Director of Public Prosecutions v Lu
[2018] VCC 1998
•16 November 2018
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-00129
Indictment No. H11299504
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGHIA LU |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial 17 August-Jury 20 August; verdict 27 August: Plea 14 November 2018, | |
DATE OF SENTENCE: | 16 November 2018 | |
CASE MAY BE CITED AS: | DPP v Lu | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1998 | |
REASONS FOR SENTENCE
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Catchwords: Home invasion, Robbery, ICI; Trial. Lengthy criminal record. 40 years of age.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Gray at trial | Office of Public Prosecutions |
| For the Accused | Mr I Polak | Papa Hughes lawyers |
HIS HONOUR:
1 Nghia LU following a relatively short trial, and after a little over an hour of deliberations, on 27 August of this year a jury found you guilty of one charge of home invasion, one charge of robbery and one charge of ICI. Verdicts were not taken on the lesser alternatives to those three charges. Your counsel applied for the matter to be adjourned to November owing to the desire to have you assessed by a psychologist. Accordingly, the matter was listed on Wednesday 14 November for plea and having heard the plea I remanded you to today’s date for sentence. Your co-accused a man named Aneet pleaded guilty to a very differently framed plea indictment involving charges of aggravated burglary and RCI where it was accepted that he had no direct physical role in any violence. He was much younger and had a very limited criminal history. He is yet to be dealt with. His further plea and sentence is listed on 30 November. You are now 40 years old and have a lengthy criminal record with many appearances over more than 20 years.
2 The maximum penalty for the home invasion charge is 25 years imprisonment. The maximum penalty for robbery is 15 years imprisonment and for the ICI is 10 years imprisonment.
Facts
3 Now the matter ran as a trial so I have no agreed summary to work from. Instead, witnesses gave evidence at trial. I have reviewed the evidence and it very much mirrored that which was contained in the trial summary of prosecution opening. Stated very briefly, you and 3 others attended at the victim William Truong’s house in Avondale Heights on the day in question. So 21 February 2017.
4 You, Aneet and one other man referred to as Archie were passengers in the car driven by a man named Mark Borg. The car was driven to the victim’s address at around 5PM. Borg never left the area of the vehicle and was not charged. Archie remains unidentified.
5 As the victim Truong returned to the property in his car with a female friend named Ms Terryn Adrain, you, Aneet and Archie got out and swung into action. Mr Truong knew you. He also recognised Archie and Borg. You could hardly have been more distinctive with dyed orange hair. In any event identification was never in dispute here.
6 The three of you surrounded the car. You were yelling at the victim. Truong was ordered from his car. You punched him in the face twice whilst trying to drag him from the car. There were demands made for his keys and wallet. You ultimately dragged him to the front door of the house whilst punching him. If I may jump ahead, after the event, there was some obvious blood staining found outside the front door.
7 Plainly you were the instigator here. That is conceded by Mr Polak. The other men at the scene were followers and provided support and the strength of numbers. Aneet had little by way of active role within the house. His main role was to deter any intervention. To keep the other occupant at bay outside the house. It was probably Archie who took a number of items embraced by the robbery charge of which you have been found guilty courtesy of the existence of an agreement.
8 You, Aneet and Archie clearly entered the premises as trespassers. You had been trying to get your victim’s keys and then tried to get him to open the door. He had already to that point been physically assaulted. You dragged the victim into his own home. There was another man inside the house, a man named Lai. He was a friend of Truong’s and he tried to shut the door to prevent entry but you all pushed past him.
9 It was plain from the evidence given that this was not a social event or call. There was no question of being invited in. I do not accept for one moment that Mr Truong had any expectation of your arrival. He had none at all. It was a surprise visit.Nor for that matter did you think he was expecting your arrival. I reject your account provided to counsel in that regard. Your conduct at the scene was totally inconsistent with either position.
10 Ms Adrain who had been a passenger in Truong’s car saw enough outside the house to know that she should flee the scene. She did and flagged down a motorist and asked to be taken to the nearest police station. She arrived in an hysterical state. The police were notified of the event and attended in haste.
