Director of Public Prosecutions v LT (a Pseudonym)

[2020] VCC 592

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LT

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2020
DATE OF SENTENCE:	8 May 2020
CASE MAY BE CITED AS:	DPP v LT (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 592

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Ms A. Brennan	Victoria Legal Aid

HIS HONOUR:

1LT,[1] you have pleaded guilty to the following offences which carry the following maximum penalties:

[1] A Pseudonym.

Charge Nos.	Charge	Max Penalty
1	Aggravated Home Invasion	25 years
2	Theft	10 years
3	Armed Robbery	25 years
4	Handling Stolen Goods	15 years
S/C 11	Commit an Indictable Offence Whilst on Bail	30 penalty units or 3 months

2Charge 1 of aggravated home invasion is a Category A serious youth offence.  The Sentencing Act requires a young offender to be sentenced to a period of imprisonment, unless exceptional circumstances are demonstrated. 

3You have relevant prior convictions.  I shall say something about them later in these sentencing remarks. 

4The prosecution tendered the prosecution opening on plea as Exhibit A.  A summary of your offending is as follows.

5You were born in 2001.  The aggravated home invasion occurred on 23 September 2018, when you were 17 years of age.  At the time you were in the company of two even younger offenders, who were aged 15 years and 14 years at the time of the offending.  A further offender remained unidentified. 

6At about 2.50 am on the morning of 23 September 2018, the victims of the aggravated home invasion, Ramandeep Kaler and his son Rohan, woke when you broke into their home in Delahey.  Rohan was confronted by four offenders carrying sticks, batons and/or a cricket bat as weapons.  One of those offenders was you.  (Charge 1)

7You as offenders demanded Rohan's wallet and phone and demanded he reset his passwords. 

8As offenders, you moved into Mr Kaler Snr's bedroom, woke him and hit him with the weapons as he lay in bed.  He was ordered out into the living room and under direction, provided his car keys, mobile phone and wallet. 

9The searches continued for about fifteen minutes.  During this time, the victims were threatened with statements such as 'I'll kill your family'. 

10You left their house in complete disarray.  You stole their car and threatened the victims not to call the police for ten hours after you left. 

11Mr Kaler Snr suffered from a fractured left patella. 

12Charge 2 relates to the goods stolen during this intrusion – two mobile phones and the car. 

13Along with your co-offenders, you left the victims' house in the stolen car.  You went to a Caltex service station in Sunbury.  The service station was locked and you used a tyre level to smash your way in.  Three out of the four of you were armed and you were carrying a large machete.  A co-offender removed trays of cigarettes (about one hundred packets in all).  You removed the till and used the machete to hit the antitheft wire in a menacing manner.  You threw several two litre bottles of soft drink at the service station attendant. (Charge 3)

14You and two of your co-offenders were identified by police when they reviewed the CCTV footage.  Police executed a search warrant at your home on 26 September 2018 and found the two stolen iPhones from the home invasion, the machete used during the armed robbery and packets of cigarettes stolen during the armed robbery.  In addition, police found a laptop computer and iPad, both of which were stolen during a burglary on 21 September 2018.  That is related to Charge 4.

15The offences you committed on 23 September 2018 were committed whilst you were on bail for a shop theft. 

16You were interviewed by police on 26 September 2018 but made a substantially no comment record of interview.  Further, you provided a false alibi. 

17You were initially remanded in custody but were granted bail in the Supreme Court on 4 December 2018.  You were remanded on unrelated matters on 8 February 2019 and you have remained in custody since that time. 

18You have now served 520 days pre-sentence detention, excluding today.  I shall declare that as a period reckoned as already served, when I come to pass sentence on you.

19Little need be said about the objective seriousness and your moral culpability for the offences of aggravated home invasion and armed robbery.  The seriousness of these offences can be gauged by reference to their maximum penalty.  Moreover, the fact that aggravated home invasion is prescribed by Parliament to be a Category A offence, demonstrates the seriousness with which any example of this offence must be approached. 

20Moreover, this is a serious example of the offence of aggravated home invasion. Taking the offending as a whole across the offences involved, here you are in the company of three other offenders; you wore a disguise; threats were made; force was used; injury was caused; property was damaged; and high valued items were stolen. The offending took place over a fifteen minute period.

21The Crown submits this offending falls in the midrange of gravity for this type of offending and also for the offence of armed robbery.  I agree. 

22The armed robbery was an equally terrifying event.  There was force of numbers, you wore disguises and the majority of you were armed.  You used threats and force to subjugate the victim and force his compliance.

