Director of Public Prosecutions v M.M.

[2019] VCC 1993

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

M.M. (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019, 25 November 2019
DATE OF SENTENCE:	3 December 2019
CASE MAY BE CITED AS:	DPP v M.M.
MEDIUM NEUTRAL CITATION:	[2019] VCC 1993

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. McGregor	Office of Public Prosecutions
For the Accused	Mr M. Habib	Papa Hughes Lawyers

HER HONOUR: 

1M.M.[1], you have pleaded guilty before me to one charge of aggravated home invasion.  The facts underlying your offending are as follows.  It occurred in company with five co-accused, all young men, all of South Sudanese extraction.  The offending occurred in the early hours of 17 November 2018.

[1] M. M. is a pseudonym.

2You and your five co-accused attended a house at 17 Peppermint Crescent in Wyndham Vale.  One of you stayed outside to keep a lookout.  The others, including you, jumped a side fence and forced your way into a garage.  You took a sledgehammer and smashed in the back door of the house.  You and at least two others went into the home which was owned by Ms Joy Menzel. 
Ms Menzel was woken up by the banging and glass smashing.  She went to investigate.  She saw three people in the living area.  You were holding the sledgehammer and it looked like one of the others was holding something that Ms Menzel thought was a machete but it was probably garden shears.

3When she asked you, 'What do you want?' you said, 'Car key, car key.  Go inside the room so I don't kill you.  Car key, quick'.  She was told to go into a spare room, which she did, and you followed Ms Menzel into the spare room and said, 'Quick, quick, quick, car key' and told her to stay in the room.  She told you where the key was and went and got it.  She gave you the key and then you all ran outside to the car, which was a Toyota Corolla sedan, and drove away.

4Ms Menzel called police.  The car was seen being driven a couple of hours later by police, very fast.  You and four others were all seen at an Airbnb property where there was a party in Point Cook and police found your DNA on the sledgehammer.

5On 20 November 2018, police saw you getting out of an unregistered car in Collingwood and you were arrested.  In a record of interview conducted on 20 November 2018, you admitted that you grabbed a sledgehammer, that you banged the door open, that you made the lady inside give you the keys and that you put her in the room and stole the car.  In other words, you told police what you had done.

6This matter was conducted by way of a contested committal hearing in the Melbourne Children's Court, although the victim was not called to give evidence and eventually a plea offer was made on 5 September 2019.  The maximum penalty for aggravated home invasion is 25 years.  This is a special charge because it is so violent and causes so many problems that Parliament has decided that boys of your age – and you were only 16 at the time when you committed this offence – have to come to adult court.  The legislation, the law, also says that unless there are very special circumstances a court should sentence a person who carries out a home invasion like you did to adult gaol. 

7Luckily for you, Mr M, the prosecution has agreed that there are a number of reasons why the court should find there are special or exceptional reasons and so that I can instead send you to Youth Justice rather than adult gaol.  Do you understand that?

8OFFENDER:  Yes.

9HER HONOUR:  I am going to read out now the victim impact statement from Ms Menzel.  This is what the lady whose house you broke into says about what it feels like for her.  She was a lady who had a daughter who was intellectually disabled.  Do you understand what that is?

10OFFENDER:  (No audible response.)

11HER HONOUR:  She had a daughter who had grown up with her brain not developing properly.  Do you understand what I am saying?

12OFFENDER:  Yes.

13HER HONOUR:  You tell me what you think I said.

14OFFENDER:  Like, it's hard for her daughter to learn.

15HER HONOUR:  Exactly, very hard for her daughter to learn, all right?  So she had already had a child who had an illness, who had difficulties.  She had been very sick herself.  She had a very terrible illness called Stevens-Johnson syndrome.  It took her two years to get better.  Her home was very important to her.  It was a place where she could rest and be peaceful, and because of what you did she cannot feel that way about her home any more.  She was terribly frightened by what you did.  She was very worried that you might hurt her.  She said she could never drive her car again because she felt there had been great evil done in her car so she had to sell the car.