11 Plainly Truong was under attack outside the premises and that continued once he was taken inside. He was taken into his own house whilst in a headlock. You physically assaulted him in the lounge room as you had him pinned to the couch. In that position you continued punching him. Whilst telling Archie to get his wallet and keys.
12 It is clear that from an early point, even before entry to the house you were asking for the return of a sex ‘tape’. Those demands were made at the car and also inside the premises. It appears that you were friends with or more likely were then in a relationship with a woman named Helen Nguyen. She had previously stayed at this address as a tenant and she had left behind a number of her belongings including an SD card with some sexual footage of her and a past boyfriend. There is no doubt the SD card was at the premises. That is clear. As to why it was there, it is less clear. The victim was cross examined and it was suggested to him that he had refused to give it back, and was threatening to show it to others or distribute it to blackmail her. He rejected those propositions entirely in his evidence. He said he had rung her on one occasion to tell her to pick it and other items up and she had neglected to do so. It was put to the victim that on this day, in fact he had only given a blank SD card and not the one containing the footage. He rejected that. On that score, that Truong gave you a blank SD card on this afternoon, that is not what happened at all. Nor is it even what you told the police in your interview. Now you did not give evidence. No evidence was called from Helen. I am not satisfied that the victim had refused to give the tape back or had threatened to use it to blackmail Helen.
13 Returning to the incident, you kept punching Truong saying ‘where is the sex tape, give me the tape?” He said he would get it but you kept punching him. His keys were taken by Archie amidst this assault. You pushed Truong down the hall to the bedroom and recovered the tape. You asked for the copies. There were none. Meanwhile the other man Archie was going through the room looking for valuables. As well as the keys, an Iphone and one computer were taken and they are the subject of the robbery charge. I withdrew the other computer (the Macbook Air) from the juries consideration, owing to the deficiency in the evidence in relation to that one item.
14 The incident came to an end when Aneet heard the police sirens and yelled out “police police” and the three of you fled to the car and drove off passing the police in the nearby streets. The keys were seen ejected from the rear window of the car as it fled.
15 Your victim was found at the scene sporting some obvious facial injuries. He refused medical treatment as he had bad past experiences at hospital. I won’t act on the suggestion of a broken nose having been sustained in this attack. There is no medical material at all.
16 You were arrested on 10 May 2017 and have been in custody ever since.
17 The trial was conducted on the footing that though you had attended at the address and entered the house you had not done so as a trespasser or with the requisite intent. You were there purely to recover the tape and not to assault anyone or steal anything. You were invited in, there was no intention to steal or assault, no theft or robbery or taking of any items by you and no complicity with any other person in that regard. There was no violence. Though the fact of Truong sustaining injuries was admitted, you disputed that there had been any physical act causing them or intent to cause them. No pushing, punching, shoving or violence at all. An attendance, a request for the tape, an invitation into the house, recovery of the item and departure. That was all. It ignored the setting unmistakeably suggestive of menace or violence. The unheralded arrival, three men jumping out of the car as soon as the occupant arrived home, the very fact of there being three men, the movements at the car and towards the house, movements sufficiently concerning at that early stage to send Ms Adrain running for the police. There were the demands, the entry, the departure, the bloodstains. The later recovery of at least the stolen iphone from one of your associates. The evidence in support of an intent to assault existing prior to entry was simply overwhelming. Though recovery of the tape was undoubtedly part of the motivation for your attendance, the conduct inside and out spoke of that intent to assault. That is before even considering the intent to steal laid in the alternative. I told the jury as a matter of law that if they thought it possible that the intent upon entry was purely to take the tape, that would not satisfy the intent to steal.
18 You did not give evidence. The prosecution case was accepted by the jury which was hardly surprising. It was, as I say, an overwhelming case and it was hardly surprising that your instructions were rejected. You had made a lengthy rambling interview and though by agreement it was heavily edited, sensibly so, plainly there were many damaging admissions. You chopped and changed. At one point saying that Helen got the tape back somehow (314), at other points denying having been inside the house, or having any direct contact with Truong (see 335, 342) at other points describing attendance and entry, being half in half out, (568) at still other points describing being in the bedroom.
19 I don’t know why you chose to run a trial but it was your right to do so in exactly the same way as it was you young co-accused’s right through his counsel to sensibly negotiate a settlement of the matter and hence plead to lesser charges than ultimately you have been convicted of and receive, as he surely, will a significantly reduced sentence.