23The Crown observes that your offending was relatively unsophisticated and unplanned, but not completely spontaneous. 

24Your moral culpability for these offences is high.  It cannot be mitigated by the fact that you were drinking alcohol and smoking cannabis beforehand.  You have prior matters including an earlier appearance on a charge of robbery and attempted robbery.  Your offending on these occasions represents a significant escalation in both the types of offences in which you were willing to engage and also the level of violence and threats you were willing to implement.

25The two victim impact statements made by the victims of the home invasion were not read to the court.  I shall respect their wishes and their privacy by not revealing their contents.  It is sufficient for me to say, however, that your brutal and cowardly conduct was terrifying for them and has had a long lasting impact on them both. 

26Although ordinarily such conduct would attract the principles of deterrence, denunciation, just punishment and protection of the community, resulting in substantial terms of imprisonment, I must take into account the fact that you were young at the time of your offending and you remain a young man.

27Before I turn to the consequences of your youth on the sentencing process, I will turn now to your personal circumstances. 

28You were born into a large family and have about six siblings.  You had a relatively stable childhood with no indication of abuse or trauma.  You were raised in the St Albans area.  Your father works in a factory and your mother is a home carer. 

29Your schooling was unremarkable.  Initially, you attended St Albans Primary and then moved onto Victoria University Deer Park campus from Years 7 to 9. It appears you became somewhat disruptive as a student and you briefly attended a specialised program for disengaged students in Flemington for a period, before you were detained at the Parkville YJC.

30I have reports from Dr Adam Deacon, psychiatrist, and Dr Aaron Cunningham, psychologist. Dr Deacon reports that you told him you were greatly affected by the sudden and unexpected death of your aunt in May 2018, and then of your grandfather in August of the same year. 

31You have been using alcohol and cannabis since you were about 16 and you reported to both Dr Deacon and Dr Cunningham that you had consumed alcohol and cannabis before committing these offences. 

32In an initial report dated April 2019, Dr Cunningham stated of you:

'His presentation was concerning given his inappropriate and restricted effect, breakdown in behaviour in the community and lack of insight'.

33Dr Deacon concluded that you appear to have experienced a grief reaction and disassociated adjustment difficulties following the death of your aunt and your grandfather. 

34Dr Deacon was unable to determine whether you were a leader or a follower of your younger co-offenders and within the wider cohort of youths with whom you were associating at the time of this offending. 

35In November 2019, Dr Deacon concluded that your risk of reoffending is largely dependent on your capacity to disassociate from your delinquent peers and to refrain from misusing alcohol and cannabis.  Even at that stage, Dr Deacon observed that you appeared committed to engaging in positive change.

36The YJC pre-sentence report states that when you were first remanded at Parkville, you participated in almost a dozen negative antisocial and disruptive incidents, which spiked in May 2019, but the most recent of which went through to 7 April 2020. 

37You were transferred to another unit and your behaviour immediately began to change in a prosocial way. 

38The key consequence of this transfer is that you no longer are associating with your previous cohort of friends and that wider circle in which they mix.

39I remain concerned that you still have, as late as April of this year, displayed negative and antisocial behaviour within the YJC system, given the changes that you have made.  Nevertheless, it is apparent that you have overall made considerable progress in your time on remand. 

40The letter from Parkville College dated 2 March 2020 indicates that you have consistently engaged in all education programs offered by the school.  You have excelled in art classes, showing considerable skill and creative talent in painting and drawing.  You have also completed over 140 hours of course work to successfully finish the Industry Specific Skills component of your foundation VCAL certificate.  It is apparent that notwithstanding your most recent antisocial outburst, you have made a considerable impression on the staff at the Parkville YJC and your teacher, Tom Pearce, at the Parkville College. 

41It appears that your change in attitude has been at least enhanced by your one-on-one psychological counselling sessions with private psychologist Michael Bilyk, who is engaging in cognitive behavioural therapy with you.  In addition to private counselling, you have been participating in prosocial programs delivered by Caraniche Forensic Youth Services. 

42I should also note that it appears that you have been subjected to out of cycle lockdowns, due to staff shortages and associated issues some 229 days.  On two days, you were locked down for almost an entire day. 

43Fortunately, it is the view of all the health professionals who have assessed you that you do not suffer from any cognitive or other impairment.  Your teacher Tom Pearce writes that you have displayed maturity and leadership, both in and outside the classroom and he considers you a kind, sensitive and loving young man who is loyal to your friends and family.  Importantly, he considers that you know right from wrong and you are committed to bettering yourself and those around you.

