Director of Public Prosecutions v Lual
[2024] VCC 2043
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00639
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMANUEL LUAL |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2024 | |
DATE OF SENTENCE: | 13 December 2024 | |
CASE MAY BE CITED AS: | DPP v Lual | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2043 | |
REASONS FOR SENTENCE
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Subject:Sentence – CRIMINAL LAW
Catchwords: Aggravated burglary, theft of a motor vehicle. Victim impact. Young offender, escalating criminal relevant criminal history, personal background suggestive of real promise and reform, dead time following acquittal. Favourable CCO assessment. Late plea of guilty.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:DPP v Barnes [2015] VSCA 293; DPP v Meyers (2014) 44 VR 486; Comensoli v The Queen [2020] VSCA 2; R v Williscroft (1975) VR 292, 301; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; Ryan v The Queen (1982) 149 CLR 1; DPP (Vic) v Jones (a pseudonym) [2013] VSCA 330; DPP vMoustafa [2020] VSCA 331; Warwick v The Queen (2010) 201 A Crim R 580; R v Renzella [1997] 2 VR 88, 96-97; Boulton and others v The Queen (2014) VR 308; R v Novakovic(2007) 17 VR 21; Koukoulis v The Queen [2020] VSCA 19.
Sentence: Convicted and sentenced to combination sentence of 12 months imprisonment followed by 2-year CCO with conditions.
6AAA- 3 years 8 months with non-parole period of 2 years 6 months.
PSD of 359 days. Driver’s licence cancelled for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Singh | Office of Public Prosecutions |
| For the Accused | Mr P. Bloemen | Paul Vale Criminal Law |
HIS HONOUR:
Introduction
1Emmanuel Lual, you pleaded guilty to offences before me on 15 October 2024. These offences are:
(a) Aggravated Burglary (Charge 1), the maximum penalty is 25 years' imprisonment; and
(b) Theft of motor vehicle (Charge 2), the maximum penalty for which is 10 years' imprisonment.
2There was a respectable argument made by the Crown that you should be sentenced to a head sentence and non-parole period, though I am not taking that course today.
3I am going to sentence you to a combination sentence involving a term of imprisonment followed by a lengthy CCO that commences upon your release. That CCO will have conditions designed to punish you, to deter you, to denounce your conduct, and protect the community as well as giving you structure and assistance to help you achieve the reform I believe you are capable of.
4My reasons follow.
The Offending [1]
[1]Taken substantially from Exhibit A: Summary of Prosecution Opening for Plea dated 16 October 2024.
You and the Co-Accused:
5You were only 21 years of age at the time of this offending.
6Your co-accused in the matter, Lachlan Livingstone was 20. At the time of the offending, he was living in Frankston. He was arrested at the Fountain Gate Shopping Centre on Sunday 3 December 2023. [2]
[2]I will come to the issue of parity later in these reasons.
The victims
7The victims are all family members, who apart from Mahjabeen Mahjabeen reside together in the house you trespassed in and stole from. Younos Ghasimy was 36. His wife, Marzia is the same age. They have an eight-year-old son and a one year old daughter. Mahjabeen is the mother-in-law of Younos. None of the complainants know you, nor did you know any of them.
Circumstances of the offending:
8The offending commenced in the morning of Saturday 2 December 2023 at about 4.14 am, where you and an unknown male attended the Ghasimy family home in Narre Warren North. You and the unknown male offender gained entry to the property via the front door, believing it to be locked. (Charge 1 – Aggravated burglary person present).
9You and this male then searched the bottom level of the house for about 10 minutes before locating a set of car keys in a cupboard, belonging to a 2016 white BMW X5, parked in the garage and belonging to the owners.
10You then ran from the address on foot, before the unknown male entered the X5 wagon and drove off from the property by reversing it up the driveway (Charge 2 – theft of motor vehicle).
11At the time of the offending, the parents and their young children were all asleep upstairs.
12Between 9 am and 10.00 am, Mr Ghasimy and his family awoke and noticed the X5 wagon was missing. He searched the address for the keys and discovered that they too were missing. He reviewed his internal closed circuit television camera (CCTV) and observed two men enter his residential address at 4.14 am and steal the wagon. One of them was you, though you denied that at the time you were interviewed until the very eve of the trial.
13The CCTV footage depicts you and the unknown male entering the property via the front door. The unknown male enters the address first, before you enter shortly after him. You and that male are described as:
(a) you wearing a grey beanie (with black and white insignia on the front), black jacket, black shoes, white/cream pants, gloves and black shoes; and
(b) the unknown male wearing a black ski mask, puffer jacket, black shoes and grey pants.
14The footage depicts you and the unknown male walking through the downstairs area of the house. You, at one stage, appear to show the unknown male offender an item, which is believed to be the keys to the car.