20 It was conceded by the Crown on his plea that he had the lesser role. That was obvious even on a cursory examination of the evidence and you accept that is so. He kept Lai at bay. He made up the numbers. You were the instigator, you had the relationship with Helen, you had at least some charter to recover the tape. You were making demands, you and only you were engaging physically. Plainly you entered intending to assault. It is exactly what you did both before at and after entry. You then committed the robbery and ICI. The taking of property was by virtue of the existence of an agreement. Obviously part of your charter was to recover the SD card. It is apparent, indeed Mr Polak submitted on the plea that you were also angry at Truong which when you think about it would make less likely still his inviting you in or you going there for a chat.
21 I entertain at least some doubt as to whether the jury was satisfied BRD as to the intent to steal existing prior to entry. I say that given the relatively brief time which elapsed between a jury question as to whether there was the need for unanimity in relation to both intents or whether unanimity in relation to one intent was enough, and the speed of the verdict after that question was answered.
22 I have no doubt they were satisfied BRD of your intent to assault. Also of course that you had at some point reached an agreement to steal and hence rob. That however may have been formed after entry. So maybe it is unduly charitable but I only interpret the verdict as their being satisfied of one of the intents, that is the intent to assault. It is not a matter of great importance. You entered intending to assault and once within, property was taken pursuant to an agreement reached and in circumstances amounting to robbery. The violence was delivered by you before, during and after entry.
23 You have been in custody from your arrest on 10 May 2017 until now with a period of 4 months or so related to another sentence imposed in the Magistrates Court last year.
Impact
24 Your victims have chosen not to make impact statements. However this was obviously a frightening and unpleasant event. The female occupant of the car Ms Adrain fled in fear. Mr Truong had three trespassers inside his house. He was assaulted outside prior to that entry and the violence continued inside the house. His house. Home invasions and aggravated burglaries are notorious for the impact they cause, the loss of the sense of security one is entitled to feel in one’s own home. I’m not going to speculate about any long term impacts here. I can’t. I take the impact of your crimes into account.
Mitigation
Your counsel, Mr Polak had prepared some very brief written submissions marked as exhibit 1. He raised a handful of matters in mitigation. There were in truth not many matters in mitigation.
· He spelt out very briefly your family background. It was spelt out in greater detail in the report of Ms Mynard a psychologist. He argued there had been a level of disadvantage in your early life and now regrettably long term institutionalisation;
· He relied upon that report;
· Your father is most unwell and this is troubling to you as you fear you may not see him again. Prison was not easy for a variety of reasons which he elaborated upon. He argued there was an increased burden;
· He placed before me your instructions as to the reason for attendance. I cannot accept those instructions. I am not satisfied that Truong was threatening to distribute the tape or that he gave up only a blank tape on the day in question. I do not accept that he was expecting you to arrive. I am satisfied BRD that he most certainly did not. Nor do I accept that your instructions that you thought he was on notice of your visit. Again I am satisfied BRD that was not so. Why was the tape still there? It might be said that if he was prepared and willing to give it up then it was strange that this expedition took place in the way that it did where recovery of the tape was plainly one of the purposes. As to how you learnt of the tape, as to what Helen had actually told you about the tape and why she said it was still at Truong’s, well it is impossible for me to know. You did not give evidence at the trial or on the plea. Nor did she give evidence. I have the sworn evidence of Truong in these areas. I suppose one possibility is that Helen has provided an inaccurate account to you as to her dealings with Truong. It would seem that they parted on not the best of terms. I simply don’t know. You provided a changing account of this whole escapade in the interview and one in part totally inconsistent with the suggestion now pressed that he only gave back a blank tape. At trial Mr Polak put all these allegations to the victim who rejected them outright. He put to the victim that he Truong had sent a text with an extract of the footage to a man named Ahmit. Again that was rejected. No evidence was placed before the jury as to the existence of such a text. The problem is the only version I have from you is the interview version which is replete with lies and half-truths. That and the instructions you give to your counsel as to believing that Truong was awake to the imminent visit which of course was complete nonsense when we examine what happened at the scene. I really am not able to act on anything you have said about this event. I am not satisfied on the balance of probabilities that Truong had refused to return the tape or even that you believed he had.