16She could not work anymore looking after the elderly.  She could not keep up her job anymore because of what you did.  She had nightmares, she felt stressed and terrible.  She said, 'I failed to cope socially and emotionally and became socially isolated.  I felt like a prisoner in my own home.  I have had to go to extensive counselling and I have to take medication because I'm plagued with recurring nightmares.  When I'm outdoors I'm in fear and I'm really suffering from trauma and anxiety'.  She feels terrible now, she feels scared of the world, because of what you did, Mr M, and she was a lady who did nothing to you.  How would you feel if boys broke into your mother's home?

17OFFENDER:  I'd be angry.

18HER HONOUR:  Yes.  How do you think your mother and your brothers and sisters would feel if something like that happened?

19OFFENDER:  Well, same thing as.

20HER HONOUR:  This lady – I really want you to think about that.  You were only 16, you probably did not even think, but what you did was so violent and so frightening for this lady she really thought she was going to be hurt.  It is very important you remember this.  If someone did that to your mother and brother and sisters you would hate it, would you not?

21OFFENDER:  Yeah.

22HER HONOUR:  That is what you have done to another human being.

23I now turn to your personal circumstances.  You are now 17 years of age.  You are the second eldest of five children and you came here to Australia with your mother in 2005.  Your father went back to South Sudan in 2008 and you have not seen him since.  Your mother has a new partner and has had more children.  You have a good relationship with your mother and a good relationship with your brothers and sisters, but you had a difficult childhood.  There were a number of times where child protection had to come to your home and that was because of violence between your parents, and your mother had mental health difficulties.  Sometimes your discipline was too physical, it was too harsh.  Sometimes there was not proper supervision, sometimes your medical needs were not met.

24You completed Grade 6 at school but you always had trouble learning, you had to repeat Grade 2, and you always had trouble in class.  You would fight a lot with other children and with the teachers and you have been suspended from school many times.  You went to Catholic Regional College in Melton up to Year 8 and the school found that you had a severe language disorder and you were placed in a special program.  You started with good attendance in Year 7 but this dropped away in Year 8, and 2017 was a particularly bad year for you. 

25In that year, unfortunately, your mother was involved in a car accident where a child was killed and she developed severe anxiety and depression about it afterwards.  I am not being critical, all right?  Mrs M, I am not criticising you, all right?  I understand it was very, very upsetting.  But as a result of all of that she had a lot of trouble looking after you because she felt so terrible about what she had done, and she actually had to be referred for psychological help herself.

26Also at that time your family was evicted from their home and for a while was homeless and had to stay with a cousin.  Then in August 2018 your family got temporary housing with the Brotherhood of St Laurence, and then finally were placed with the assistance of Launch Housing in Glenroy.  So during all this time you were not being supervised and you stopped going to school and you started mixing with other boys who got into a lot of trouble.

27You started using cannabis when you were 12 and by the time you were 13 you were using that every day and that was a real problem for you.  You had also been using benzodiazepine, and you had been using pills since you were 14 and occasionally you used cocaine.  You began offending and appearing before the Children's Court in 2018 and I think this is important because up to then you had not been in trouble, but in 2017 when everything went wrong with your mother, that is when you started getting into terrible trouble, hanging around the streets and using drugs and committing offences.

28The offending that you were involved in was serious offending.  You have been in trouble before for aggravated burglary, stealing cars, shoplift, robbery, handling stolen goods and going equipped to steal.  You went to the Children's Court for that in 2018 and the circumstances of the aggravated burglary are very similar, very much the same, as the offending that you did in Peppermint Grove in Ms Menzel's house.

29Then on 2 April 2019 you were sent to a Youth Justice Centre for affray, which is fighting with other people, assault by kicking, shoplifting, other assaults, fail to answer bail, criminal damage and entering into a private place.  So that is serious offending and you have still got some more offences for a court to look at because since you have been in Youth Justice – and you were picked up and placed there in September 2018 – you have been involved in a lot of fighting whilst you have been in Youth Justice.  You have been involved in a large number of assaults on other people, other boys in Youth Justice, and on staff at Youth Justice.  So that is a big problem.

30You have been assessed by a neuropsychologist and found to have low to average intelligence and to have a severe language disorder.  I have had you assessed as to whether or not you are suitable for being placed in a Youth Justice Centre and the report said you are not, but I am worried about the report.  Mr M, I have to use fairly legal language now which you might not understand but I will come back and explain what I am saying.