15You exited the address via the front door, before coming back 30 seconds later, believed to have been checking if the keys worked for the X5.
16You are seen exiting the front door approximately one minute later, jogging off from the house, before the unknown male is observed reversing the wagon out of the garage, away from the property.
17On Saturday 2 December 2023 at 8.34 am, you, Livingstone and the unknown male attended the Fountain Gate Shopping Centre at Narre Warren in the stolen X5.
18The three of you drive the vehicle into one of the underground car parks, parking the car shortly then exiting and walking into the Shopping Centre. You all then return to the X5, before leaving the Shopping Centre at about 9:16 am.
Investigation and Interview
19On 7 December 2023 at 5.15 am, First Constable Thomas Moore located an outstanding stolen 2013 black Holden Calais outside the front of a house in Half Moon Crescent, Pakenham. It is not alleged you were involved in the theft of that vehicle but inside the Calais were the registration plates of the X5 and those plates were forensically examined.
20I am told the X5 was ultimately recovered, with a relatively modest sum being outstanding from the owner in terms of insurance premium.
Forensic Analysis
21On Tuesday 12 December 2023, you were forensically linked to the recovered stolen registration plates from the X5.
Arrest
22You were arrested on 20 December 2023 at about 11.00 o'clock when Police attended the Ampol Service Station in Baxter-Tooradin Road, Baxter. You were in the company of three others. You were transported to Mornington Police Station for interview.
Record of interview
23You were interviewed by Police that morning.
24You made some admissions, admitting you were in the stolen X5 (although not initially from the point of its theft), confirming that the Fountain Gate Shopping Centre CCTV footage did indeed depict you wearing a grey beanie with a black and white insignia on the front, and wearing cream pants.
25You otherwise denied being at the property and maintained that you had purchased the beanie at the Universal store after entering the Fountain Gate Shopping Centre. That you continued to deny the obvious even when confronted with the truth of what you did on the CCTV was so obviously driven by self-interest in avoiding consequences for your criminality. It was as shameful as it was absurd.
Victim impact
26A powerful, articulate victim impact statement was just read in court.[3]
[3]Exhibit B: Victim impact statement of Younos Ghasimy dated 8 December 2024
27Unsurprisingly, Mr Lual, your offending has had a profound impact on Mr Ghasimy and his family. You caused him serious harm, financially and psychologically for no justifiable reason other than your own selfishness and immaturity. More than a year on from your offending, he still struggles with sleep and remains on edge. He says his wife suffers from sleepless nights and now monitors the household security cameras with persistent anxiety. His young son now becomes extremely anxious at the smallest of sounds. An otherwise normal and happy household has been reduced to one of fear, anxiety and an overwhelming sense of violation. You have challenged what he described as the fundamental belief that one's home is a safe space.
28He makes a plea for justice, of course. That is a balancing exercise that requires you to be punished, but that is not the only facet of this exercise.
29The impact that you have had on these victims will be reflected in the sentence I impose.
Matters personal to you[4]
[4]Exhibit EL1: Outline of plea submissions dated 15 October 2024.
30You were born in March 2002. You were 21 years of age at the time of the offences and are still only 22. You were residing in Pakenham.
Biographical details and education
31You were born in Kenya and your parents moved to Australia when you were two in search of a better life. Your parents attended the plea as they have attended sentence. They were so self-evidently decent, hardworking people. Your criminal behaviour runs contrary to the way that you were raised.
32You grew up in a close loving family with seven siblings between the ages of six and 19. As educated migrants in Australia, your father works as a Community Mental Health Practitioner and your mother as a childcare worker.
33You attended primary school and completed Years 7 and 8 at Traralgon before commencing Year 9 at Saint Francis Xavier College. You completed VCE in 2019 with an ATAR score of about 72. You were aiming for a score that would allow you to undertake a sports psychology course at university. You applied for such a course but unfortunately never persisted with it.
34Despite the setbacks I am about to come to with respect to furthering your education, it should be noted that whilst you have been in custody, you have completed five of six months of a Certificate 3 in Engineering.
Early adulthood and adolescence
35During your later school years, between 14 and 17, you played soccer at a very high level for the youth side at Melbourne Victory. You stopped playing due to a fracture of your lower vertebrae and after this injury, you never resumed.
36One wonders what might have become of you had you not been injured. You had a very respectable ATAR score. You could clearly function in a disciplined way in a team sport at a very high level. There are obvious positives to you having these kinds of attributes not so long ago and I hope that you can draw on your talents and promise through the order I am about to impose.
37Whilst you spent your free time during the latter years of high school smoking cannabis with friends, you were never involved in any offending or the otherwise negative associations that burdened your early years of adolescence.