· As to the home invasion, I do accept that it was not a particularly professional crime. There was no great planning, no disguises or weapons employed.
· He argued that you had at least some prospects of rehabilitation, that there was a glimmer of hope thrown up by your partial attendance on a CCO in 2010 and completion of a CISP bail program;
· He argued in favour of a combination type sentence, namely a further term of imprisonment of up to 12 months with release onto a CCO. It was not a realistic submission and unsurprisingly the Crown challenged the availability of such an outcome.
Prosecution
25 Mr Pickering, who appeared on behalf of the Director of Public Prosecutions argued that such a disposition was not open. It was after all a confrontational entry with an intent to assault committed by a man with some relevant history before the courts. He took me to some of the principles set out in the case of Meyers. Whilst accepting that there was to some extent an increased custodial burden mainly owing to the predicament of your father, he submitted that one could only be very guarded as to your prospects of rehabilitation.
26 I will turn shortly to your background but before doing so make this very plain. It would usually be at this stage of my remarks that I would in an appropriate case deal with the mitigatory effect of a guilty plea and the presence of remorse. There are no such considerations in play in your case. You have pleaded not guilty as was your right and have no remorse at all. You have continued to argue the point even in the course of the plea choosing to interrupt counsel to protest as to the outcome and denouncing the chief prosecution witness Mr Truong. These very powerful mitigatory features related to a guilty plea and remorse which sometimes exist and did for instance in Mr Aneet’s case, have no role to play here. You are remorseless and do not think you have done anything wrong at all.
Background
27 I’ll turn only briefly to your background. It is set out very broadly in the written submissions marked as exhibit 1 as well as in far greater detail in the report of Ms Alison Mynard marked as exhibit 2. I have no reason not to accept any of this material dealing with your personal and family background. It was a pretty unusual and unsatisfactory background on any view of it, born in Vietnam in 1978, fleeing by boat with your father when 6 years old, leaving your mother and siblings in Vietnam and not catching up with your mother until in your 20’s. You have been very close to your father who worked very hard to support you though he is now in very poor health and that is deeply troubling for you. You were educated to year 10 and then left school. You have never had a job other than jobs in custody which you have enjoyed. Your brother was murdered many years ago and you are troubled by the sense of having perhaps led him astray. That murder has also posed some issues in terms of serving sentences. You have had sizeable problems with drugs over very many years. You are 40. You have a 7 year old daughter.
28 You started mixing with the wrong people as a youngster and that led in to fighting, drugs, the police and then the courts. Then inevitably it led to prison. Often. You are an Australian Citizen.
29 You have a lengthy criminal record, with many appearances and many sentences of imprisonment. There is no point my working through the history in detail in these reasons. There are many court orders breached by you over the years. I take your counsel’s point about the need to examine the record carefully to avoid duplications. He took me to some aspects of the record and the indent marked as exhibit 4 where it was clear that parole had at some points been denied. You were compelled to serve out the entirety of the last long sentence that you received with parole not being granted. You were released in February 2016 but were back in custody by May 2017. He stated that you would not be paroled in the future. That is merely an assertion. I have no idea about that. You have in the past been paroled and have on occasion breached parole. Presumably the Parole Board will assess your case at the appropriate time. I have no idea what they will do and cannot speculate one way or the other.
30 Your counsel took me to the limited chances you have had with community based dispositions and the limited support upon release over the years. That I am afraid is a state of affairs produced by the seriousness of the crimes you have committed in the past and the need to adequately recognise the relevant purposes of sentencing including specific deterrence. As long as the record is, the matters which I am dealing with strike me as sitting more than a rung or two up from your usual level of offending. It is an escalation. There is not much by way of violent offending. There is plenty of dishonesty offending and drug offending. It is obviously a relevant history and one that I must pay some regard to. The need for specific deterrence and protection of the community is pretty clear here. You must be deterred. Courts have tried. I will try again. I have to be realistic as to your future prospects of rehabilitation.