31I have concerns with the report that I received in relation to your suitability for placement in a Youth Justice Centre.  Firstly, the report notes that your offending appears to have occurred in the context of your low cognitive functioning, unstable homelife, exposure to domestic violence and family trauma and, more recently, 'his mother's poor mental health which appears to have impacted on M's ability to receive the supervision and support he requires.  These factors appear to have contributed to M's gravitation towards negative peers who display similar psychosocial vulnerability.  It is noted M presents with a significant trauma history stemming from his refugee status and to exposure to inappropriate physical discipline which led to numerous reports to child protection'.

32So what Youth Justice is saying there is the reason that you offended is that there had been trouble at home, that you did not have adults supervising you properly, and that you started hanging around with other boys who got into offending.  The report noted that when discussing the offending with Youth Justice you engaged in 'reflective and meaningful discussions'.  It said that you are able to identify emotions of sadness, anger, fear, and nerves when recounting the offending incident.  You acknowledge that you did not consider the impact and consequences of the actions upon yourself, your family, or the victims of crime.

33So what they are saying there is that you are able to talk about the offending and to say that you did not think about what it meant for you, what it meant for your family and what it meant for Ms Menzel and her family.  You also told the Youth Justice Officer that you were under the influence of drugs at the time.  You were able to identify that the victims would be traumatised and you told the officer that, 'I have to live with what I have done.  I have a lot of regret'.  You said you found it very difficult being away from your family.

34Whilst you have been in Youth Justice, as I have said, there have been a large number of incidents, in fact 15 incidents, where you have attacked other boys or attacked staff.  However, you have been transitioned.  Firstly, you were sent to the Intensive Supervision Annex following a serious assault on a staff member and this happened on 24 September this year.  It was found that you demonstrated a positive shift in your behaviour and that you were presenting as more focused in your discussions with staff.  There was a reduction in your involvement in incidents and there were concerns about your mental health.  At one stage you self-harmed by scratching your arm.

35Then on 14 November you were sent to the Monash Unit which is where you currently are.  The report stated, 'Custodial staff report M presents as settled and is conducting himself in a respectful manner in his interactions with staff.  Custodial staff report M is interacting well with other young people on the unit, is attending the gym and programs offered, including Parkville College and the African Education Program'.  You are also being supported by Orygen Youth Health. 

36You have been diagnosed as suffering post-traumatic stress disorder and a substance abuse disorder.  You are being provided with mental health support, you are also seeing a psychologist through Orygen and through Caraniche.  You are attending the African Education Program where you are doing well and you are undertaking your foundation VCAL certificate course with Parkville College.  The college report says that you present as a kind and thoughtful student who has been making progress towards completing his foundation level VCAL by regularly attending class. 

37Parkville College reports, 'M has shown regular leadership skills amongst his classmates during daily fitness class, demonstrating respectful language towards others, including staff at Parkville College teachers.  Most notably, M has assisted in creating a leg-based fitness program to improve his vertical leap and continues to demonstrate an interest in his education.'  You are also being supported by a transition support worker.

38You have told people that you want to go back to school to do your VCAL certificate and to get work, and in the report from Parkville College, the authors say that they are optimistic about your rehabilitative prospects 'based upon his respectful conduct, attitude and perseverance whilst in attendance at Parkville College'. So the report is very positive about how you are going now.  Do you understand?

39OFFENDER:  Yes.

40HER HONOUR:  You are in the Monash Unit, you are getting psychological support from Orygen, you are getting support from Caraniche, you are going to Parkville College and you are doing well in the African Education Program.  Overall, whilst you have been very troublesome, you have caused a lot of trouble since you have been in Youth Justice, but that has improved.  Are you understanding what I am saying so far?

41OFFENDER:  Yeah.

42HER HONOUR:  All right.  I am going to go back to legal language that you might not understand, Mr M.  My concern about this report is that it is clear that you are a vulnerable young man with a host of mental health and intellectual difficulties.  I accept that you have presented as a serious management problem for much of your time at Youth Justice but that situation appears to have stabilised and become far more positive.

43Ultimately, the report refers to the conditions laid down in s.32 of the Sentencing Act which states that for placement in a Youth Justice order the court must be satisfied that the young offender has reasonable prospects of rehabilitation or is particularly impressionable, immature, or likely to be subjected to undesirable influences in adult prison.  The report states that your prospects of rehabilitation are assessed as being poor because of your continuing fighting with staff and other boys there.