38In 2020, after completing VCE and taking a gap year, you continued to use drugs and then commenced associating with other young men who were also using drugs. You were at this stage using methylamphetamine, GHB and MDMA.
39In the same year, you completed a short TAFE course and commenced work as a bricklayer but the COVID pandemic in March of that year cruelled that chance and made it difficult for you to further your education and gain more employment.
40Instead, you continued to associate yourself with young men who you regarded as your 'crew' and after being kicked out of the family home these were the young men that you were involved in. They were involved in offending for financial gain and drug use. Without being too unkind to them, I suspect they did not hold the promise that you do.
41Being young and impressionable, you felt respected by the older members of this so-called crew and felt that you were part of something. You were introduced initially to minor offending such as shop thefts which quickly progressed into the infancy of your short but now significant criminal history that followed. This group mentality was a poor substitute for the team environment you might have enjoyed at Melbourne Victory.
Criminal history and onset of offending
42You have a relevant and recent prior criminal history, including previous aggravated burglary and theft of motor vehicle charges. Given the premium you apparently placed on maintaining relationships you formed with your crew, it is no surprise that an escalation of your offending began in April 2020.
43Then you were remanded on aggravated burglary charges for which you received a CCO in July of that year.
44After your release, and far from being deterred, you commenced an association with a different group of people this time. This time it was those you had connected with during your short stint in prison. These associates were regular users of methylamphetamine and introduced you to that drug. This is a fear that is realised about the corrupting influence of adult custody.
45The group were also involved in property related offending under the influence of methylamphetamine which resulted in your introduction and use of other drugs, including GHB and Xanax to 'counter' the impacts of ice.
46You were remanded in October 2020 for aggravated burglary and released on a second 18-month CCO in December of that year. This offending breached the July 2020 CCO placed on you which was later confirmed.
47You attended nine out of 15 supervision appointments and participated in various programs in late 2020 as part of this CCO and it is of no surprise your assessors were of the view that negative associations and drug and alcohol were a major risk factor for you in terms of reoffending.
48In March 2021 to July 2021, you were remanded for trial, then granted bail as part of CISP, then remanded again in July 2022 for yet further offending where you remained in custody until September 2023. You were acquitted for that matter on trial, and I will return to the topic of ‘dead time’ in the later part of my reasons.
49To your detriment, after being remanded in March 2021, and despite a positive start to the CCO, you were unable to complete the remaining order requirements and you were breached both for non-compliance and further offending. The CCO breaches were dealt with during your remand for the previous trial matter. No further orders were made on the breaches.
50You have, I should add, an unenviable history of theft of motor vehicle offences, driving whilst intoxicated or drug affected, speeding and other offences to do with driving.
Physical health
51In addition to your poor choice of friends, in 2020/2021 you were the driver in a serious motor vehicle accident. You suffered significant injuries including fractured ribs, punctures to your lungs, and a small cut to your heart. You were hospitalised for three weeks and suffer from ongoing breathing difficulties.
52ECG scans confirm your heart is properly healed and there are no known complications, but you report to your counsel that as a result of that car accident you continue to suffer from nightmares and wake up having some difficulty breathing.
Mental health
53You report suffering from severe depression, social anxiety, drug dependency and Post Traumatic Stress Disorder ('PTSD'). You are prescribed Mirtazapine to treat your depression and Sublocade as part of your buprenorphine treatment.[5]
[5]Exhibit EL4: CCO assessment report dated 8 November 2024, 12.
54Your PTSD commenced after you were 'jumped' by a group of men that you were associating with in 2019. You have not associated with them since, but believe this event exacerbated your anxiety and depression. The car accident that I referred to in 2020 contributed further to your decline in mental health. You describe experiencing nightmares, panic attacks and have attempted suicide on three occasions via drug overdose. Fortunately, you believe your medication is working and as a credit to the courses you have completed in custody, you have developed strategies to deal with the fluctuations in your mental health.[6]
[6]Exhibit EL4: CCO assessment report dated 8 November 2024,10.
Prospects for reform
55You continue to have strong familial support, and you have been able to further your education in custody.
56In addition to the Certificate 3 in Engineering you are currently undertaking, you have also completed a Certificate 3 in Hospitality, 'Check your Thinking', 'Ice and Me' courses and others whilst on remand. It is evident that you are capable of furthering your education and have quite the aptitude for learning despite the hardships of being within prison.[7] Though you have no concrete plans as to your future, save for your desire to undertake further study, it is plain that you have ambitions for a crime-free future and are making the most of your time in remand to find a calling that you are passionate about.
[7]Exhibit EL2: Bundle of certificates.