Ms Mynard’s report
31 There is the report from Ms Mynard. I see no need to set out portions of the report in my reasons. I act on it in the ways urged upon me by counsel. It is not relied upon by Mr Polak in any Verdins fashion. It sets out your background in detail and on that score, I’m not sure if I made it clear, but I do take into account what I judge to be your disadvantaged and unenviable formative background in mitigation of sentence. There was an uprooting from your home country and separation from your mother. Life was unusual as you grew up with a mother in Vietnam and a father in Melbourne. You didn’t feel like you fitted in or belonged (see Mynard’s report page 3). Also you had siblings who you hardly knew for many years. Then there was the oddness of your mother being present in your 20’s. Before you knew it you were in and out of Pentridge at a very young age. Since there have been many returns to prison. I fear you are institutionalised. It is a very sad background and I take it into account as far as I am able to.
32 The prosecutor raised some concerns as to the report and coverage of the psychological symptoms set out from page 4 including the claim of hearing voices and psychotic symptoms. It is true all these things are dependent on your report and it is hard to know what to make of it all. You are not a reliable historian in other areas. One would expect if these things existed there would be material placed before me from the Corrections file or justice health. On the other hand you have been in a segregation unit for a sizeable period and it can’t be easy at all. That is not to say you shouldn’t be there. Your other behaviour including fighting has produced that outcome. The report speaks of your anxieties, depression, uncertainties and sense of hopelessness and I take those opinions into account in a non Verdins fashion in mitigation of sentence as Mr Polak urges me to. You have now spent over 550 days in prison. 120 of those days were referable to the sentence imposed in the Magistrates Court in September 2017. I take those days into account in a broad fashion in the manner contemplated by cases such as Buddle. The label (Renzella or otherwise) is not important, rather the taking into account is and I do take that 4 months into account.
Increased burden
33 Prison is not easy for you. There is a sense of hopelessness no doubt produced in part by being back in prison yet again. It is disturbing. You have no visitors, you have little support and little by way of treatment. You have been segregated though it is plain that in part arises from your own conduct, see Mynard’s report page 4 (presentation). I am told that there are issues produced by being in the prison system at the same time as your brother’s murderer. Again there is the need for care in your management. That does not make it easy. Your father is very unwell and this is most troubling to you as you fear you may not see him again. I am afraid it is a realistic concern given the nature of his illness and the length of sentence demanded by these crimes. Mr Polak submitted that prison was not easy for these variety of reasons and that there was an increased burden. I accept that submission and take into account the increased burden here.
Rehabilitation
34 I turn now to your prospects of rehabilitation. Your counsel was impliedly arguing that you had at least some prospects. It really couldn’t be pitched any higher than that. He pointed to some positive aspects of a breached CCO in 2010 and completion of a CISP bail program. As positives go, they were pretty moderate and dated. Well I am not going to write you off but there is very little cause for optimism here. You are a mature man, one who has used drugs for close to 2 decades. One who has committed criminal offences for over 20 years. One who has breached all manner of court orders. One who has never held a paid job. One who despite all the prison terms imposed seemingly cannot be deterred and continues to offend. You need to make massive changes in your life and there is very little by way of support in the community. I am not optimistic. I am not prepared to find that you have no prospects at all but they are pretty slim. I can only be very guarded.
Parity
I turn to the concept of parity of sentence. As a general rule, like offenders should be dealt with in a like manner. So the same crimes committed by people of the same age and background and with the same history before the courts, ought result in the same or at least, a similar sentencing outcome. That is a gross simplification of the principle of parity of sentence, but it suffices for present purposes. It makes good sense. I have not yet dealt with Mr Aneet. When I do, though I have not yet determined precisely what to do with him, he will do far better than you by way of sentence. All things are not equal here. He has pleaded guilty. You ran a trial. He has pleaded guilty to different offences, aggravated burglary and RCI rather than home invasion, robbery and ICI. He had no role at all in the direct violence. His role was far more peripheral. You were the instigator. You recruited him for this ridiculous escapade. You were the driving force. That is conceded. He was still relatively young and with a very limited history before the courts. Having heard most of the pea already, I will conclude in his case that he has far better prospects of rehabilitation than you. There are differences that abound and which compel a far lesser sentence to be imposed upon him. You must and I am sure will understand why you will do far worse than him by way of sentence. The reason the principle of parity of sentence exists, is to promote equal justice and to remove any justified sense of grievance that may exist between co-offenders. It is not my task to deal with unjustified grievances which may exist. I can never do that. I have though, for this reason, explained why there will be very substantial differences in the sentences imposed upon you, when compared to your
co-accused Mr Aneet. Mr Polak in his submissions to me, recognised the appropriateness of there being very significant disparities in sentencing outcome here. There have to be.