44I do not necessarily agree with that conclusion given the arrangements that have now been put in place.  I agree that they are quite recent, but arrangements have been put in place so that your situation has stabilised and improved.  The report in relation to the second condition, that is 'the offender is particularly impressionable, immature, and likely to be subjected to undesirable influences in an adult prison' is in my respectful opinion somewhat inadequate. 

45It notes that you present with a low level of immaturity and impressionability but stated that you are not likely to be subject to undesirable influences in adult prison because of your violent nature and your stature – that is, that you are large.  In other words, they are saying that you would be able to defend yourself if you got into fights in adult prison.  That, in my view, is not a sufficient basis to say that you would not be subjected to undesirable influences in adult prison.  As the report goes on to say, 'However, the writer notes concerns highlighted by Mr Staios, clinical neuropsychologist, given M's young age, limited intellectual functioning, and vulnerabilities to negative peers' – which we have already seen in terms of the way you offended – 'and further decline in his mental health negatively impact his ability to reintegrate into society'.

46Mr Staios noted that, 'An adult prison system was likely to result in the integration of further dysfunctional traits into your personal structure through contact with older, dominant peers'.  In my view, neither condition is negated by what has been laid out in this report.  I do regard you as being a young man with some prospects of rehabilitation, I have to be guarded in that.  However, you have protective factors in place, a major protective factor being the services offered by Youth Justice which are simply not available in an adult custodial setting.  Further, you continue to have a close relationship with your mother and your brothers and sisters.

47Do you understand what prospects of rehabilitation means, M?

48OFFENDER:  Yes.

49HER HONOUR:  You tell me what you think it means.

50OFFENDER:  Well, like – like I'm getting rehabilitated and yeah.

51HER HONOUR:  What does rehabilitated mean?

52OFFENDER:  Like um - I don't know how to put it in words but.

53HER HONOUR:  I will tell you what I think it means.  It means that you are going to not get into trouble.

54OFFENDER:  Yeah.

55HER HONOUR:  That you can have a job, that you can finish your education, those sorts of things.  Does that make sense to you?

56OFFENDER:  Yeah.

57HER HONOUR:  Not fight, not break into people's houses and terrorise people.  Do you understand how serious that offending is?

58OFFENDER:  Yes.

59HER HONOUR:  Do you understand how close you are to going to adult gaol when you do this?

60OFFENDER:  Yeah.

61HER HONOUR:  If you ever do it again, Mr M, what a court will do is they will say, 'Oh, look at the trouble he's been in before and he still hasn't learned.  The only way we're going to teach him a lesson is to put him into adult gaol'.  Do you understand that could happen to you?

62OFFENDER:  Yeah.

63HER HONOUR:  Are you feeling happier in Youth Justice now?

64OFFENDER:  Yeah.

65HER HONOUR:  You tell me why you are feeling happier.

66OFFENDER:  Because like all my peers are there, like classes, more activities.

67HER HONOUR:  Do you like your activities?

68OFFENDER:  Yeah.

69HER HONOUR:  Are you playing a bit of basketball?

70OFFENDER:  Yeah.

71HER HONOUR:  Are you doing well with that?

72OFFENDER:  Yeah.

73HER HONOUR:  Good on you, all right.  I think it is important that you stay where you are.  You are young, you have got a number of difficulties, your prior criminal history is serious but it is not very old and your offending happened in very particular circumstances.  In my view, you are impressionable.  I am satisfied on all of the materials, including the neuropsychological report of
Mr Staios, that you would indeed be subjected to undesirable influences in adult gaol and that your mental health would decline.  I think you are immature and, as I said, I also think that you do have some prospects of rehabilitation although this is an early stage.

74In all the circumstances therefore I am satisfied that it is appropriate that I place you in a Youth Justice Centre.  Now this offending, as I have said, is very serious and you have been in trouble before, so I am going to sentence you to quite a long time in Youth Justice, all right?  Your barrister will come and talk to you about that.  Even though the sentence I am going to hand down will seem like a really long sentence, in fact what will be happening is, depending on how you go at Youth Justice, you will be sent home on youth parole if you do well.  Do you understand what that means?

75OFFENDER:  Yeah.