57During your time in the community, you formed a relationship with your partner Chelsea, who is studying nursing and working as a cosmetic nurse. She continues to support you and has visited you regularly during your 10 months or more on remand. She is invested in you. She has attended the plea in support of you. She has ostensibly accelerated your maturity. It was submitted on your behalf you are now 'thinking different' and sick of the 'merry-go-round' of offending and incarceration that has punctuated your last four years.[8]
[8]Exhibit EL1:Outline of plea submissions dated 15 October 2024, 8.
58You are, it seems to me, gaining the kind of insight one would naturally expect with maturity. Crucially, I am told that you have had time to reflect upon your offending and the difficulty and stress you have caused your family, and perhaps more importantly, those that you have offended against.
59Your parents are remarkable. They continue to support you. They attended the trial that you were acquitted of and again at these plea proceedings. Your father gave viva voce evidence during a previous bail application that he was willing to have you live in the family home under conditions. He was willing to supervise and monitor you and those who you associate with and remain supportive of any undertaking for further education and employment. That situation still exists.
60You need to understand your parents have your best interests at heart. Without them being the protective factors that they are, your path towards reform would be more challenging.
61You are the eldest, as I said, of eight children. I implore you to take this opportunity to demonstrate to your family that you are willing and able to correct the course that your life has taken.
62I accept the path to reformation for a young man such as you is not always linear or in an upward trajectory. I repeat that under certain circumstances, Mr Lual, you seem to be able to prosper, offering the community some hope for your reform. You are, in my view, worth persisting with in the community under supervision to assist your reform, which is, after all, the most enduring form of community protection.
63If you can be guided and supported through the auspices of a CCO, away from pointless self-defeating associations and challenge your energies elsewhere, I believe that you can be reclaimed.
Matters of sentencing principle
Aggravated burglary and theft
64The most serious offence to which you have pleaded guilty is obviously the aggravated burglary charge. It is recognised by Parliament as a serious offence, which is reflected in the maximum penalty available to me which is to send you to adult prison for 25 years' imprisonment. Plainly, however, aggravated burglary offences are committed in a wide range of circumstances and, as has been recognised by the Court of Appeal, an aggravated burglary would rarely attract a sentence near its maximum, given the available maximum penalties attached to serious offences that may be committed after entry.[9]
[9]DPP v Barnes [2015] VSCA 293 at [46] per Croucher AJA.
65The assessment of the offence seriousness depends on the presence or absence of various potentially aggravating features as identified in Meyers.[10]
[10]DPP v Meyers (2014) 44 VR 486, 498 [47]–[49]; [2014] VSCA 314 (Maxwell P, Redlich and Osborn JJA).
66You conducted the aggravated burglary at night, you entered the premises with another, via the unlocked front door. I can readily infer from your plea and the steps taken to hide your identity and how you conducted yourself within the premises that you had an intention to steal at the very point of entry. You avoided the upstairs area of the house where the occupants slept and focused your search exclusively on the likely location of the keys to the car. Fortunately, you were not armed.
67But it ought to have been obvious to you that at least one child lived in that house as you stepped through the front door, over the novelty 'train track' themed carpet at the doorway. Indeed, you would have been left in little doubt of this fact after you, and your co-accused, entered a living room filled with children's toys. Despite the risks of being confronted by an adult or child, you continued your search for the keys until they were found. It is extremely fortunate that the occupants of this house were not disturbed and remained oblivious to the burglary until they were contacted by the bank the next day. That being said, finding out the next evening that young men like you were skulking about on the ground floor of their home, all whilst they were asleep, was unnerving, to say the least. It is why offences like this disturb people's sense of security and safety. If there was any doubt in your mind about how this behaviour affects people, Mr Lual, you have now heard it directly from Mr Ghasimy.
68I have had regard to the additional mitigatory factor identified by your counsel, Mr Bloemen. That is, this is a particular species of aggravated burglary that is capable of being dealt with summarily, that is to say in the Magistrate's Court.
69Ultimately, Mr Bloemen submitted that this example of aggravated burglary is at the lower end in terms of its gravity. Your offending fits neatly within what is known as the archetypal aggravated burglary[11] whereby you enter premises intending to steal, well aware that there is likely to be someone present. Invariably, such offending as this involves a terrifying experience for victims, it threatens as I said the community's sense of security.[12] I accept the relative seriousness of your offending is diminished by the absence of a weapon and the very fortunate fact that no occupant of the house was confronted.
[11]Comensoli v The Queen [2020] VSCA 2.
[12]R v Williscroft (1975) VR 292, 301.
70Notwithstanding the impact of the aggravating features on the overall seriousness of the offence, they do not, in my view, elevate your offending above what your counsel submitted is 'a lower end example' of the offence.[13]
[13]Which is a regrettably crude way of placing inherently serious offending of this kind in a spectrum of offences.