The Offences
35 As to the offences themselves, your counsel conceded they were serious especially the home invasion. He pointed to the absence of sophistication and weaponry and the minimal planning in play here. Also the motivation to recover the tape and the fact that you were not a stranger. He argued that the home invasion was a low level example of the crime. I do not agree. At some points he said you had only gone there to talk and get the tape. It completely ignores the verdict and for that matter the evidence. There was obviously a level of rudimentary planning. You got together a crew. You describe as much in the interview. You all drove from one place to another and waited. You exited the car when your victim arrived. The ICI involved a deliberate attack upon your victim in the vicinity of and then inside his own home. It was not a transitory attack. Even though you inflicted the blows, he was outnumbered which made fighting back a difficult proposition. The physical injuries were however relatively minor.
36 As to the home invasion I accept that there will often enough be more serious instances coming before the courts. For instance night time entries with weapons and the like. It is still a relatively recent offence and it is a bit hard to gauge or find any current sentencing practice. Not that current sentencing practice is a controlling factor.
37 As I say, it is a relatively recent and prevalent type of offence representing a very disturbing trend in offending, which must be strongly denounced and deterred by the courts. The second reading speech spelt out the reasons underpinning those amendments. It spelt out the disturbing trend that had been noticed by Parliament and which had to be stopped.
38 It is an inherently alarming style of offence. One can find some guiding principles in the cases dealing with aggravated burglary. In the case of Meyers, to which I was referred, a number of considerations were set out as to the way a Court might asses the seriousness of that style of offence.
39 It included the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside, and whether the offender was someone of whom the victim was particularly frightened. Here there was joint entry, entry in company which was an element of the offence. Entry by the three men. It was a house as again it had to be for this crime to be made out, but it was not in the small hours of the morning but rather at around 5pm. There were no weapons or disguises. I am satisfied as the jury were that the group entered intending to assault. You entered with two others. You were taking in the owner but were aware also prior to entry of the existence inside of the other man who was trying to shut the door.
40 It is always a serious offence to enter residential premises as a trespasser as you did. You and your offsiders intended to assault. You were the driving force here. This sort of entry is dangerous. It is difficult to predict the end outcome. How can you know in advance how those who are or might be inside the premises may react to such a threatening and unpleasant situation? Home invasions or aggravated burglaries can and do escalate out of control. This was serious offending. I do not accept that it was a low level example of the offence. Your counsel pointed to the motivation of the recovery of the sex tape and your anger at that. The fact that you were not a stranger. Well every aggravated burglary or home invasion will have some motivation driving the entry. Sometimes it is financial. Very often there is some manner of grievance and a heightened emotional setting. Very often the intruder is not a stranger. Commonly they occur in the setting of breakdowns in relationships. There is not much mitigation to be had in the existence of a grievance and in any event here you entered intending to assault and once inside, property was also taken in circumstances amounting to robbery. The robbery was a separate crime and nasty enough in its own right. The ICI is clearly less serious than the home invasion but your role was central there. You were the person employing physical force. The injury was at a low level but the venue for that injury included his own home, a place where he was vulnerable owing to the superior numbers in play. It was a sustained attack. The suggestion made on the plea of your victim being a hardy or robust person is neither here nor there. It is by the way not my recall of his state at all. He was refusing to come to court on the second day of the testimony as he was too scared to leave his home. Secondly I note that he was asked questions in cross examination as to his personal state at TT pages 219-220 and he informed us that he was not employed, that his friends worried about him and looked after him as he lived alone and that he suffered from depression at the time. Even if he had been robust or hardy, it would not be greatly if at all, mitigatory.
Purposes
41 I have to consider a number of purposes of sentencing. I am required to impose a just and proportionate sentence in relation to your offending. I must also denounce your conduct. I don’t ignore your rehabilitative prospects though they strike me as being very slim.