76HER HONOUR:  So even though I am going to be saying that you are going to be doing a long time, that does not mean you will be doing all that time at Youth Justice.

77OFFENDER:  Yeah.

78HER HONOUR:  But it does mean when you are released from Youth Justice that you will be on parole.  Do you understand what parole is?

79OFFENDER:  Yes.

80HER HONOUR:  You tell me what you think parole is.

81OFFENDER:  Well, it's like an order.  (Indistinct words.)

82HER HONOUR:  And also, if you get into trouble with police while you are on parole you have to go back straight into Youth Justice again and serve the whole of the sentence.  Do you understand?

83OFFENDER:  Yeah.

84HER HONOUR:  Mrs M, do you understand what I am telling you?  Do you understand?

85MRS M:  Yeah.

86HER HONOUR:  So when he comes home he has to stay out of trouble.  Really, really important, because if he gets into trouble he will go straight back into custody again.

87MRS M:  Yes.

88HER HONOUR:  I am going to sentence you, taking into account your youth, your mental health difficulties, the context in which the offending occurred, the progress that you have made, but also taking into account the seriousness of the offending, a term of three and a half years in Youth Justice.

89How much time has he already served?

90MS McGREGOR:  96 days, Your Honour.

91HER HONOUR:  I declare that 96 days of your sentence have already been served by way of pre-sentence detention.  Your barrister will come and talk to you, Mr M.  You are not going to be spending three and a half years in Youth Justice because eventually you will be released on parole.

92OFFENDER:  Yes.

93HER HONOUR:  Do you understand that?

94OFFENDER:  Yes.

95HER HONOUR:  But the three and a half years is going to be hanging over your head when you get out and go home, do you understand?

96OFFENDER:  Yeah.

97HER HONOUR:  Thank you.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four years in an adult setting and ordered that you serve a minimum term of two years, all right?

98OFFENDER:  Yeah.

99HER HONOUR:  The other thing I need to tell you is this.  You have already been up before the Youth Parole Board, have you?

100OFFENDER:  Yes.

101HER HONOUR:  What did they tell you?

102OFFENDER:  Well, they gave me a warning.

103HER HONOUR:  What did they say when they warned you?

104OFFENDER:  If I do more stuff I'll be transferred to adult gaol.

105HER HONOUR:  Good.  I am glad you understand that.  So any more fighting, they can transfer you off to adult gaol.  Do you understand?

106OFFENDER:  Yeah.

107HER HONOUR:  So good luck to you.

108OFFENDER:  Thanks.

109HER HONOUR:  Mr M, because I think you could do really well.  You could be a champion basketballer.

110OFFENDER:  Yeah.

111HER HONOUR:  And you can get your VCAL and you can have a good job when you get out, but you really need to make sure that you do not get into trouble and it is really important that you do not use drugs any more, all right?

112OFFENDER:  Yeah.

113HER HONOUR:  Thank you very much.  Is there anything else I need to attend to?

114MS McGREGOR:  No, Your Honour.

115MR HABIB:  Pardon, Your Honour, I didn't quite catch the top of the 6AAA.

116HER HONOUR:  The 6AAA was four with a two.

117MR HABIB:  Thank you, Your Honour.

118HER HONOUR:  I am also satisfied that you are remorseful, that is sorry, for your offending, all right?

119OFFENDER:  Yeah.

120HER HONOUR:  Thank you very much.

121MR HABIB:  If the court pleases.

122HER HONOUR:  You can take him down now, thank you.  I hope your boy goes well.  How are you feeling yourself now?  Are you feeling a bit better?

123MRS M:  Yeah.

124HER HONOUR:  How many kids are you looking after now?

125MRS M:  Seven.

126HER HONOUR:  That is a lot of work.

127MRS M:  Yeah.

128HER HONOUR:  Good luck with everything and I just hope he stays out of trouble because I am sure underneath it all he can be a very nice boy indeed and he is a good son to you.  I saw in the reports how he helps around the house and helps you with the children so that is always a good sign.  I thank counsel for their assistance.

129MR HABIB:  If the court pleases.

130HER HONOUR:  I reserve the right to edit these sentencing remarks but I really felt it was important that I explain to Mr M as I went through rather than just use legal language and I hope counsel will excuse the informality of that.  Thank you very much.

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