Youth
71You are still only 22. This renders you ineligible for Youth Justice Centre (YJC). You still fall to be sentenced as a young offender.[14] Accordingly, your rehabilitation is a paramount sentencing factor that ought to be given more weight in the sentencing calculus.[16]
[14]R v Mills [1998] 4 VR 235.
72Age is of course significant. Youth is important in the synthesis and should be a primary consideration where it properly impacts upon any assessment of moral culpability, the deleterious effects of adult prison, and the emphasis that I must place on rehabilitation. While this offending is obviously serious and general deterrence is relevant, it has to be weighed against the significant weight to be given to the principles governing the sentencing of youthful offenders.
73In Azzopardi v The Queen, the Court of Appeal identified the “considerations which underlie the general primacy of an offender’s youth as a sentencing consideration” as follows:
(a) First, the court said, “young offenders being immature are therefore more prone to ill-considered or rash decisions. They may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.”[15]
(b) Second, “courts recognize the potential for young offenders to be redeemed and rehabilitated. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on the realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.”[16]
(c) Third, “courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.”[17]
[15]Azzopardi v The Queen [2011] VSCA 372 at [34].
[16]Ibid at [35].
[17]Ibid at [36].
74The Court in Azzopardi v The Queen then went on to consider the above considerations in the context of crimes that are particularly serious or persistent in nature.[18] The court concluded that 'only in circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.[19] It is submitted in your case there are strong prospects for rehabilitation and the mitigatory considerations regarding youth are not extinguished.
[18]Ibid at [37]–[40].
[19]Ibid at [44].
75It is acknowledged there are limitations to the value of youth on sentencing where the objective gravity of the offending is particularly grave but the current offending before the court is not of a kind where the sentencing objectives relating to the offending outweigh the principles associated with sentencing young offenders.
76Whilst your criminal history challenges this proposition, it does not displace the principles in Azzopardi to the extent that would require me to ignore your youth. In reaching this conclusion, I have had regard to your two prior convictions for aggravated burglary in 2020. You were 20 years of age at the time of that offending. Ultimately in both instances, you were remanded and sentenced to a CCO. I am told that you have formed negative peer associations after your first stint on remand in 2020 and I have alluded to that already. It confirms what we already know. Adult prisons are not particularly well known to be reformative places for impressionable young men.
77Despite the premium you have placed on maintaining anti-social friendships, you have recently exhibited a willingness to engage in supervision and participate in programs tailor-made for your reform. This must continue.
Plea of guilty and remorse
78Your plea came late. Very late actually[20]. I maintain what I indicated at your plea having regard your committal (informant only) proceedings. It was conducted as a necessary forensic exercise to determine the strength of the case against you. You are not to be punished for that, but the strength of the case against you would have been obvious to everyone, especially you even at that stage.
[20]This last-minute resolution did involve the withdrawal of a home invasion charge in favour of an aggravated burglary charge, which is of some movement.
79Your plea carries real utilitarian benefit due to the savings it makes for the court, the Crown and witnesses, both in time and human expenditure of energy. It is an important sentencing factor and demonstrates, finally, your willingness to accept full responsibility for the offending and to facilitate the course of justice, as well as demonstrating a degree of remorse.
80The discount that applies to pleas of guilty will be reflected in the sentence I impose.
81It is clear from the combination of your plea and the comments made at the CCO assessment that you do understand the impact of your offending on victims and the community. You rightly express remorse, shame and regret, as you well should. You acknowledge your previous attitude towards offending, that you just entered the house for the car and not to ruin it, which ignores of course the trauma you caused.[21] You are now aware of how this offending impacts the public's perception of safety, noting that this type of offending is a 'big thing' in the public conscience at the moment.[22] You also expressed legitimate shame for the disappointment you have caused your family.[23]
CCO assessment[24]
[21]Exhibit EL4: CCO assessment report dated 8 November 2024, 3.
[22]Exhibit EL4: CCO assessment report dated 8 November 2024, 3.
[23]Exhibit EL4: CCO assessment report dated 8 November 2024, 3.
[24]Exhibit EL4: CCO assessment report dated 8 November 2024.
82You were assessed for a CCO over four interviews spanning late October and early November 2024. As a result of your candidness, I was furnished with one of the most comprehensive and useful reports I have ever seen.
83You presented as polite and forthcoming to the assessor. You appeared to be in a contemplative stage of change, speaking frankly to the assessor about your motivation to change and properly engage with community supports offered by a CCO.
84You demonstrated insight into your historical CCO non-compliance, noting that your previous engagement with keeping such orders was limited because of your age and the friendships you were keeping.[25] You have correctly identified these factors as contributing towards your further offending over that period.[26]
[25]Exhibit EL4: CCO assessment report dated 8 November 2024, 5.
[26]Exhibit EL4: CCO assessment report dated 8 November 2024, 5.
