessed violence in your home. You often attempted to intervene in altercations between your parents. Your father was verbally abusive towards you and your siblings and would resort to humiliating and controlling behaviour.
65Your parents separated in 2016 in acrimonious circumstances and you experienced resultant periods of housing insecurity and significant financial uncertainty. You and your siblings were at times required to live in a hotel, with your parents struggling to afford necessities for the family. Against this background of instability, you commenced using drugs at a young age and relied on substance abuse as a way of coping.
66The abuse you experienced over a number of years has left you with significant ongoing feelings of shame.
67Your childhood circumstances would have all been profoundly difficult for you and accordingly your moral culpability is reduced in accordance with the principles of Bugmy[14] and Herrmann's case.[15]
[14]Bugmy v The Queen [2013] 249 CLR 571.
[15] [2021] VSCA 160, [36] - [46]. See also Newton (a pseudonym) v The King [2023] VSCA 22, [45].
68Regardless of this poor start, you retain the support of your family. Your parents reunited some years after their separation and they both, together with your two sisters, attended court virtually to support you during your plea.
Criminal history
69You have a relevant criminal history over the past 10 years, which includes dispositions including imprisonment for property offences, intentionally causing injury, common law assault, unlawful assault and assault against a protective services officer.
Sentencing principles
70In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending with the interests that the community clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and reintegrated into society.[16] I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
[16] Sentencing Act 1991 (Vic) s5.
71Given your relative youth and fair prospects of rehabilitation and other mitigating factors, any sentence I impose must not be a 'crushing' one.
72While both offences occurred in close proximity to each other, they are properly distinct instances of offending involving separate victims, requiring a degree of cumulation.
73General and specific deterrence and denunciation are important sentencing considerations in your case; however, I consider that community protection will be best served by sentencing you to support your best prospects of rehabilitation upon your release.
74The parties agree, having regard to current sentencing practices for these offences and relevant comparative cases,[17] that a combination sentence is appropriate given the objective gravity of your offending, as well as the relevant sentencing principles I have considered.
[17] DPP v Aludlimi [2022] VCC 1371; DPP v Ali [2019] VCC 1503; DPP v Dalvean [2019] VCC 403; DPP v Al Batat [2020] VCC 1155; DPP v Taylor [2020] VCC 387; DPP v Van Nooten [2023] VCC 2268; DPP v Eriha [2023] VCC 2199.
Sentence
75Mr Litova, I sentence you as follows:
76On Charge 1 (attempted armed robbery) you are convicted and sentenced to nine months' imprisonment. This is the base sentence.
77On Charge 2 (recklessly causing injury) you are convicted and sentenced to two months' imprisonment and to a community correction order for 12 months.
78The sentence of nine months on Charge 1 is the base sentence and I order that one month of the sentence on Charge 2 be served cumulatively upon the sentence of nine months on Charge 1.
79That is the total effective sentence is 10 months' imprisonment combined with a community correction order for 12 months to be commenced upon your release from custody.
Pre-sentence detention
80Pursuant to s 18 of the Sentencing Act, the period of 296 days of pre-sentence detention not including today is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.
Community correction order
81On Charge 2 you are convicted and sentenced to a community correction order which will commence upon your release from custody.
82The conditions of this order are:
(a) you must attend at Sunshine Community Corrections Service within two clear working days of this order commencing;
(b)
you will be under the supervision of a community corrections officer for
12 months, which means that you are required to be supervised, monitored and managed as directed;
(c) you must undergo assessment and treatment including testing for:
·Alcohol abuse and drug abuse dependency as directed; and for
·Mental health as directed; and also undergo
·Programs to reduce your risk of reoffending.
(d) you must not commit an offence punishable by imprisonment during this order;
(e) you must not leave Victoria without permission of Community Corrections;
(f) you must let your community corrections officer know within two clear days of changing address or a job;
(g) you must comply with any lawful direction given by a community corrections officer that is necessary to ensure you comply with the order;
(h) if you contravene this order by either committing further offences or by failing to comply with the conditions, then you can be brought back before this court, fined and resentenced. That might mean you go to gaol again for these offences.
83Mr Litova, do you have any questions about this order? No.
84Do you consent to being placed on this order?
85OFFENDER: Yes.
86HER HONOUR: Thank you.
87You have indicated your oral consent to this order, which I direct to be entered onto the court record.
Section 6AAA declaration
88Pursuant to s 6AAA of the Sentencing Act I indicate that had you pleaded not guilty and been found guilty after trial I would have sentenced you to a term of two years' imprisonment with a non-parole period of 15 months.
Ancillary orders
89I make the disposal order sought by consent.
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