42 I need to deter you from offending in the future. That is a significant factor here given the nature of the crimes and the nature of your past history before the courts. You must be deterred. Community protection is for the same reasons an important purpose.
43 General deterrence is also an important purpose. This court must send a clear message to other individuals in the community who might be minded to commit these serious crimes, ICI, robbery and particularly home invasions. We are sick of home invasions. Such conduct will not be tolerated by the courts and will almost inevitably be met with a sizeable term of imprisonment. That is because of the serious nature of the crime of home invasion.
44 I must pay regard to current sentencing practices. It is not a single controlling factor. There is not yet a sentencing snapshot for home invasions. I have looked at the Sentencing Advisory Council's Snapshot No. 211 of June of this year for the offence of aggravated burglary. Now, such statistical material always has limitations. It says nothing at all about the individual features of the offence or of the offender. Whether the matter was a trial or a plea. The most common sentence imposed involving incarceration for aggravated burglary hovered between 3 and 4 years. The average sentence imposed rose to 3 years and 3 months in 2016-17.
45 I have looked also at the case of Hogarth. That case provided guidance in relation to sentencing for the crime of aggravated burglary and included a large table of cases. There are some strong parallels with home invasion. It commented on the seriousness of confrontational aggravated burglary. This undoubtedly was a confrontational entry. It was a home invasion. Entry with two others with intent to assault and with knowledge of the presence of a person within the house.
46 That decision of Hogarth and many decisions since, including the cases of Whiteford [2016] VSCA 26, Meyers, Bowden and Maslen [2018] VSCA 90 make clear how seriously confrontational aggravated burglaries are to be viewed. Those views surely apply equally to the crime of home invasion.
47 You have committed a confrontational home invasion. A serious robbery and nasty enough ICI.
Combination disposition
Prison is unavoidable. There is no other option. The combination type disposition suggested by your counsel is simply not open here. It was not a realistic submission. The offending was far too serious. You have conducted a trial but frankly it would not have been open even on an early plea to the lesser alternatives in your case.
Such an outcome in the present case would not achieve the various purposes of sentencing including the need to deter you and others, the need to protect the community and the need to punish you. I must pass appropriate sentences and make orders as to appropriate levels of cumulation and arrive at a head sentence in this way. A Combination sentence is plainly not open to me. I will be required as a matter of law to fix a non-parole period. As I said earlier, I proceed on the footing that you will serve every day of the head sentence.
Totality
50 I have taken into account the principle of totality. There is obviously a strong relationship between the three offences before me. They all occurred in a tight episode. You and the others attended at the house. You were the driving force. There was the violence inflicted covered by the ICI which occurred both before and after entry. The home invasion involves the entry and then we have the robbery of someone who was vulnerable and outnumbered. Robbed in his own home. So 3 serious offences. Not every home invasion spills into other offending within the house. Some do, some don’t. Yours did. I accept that there can be some decent measure of concurrency employed here given the close link. However I cannot lose sight of the fact that the ICI and robbery were serious separate offences with separate elements, conduct and impacts.
51 I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you.
Sentence
52 Mr Lu, can you stand up please?
53 On Charge 1 on the indictment, home invasion, I convict and sentence you to 5 ½ years imprisonment. That is the base sentence.
54 On charge 3 robbery, I convict and sentence you to 2 ½ years imprisonment
55 On charge 5 ICI, I convict and sentence you to 15 months imprisonment.
Cumulation
56 I direct that 12 months of the sentences imposed on Charge 3 and 6 months of the sentence on charge 5 are to be served cumulatively upon the base sentence and each other.
Total effective sentence
57 This produces a total effective sentence of 7 years imprisonment.
58 I fix a period of 5 years during which you will not be eligible for release on parole.
Pre-Sentence Detention
59 In terms of strict section 18 PSD you have spent the period of 435 days in custody. That period is to be noted in the records of the court pursuant to section 18 of the Sentencing Act. I have though taken into account in a broad fashion the other 4 months during which you were held pursuant both to the sentence imposed for other matters and on remand for these matters. That is not to be declared under section 18 as it is not strict PSD but I do have regard to it in the manner earlier described.
60 Are there any other matters?
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