85Appropriately, you were asked what would be different if you were afforded a further CCO now and I consider your response to that question particularly promising. You reported that you have matured much more and want to take a CCO seriously in that it would benefit your 'change'.[27] Perhaps most revealingly, however, was your statement that you are 'at the point now [where] I have accepted everything and taken it much more seriously and I want to change'.[28]
[27]Exhibit EL4: CCO assessment report dated 8 November 2024, 5.
[28]Exhibit EL4: CCO assessment report dated 8 November 2024, 5.
86I am very much guided by the thoughtful considerations recommended in part of the CCO report and it should be apparent as I progress through them, that they all serve a very specific purpose in furthering the relevant sentencing objectives.
Supervision
87Supervision was recommended to address what was identified as your 'medium' to 'very-high' risk factors. Corrections Victoria will monitor and supervise your adherence to the conditions of your order. You ought to be judicially monitored, where the Community Corrections Service will report to me about their supervision of you. Specifically, concerning your companions, employment, drug use, use of spare time and pro-criminal attitude.[29]
[29]Exhibit EL4: CCO assessment report dated 8 November 2024, 6.
Judicial Monitoring
88The Judicial Monitoring condition is designed to provide judicial oversight of your compliance with the CCO and to keep you accountable.
Unpaid community work
89You do not believe the injuries you sustained from your car accident will impact your ability to comply with community work conditions.[30] And while I agree with Corrections that some treatment hours should be credited towards the unpaid community work condition, I do believe it is important you undertake community work given your acceptance that your type of offending is a 'big thing' in the public at the moment.[31] In that sense, it is appropriate that part of your punishment should be public.
Treatment and rehabilitation[32]
[30]Exhibit EL4: CCO assessment report dated 8 November 2024, 13.
[31]Exhibit EL4: CCO assessment report dated 8 November 2024, 3.
[32]Exhibit EL4: CCO assessment report dated 8 November 2024, 8.
90Your treatment and rehabilitation are critical to your reform. Drug use has permeated your life since you left school. You believe your current remand has assisted you in taking steps in the right direction towards abstinence. Positively, you attribute part of this to the alcohol and drug courses you have undertaken in custody.
91The treatment and rehabilitation component of a CCO will be all-encompassing. It will include drug abuse (including testing), medical treatment and mental health and offender behaviour program conditions.
92Regular drug screening will accompany supervision discussions around safety planning, relapse prevention and how substance use may impact your goal.
93You will also engage with a general practitioner as part of a medical condition to explore pharmacotherapy/pharmaceutical treatment upon your release and transition from custody.[33]
[33]Exhibit EL4: CCO assessment report dated 8 November 2024, 8.
Non-association
94You attribute much of your own offending and criminal history to the company you have kept. The entirety of the blame cannot fall on those you associate with. You report upon your release from custody in September 2023, you enjoyed a brief period of sobriety when you were living with your parents before falling into the same cycle of poor association and drug use. You then ceased living with your parents and that only led to further problems for you.
95Notwithstanding your insight into how your associations inevitably lead to drug use and further offending, you have seemed until now unable to resist the urge to reconnect with old friends. My advice to you is, resist that urge.
96The non-association clause will operate in conjunction with the curfew and residential restriction conditions to limit your ability to fall back into the same negative habits that you appear to be aware of.
Residence restriction and curfew
97The support your family has offered you is critical to your reform. You are aware of this, noting your release from custody last time when you remained abstinent from drugs for months is attributable to you living at home before, as I said, reconnecting with others that you thought that you had 'left in the past”.[34] It is clear that despite the support of your family, your prospects for reform are hampered when you maintain those anti-social associations.
[34]Exhibit EL4: CCO assessment report dated 8 November 2024, 8.
98Accordingly, residential, curfew and non-association conditions of a CCO were identified as protective and would serve to ameliorate the risk to reform that have plagued you in the past.
99It is worth stating now that I agree with this. It is clear that you can prosper when you are living at home under the right conditions, that is, with the support, guidance and oversight of your family. Equally as clear it is now to you, it should be obvious that your life unravels very quickly when you leave the family home. Your parents confirm that should you breach any condition of this order, they will not hesitate to report you.
100You report having discussed the practicalities of these conditions with your partner and indicate that should your parents not permit her to stay during the curfew hours, you would respect that decision. I believe this does go further to demonstrate the insight that you have and the respect that you have for your parents. [35]
[35]That respect is necessary if you are to live there and accept their guidance.
Totality
101I am mindful of the significance in this case of the application of the principles that requires me, when sentencing you for multiple offences, to ensure the total term I impose is just and appropriate, according to the measure of the total criminality involved.
102Given that I am imposing a combination sentence[36] one can safely assume I have considered general propositions as to totality and cumulation and proportionality when coming to the decision that I have.