44It is encouraging that the YJC report states that you take responsibility for your criminal conduct and that your empathy towards your victims has improved over time.  In my view, these glimpses may be taken as exhibitions of remorse.  Taken with the other matters observed by those charged with your custody, it appears that you are taking steps towards your rehabilitation.

45I mention the principle of parity, but only to say that it is unnecessary to give it any real consideration in this case, because your co-offenders were sentenced under a different sentencing regime, with different sentencing objectives.  Accordingly, I do not consider a question of parity really arises in this case. 

46Both the prosecution and defence made extensive submissions in respect to the objective gravity of your offending, the fact that Category A offences call for a period of imprisonment, and on the weight to be given are factors personal to you, which may mitigate the sentence I impose on you.

47It is unnecessary to consider any of those submissions in particular detail, as both parties agree and submit that exceptional circumstances have been made out. 

48Essentially it is submitted by the parties that exceptional circumstances are made out by a combination of the following factors:

·     your young age;

·     the delay in the hearing of the matter, which was caused by an issue of whether or not you should have been committed to this court on a series of matters outside the aggravated home invasion dealt with in the Children's Court; together with

·     the fact that the matter ought to have proceeded when you were 17 years of age, but did not because of a jurisdictional error made at the committal stage;

·     your moral immaturity;

·     your vulnerability to negative peer influence in adult prison; and

·     the progress you have made in custody by the completion of courses, psychological counselling, education and insight that you have gained.  These are enhanced by the increase in improving maturity that you have displayed since you have been on remand at Parkville.

49The effect of this submission is that I should not sentence you to a period of imprisonment on the charge of aggravated home invasion, but instead I should order you to serve a period of detention in aggregate of all the offences that come before me. 

50It is implicit from what I have said so far that after the plea hearing, I ordered a YJC pre-sentence report.  The report is favourable.  You are assessed as suitable for a YJC order.  It concludes that you have reasonable prospects for your rehabilitation and that you present as vulnerable if placed in an adult prison.  Your vulnerability relates to your age, your lack of prior involvement with the adult system and the exposure to an influential older cohort, if you are placed in an adult prison. 

51Although it is implicit, it is important in these remarks to say something of the role that youth plays in your prospects for rehabilitation and the sentencing process.  It is recognised that young offenders, and particularly those at your young age, can make poor and irrational decisions in relation to offending.  The law recognises that these decisions should not stand in the way of the courts giving a real opportunity to rehabilitate yourself.  This may come with maturity over the years, or it can come through hard work now.

52The law also recognises that latitude given to youth will take a backseat in the case of serious offending.  Your offending on these occasions would ordinarily earn the clamour of the community for severe punishment.  You must understand that you are being given a real chance on this occasion.  However, the serious nature of your offending, together with your prior appearances for robbery and armed robbery, means that it is unlikely that you will ever get such latitude granted by a court again.

53Put another way, because of the progress you have made so far whilst in custody, you have been given a great opportunity here, a great chance. But it is probably your last chance. 

54You appear to have reasonable – good prospects for your rehabilitation.  You are still very young.  You have got a lot of years of maturing before you.  You have also done some very good work in Parkville.  In the end, the answer will come upon your release back into the community.  If you are able to avoid your old cohort and abstain from abusing alcohol and cannabis, it seems that your chances of staying out of trouble will improve considerably.  It is really up to you the life you choose.

55I acknowledge the submission made by Ms Brennan this afternoon and that is that the COVID-19 pandemic has caused havoc with the schooling and education of all young persons across the state, the nation, and indeed, the globe.  It has particular poignancy for you though LT, because you are conducting your schooling in a very confined environment, and I understand the importance that you place upon keeping yourself well occupied whilst you complete your time on remand and now your sentence.

56I appreciate the restriction on learning.  It appears that there may be an easing of the restrictions on limiting people to online learning coming in the next few weeks.  It is not apparent from what I read just before coming into court that it will be as soon as Monday though.  I appreciate that a move to Malmsbury could be a positive thing for you on turning 19 and moving into a more open environment. I appreciate that it's not going to be made any easier if your learning opportunity is not increased in the near future.

57This has led me to moderate the sentence that I was going to impose a little bit, but in the end, it cannot have a great effect.  The benefit you have is that you are not being sent to prison, but you are being sent to YJC.  After considering all of the factors both objective and personal in your favour, on all of the charges you face, you are convicted and ordered to serve a YJC order of 32 months.  I declare the period of 520 days, excluding today, pre-sentence detention reckoned as already served. 

58But for the plea of guilty, I would have imposed a sentence of imprisonment of five years and three years to serve. 

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