Moustafa[37] and ‘dead time’
[36]Section 44 Sentencing Act 1991, see also s.40.
[37]DPP v Moustafa [2020] VSCA 331.
103The Court of Appeal has described 'dead time' as a period of time that, with the benefit of hindsight, should not have been served. It is relevant to time spent on remand on charges of which an accused is later acquitted.[38]
[38]Warwick v The Queen (2010) 201 A Crim R 580, 583 [8], 585 [17]; Moustafa, ibid
104In DPP v Moustafa, the Court of Appeal commented:
Plainly, as has repeatedly been made clear, the period treated as relevant to dead time should not be approached 'with mathematical precision'. In Karpinski, it was noted that the more recent approach, has been to allow something less than the entire period of
pre-sentence detention, and certainly it is not necessary to credit the whole of that period.105The Court continued:
Plainly, there are some circumstances where it would be quite wrong to give credit for the entire time spent in custody in respect of unrelated offending. As previously noted, an offender who had served a very long sentence, before ultimately being acquitted on appeal, would be entitled to almost free rein in terms of committing any further serious offences if dead time were automatically treated as fully applicable.
106Here it is submitted on your behalf that I take into account the time that you spent on remand in 2022/2023 in a 'Renzella discretion'[39] type capacity. That is, the 418 days (around 14 months) you spent in custody before your eventual acquittal on unrelated offending ought to reduce your sentence by an amount appropriate in the circumstances.
[39]R v Renzella [1997] 2 VR 88, 96-97.
107I accept that submission and can indicate that the principles of 'dead time' will be reflected in the sentence I impose. It will not be done with mathematical precision, nor does it need to be, but it does operate to reduce the amount of time required to be spent in custody.
Parity
108I have had regard to your co-offender, Mr Livingstone, who pleaded guilty to the theft of the motor vehicle alone.
109I am mindful of parity given it is an important role in ensuring consistency in punishment. I do not approach this task mathematically either or consider it requires the identical treatment of you and Mr Livingstone, because it cannot.
110
Any significant differences in the sentence must be rationally explained. I hope I have already done so. I have very limited information about Mr Livingstone. Specifically, his background, criminal history, health and character are unknown to me. I must, and can only, assess his role in the offending as less than yours. After all, he did not plead guilty to aggravated burglary. The identity of your
co-offender during the burglary remains a mystery, partly I suspect because of the premium you place on friendship (or 'the crew').
Submissions on penalty
111It was submitted on your behalf there is a way for me to impose a just outcome that reflects the gravity of your offending, and the importance of general deterrence and denunciation, whilst still striking the right balance in terms of facilitating your reform.
112Mr Bloemen submitted that taking into account the aggravating circumstances of the offending as well as your criminal history, in order to properly achieve the relevant sentencing considerations, a combination sentence comprising of a term of imprisonment together with a CCO is open.
113Mr Singh submitted (and rightly so) that this was a disturbing, serious, planned offending, in company occurring in a family home at 4 am. That, and given your prior criminal history meant that a head sentence and non-parole period ought to be imposed.
Analysis
114Having balanced and weighed the necessary considerations, in my view the combination of your youth, prospects for rehabilitation, plea of guilty, and making a proper allowance for the 14 months of 'dead time' as well as your suitability for such a disposition compel an outcome of a combination sentence being imposed.
115The combination of a term of imprisonment and a CCO provides a more flexible sentencing option, enabling both punishment (and I pause to note that is part of the dispensation of justice that the victim has urged me to take) and rehabilitation purposes to be served together.
116That principle was expressed in the way I have just mentioned in Boulton:[40]
'This significantly diminishes the conflict between sentencing purposes,
particularly acute in relation to young offenders. No longer will the court be
placed in the position of having to give less weight to denunciation, or
specific or general deterrence, in order to promote the young person’s
rehabilitation. Rather, the court will be able to fashion a CCO which
adequately achieves all of these purposes.'
[40]Boulton and others v The Queen (2014) VR 308.
117It appears to me that I can denounce your conduct, punish you, deter you and others, and foster any conditions that might assist in your reform by imposing a combination sentence comprising of a term of imprisonment first, then followed by a CCO with lengthy and onerous conditions.
118It seems to me that you are maturing, and you are on the cusp of consolidating significant milestones in your life. With guidance and the benefit of a wide range of supports under the auspices of a CCO, it is hoped the community can be protected long-term in the most enduring of ways, and that is through your reform.
119Make no mistake, the CCO I impose will be lengthy and will require your ongoing commitment. It is tailored to your needs and restrictive in its operation. In many ways your life will simply not be your own for the next two years. You will be subject to this Court's supervision until the end of 2026, that is to say more than three years after you offended.
120It is aimed at addressing the very behaviours and negative peer associations that have plagued your life over the recent years.
121You will benefit immensely if you apply yourself in the same way that you have dedicated yourself to personal development whilst on remand.
Sentence
Combination sentence
122Providing you consent, I intend to convict and sentence you to a term of imprisonment of 12 months, followed by a two-year community corrections order.[41]
[41]Section 44 Sentencing Act 1991, see also s.40.
123Every community corrections order, including this one, contains core conditions and they would be:
(a) you must not commit another offence punishable by imprisonment during the period of the order.
(b) you must comply with any obligation or requirement prescribed by the regulations.
(c) you must report to, or receive visits from, the Secretary during the period of the order.
(d) You must report to Pakenham Community Correctional Services within two working days of the commencement of the order (that is to say your release from prison).
(e) You must notify the Secretary of any change of address or employment within two working days after that change.
(f) you must not leave the state of Victoria, except with written permission from the Secretary.
(g) you must comply with any direction given by the Secretary necessary for the Secretary to give, to ensure that you comply with the order.
124Conditions that apply in addition to the mandatory ones are helpfully informed by the recommendations of the CCO assessor:
(a) That you be subject to supervision by the Office of Corrections. [42]
[42]Section.48E Sentencing Act 1991.
(b) You complete 120 hours of unpaid community work over the duration of the order[43]
(c) In order to encourage you, I propose to order that 40 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(d) You will undergo assessment and treatment (including testing) for drug abuse or dependency as required. [44]
(e) You will undergo medical treatment as directed, in the form of engaging with a GP within the first month of release regarding pharmacological/ pharmaceutical treatment for illicit drug use and the review of prescription medication under a mental health plan. [45]
(f) You will undergo assessment and treatment for mental health as directed[46]
(g) You will engage in offender specific behaviour programs conditions as directed[47]
(h) You will not associate with Lachlan Livingstone [48]
(i) You are to reside at your family address for the duration of the CCO. [49]
(j) You will be subject to a curfew, that is you are to be at your family address between the hours of 10 pm and 6 am every day for the first six months of the order. [50]
(k) You will be judicially monitored by me.[51] The first appointment for that will be on 13 February 2025 at 9.30 am.
[43]Section s.48C. See also s.48C(A).
[44]Section 48D (3)(a).
[45]Section 48D (3) (d).
[46]Section 48D(3)(e)
[47]Section 48D(3)(f)
[48]Section 48F.
[49]Section 48G. If the family moves, then there will need to be an application to vary to the order.
[50]Section 48I (2)(a)(3).
[51]Section 48K.
125If you were to breach this order in any way, either by committing an offence or by not complying with any single core condition or any single special condition, you would be charged with breaching the order.
126A breach of a CCO itself carries a maximum penalty of three months' imprisonment but that would be the least of your concerns, Mr Lual. If you were to breach the order you would come back before me, be sentenced for the breach and then you would be resentenced for the offences of aggravated burglary and theft of motor vehicle. You would not want to know what would find out if that eventuality occurred.
127I can only impose such an order if you consent. Do you consent?
128OFFENDER: Yes, I consent.
Ancillary Orders
129HIS HONOUR: I will order a compensation order in the sum of $2,200 in favour of Mr Ghasimy.
PSD
130The amount of pre-sentence detention I declare is 359 days, which will be reckoned as having been served in satisfaction of the sentence, the custodial aspect of the sentence I have just imposed.
Drivers licence
131Having pleaded guilty to theft of a motor vehicle, under s89(4) of the Sentencing Act 1991, I declare that any drivers licence you hold would be cancelled for a period of 12 months. Your criminal history, insofar as it concerns motor vehicles, is poor to say the least. It is necessary for me to impose such a long period because of the nature of your offending and history. I understand that this will to some degree impact your life once released and it is designed to do so. It may make life more onerous for you to travel to make your commitments imposed under the CCO. That disruption to your life is both necessary and unavoidable.[52]
[52]I have had regard to the principles in R v Novakovic(2007) 17 VR 21, and Koukoulis v The Queen [2020] VSCA 19, when arriving at this period.
s.6AAA
132But for your plea of guilty, I would have sentenced you to a total effective sentence of three years and eight months and I would have set a period of two years and six months as a non-parole period.
133Counsel, my typing is all my own therefore the document that I have provided with be legible and understandable only to me perhaps till Monday morning, but on Monday morning you will have a copy of my unrevised reasons.
134COUNSEL: Thank you, Your Honour.
135HIS HONOUR: Can I thank you both for your considerable assistance in the way that you progressed this matter. The court is very grateful.
136Mr Lual, you will be released in about seven days' time. If I see you again in circumstances that are anything but positive, you will wish that we haven't met. Is that clear?
137ACCUSED: Yeah.
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