Director of Public Prosecutions v Makieng
[2021] VCC 2081
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-01476
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATREES MAKIENG |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2020,16 December 2020 | |
DATE OF SENTENCE: | 18 December 2020 | |
CASE MAY BE CITED AS: | DPP v Makieng | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2081 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: sentence, guilty plea, aggravated home invasion, armed robbery, co-offenders, commit indictable offence whilst on bail, early plea of guilty, prior criminal offending, COVID-19
Legislation Cited: s.6AAA of the Sentencing Act; s.18(4) of the Sentencing Act; s.5(2H) (e) of the Sentencing Act; s.10A of the Sentencing Act; s.44 of the Sentencing Act
Cases Cited:Farmer v The Queen [2020] VSCA 140; Hogarth v The Queen 37 VR 658; DPP v Wol [2019] VSCA 268
Sentence:
Section 6AAA Declaration:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Sargent for Plea Mr T. Crouch for Sentence | Office of Public Prosecutions |
| For the Accused | Ms S. Lacy | Greg Thomas Barristers & Solicitors |
HIS HONOUR:
1 Patrees Makieng, you have pleaded guilty to one charge of aggravated home invasion for which the maximum penalty is 25 years imprisonment and one charge of armed robbery for which the maximum penalty is also 25 years imprisonment. You have also pleaded guilty to one summary charge of committing an indictable offence whilst on bail for which the maximum penalty is three months imprisonment or 30 penalty units.
2 You are now 19 years of age and at the time of the offending you were aged 18. Your date of birth is 15 May 2001. This offending involved three
co-offenders who are facing a contested committal in the Magistrates' Court. The victims of your offending are the Hamad family: Henry, Josette and their children James, George and Christopher, who, as I understand, are in their late teens and early 20s.
3 At approximately 6.30 am on Sunday, 16 February 2020, you and your
co-offenders were in Greensborough. The Hyundai Kona in which you were travelling developed a flat tyre, so your group abandoned the car in
Tarwarri Court, Greensborough and walked south.
4 At approximately 7.10 am you and the co-offenders went to the back of the house at 48 Manatunga Circuit, Greensborough. This is the family home of the Hamads.
5 Henry Hamad walked into the kitchen area when he heard a noise and saw you and the co-offenders on the deck trying to open windows and doors. All four of you were wearing hoodies and two of you had face masks on. Mr Hamad yelled at you and the co-offenders, telling you all to leave. You each ran from the deck into the backyard.
6 Mr Hamad then went out onto the deck and continuing to yell at you. His wife Josette Hamad came downstairs and told him to get back inside the house.
He did this and locked the glass kitchen sliding door. You and the co-offenders then returned to the deck. One of your group was holding a shovel which had been in the backyard. That offender approached the glass door and started hitting it with the shovel, shattering the glass. Mr Hamad was attempting to hold the glass door shut while this was happening. Fragments of glass shattered and hit his chest and the shovel struck him to the left side of the chest.
7 You and the co-offenders pushed past Mr Hamad and entered the house. Collectively, you were armed with a shovel, knives and screwdrivers. It is this entry into the house that forms the basis of Charge 1, aggravated home invasion.
8 Hearing the commotion, George Hamad ran into the living room and tried to intervene. He saw you and the co-offenders swarming around his father and threatening him. James Hamad also ran into the living room. Christopher Hamad heard his father yelling, 'Call the police,' so he locked himself in his bedroom and called 000. A neighbour, Peter Wilkinson, could also hear yelling and shouting from the Hamad’s house.
9 You and the other co-offenders demanded the family’s phones, wallets, money and car keys whilst threatening them with the shovel, knives and screwdrivers. It is this conduct and the subsequent thefts that forms the basis of charge 2, armed robbery.
10 James Hamad ran upstairs to comply with the demands and was followed by one of the offending group, who was carrying what James Hamad believed was a chisel. James Hamad then handed over a $50 note from his wallet to the offender. The offender told him to go downstairs again.
11 One offender approached Josette Hamad and demanded her phone and her wallet. She produced her phone and opened it using fingerprint recognition. The offender demanded that she enter the password into the phone. The offender then raised a knife and placed it to Josette Hamad’s throat, demanding the password to her phone. George Hamad entered the password into the phone and gave it to this offender.
12 Your group shouted at the victim family, demanding the keys to their cars. You and the co-offenders stole three sets of vehicle keys off the key rack in the house and left via the front door.
13 Also stolen were the following items:
(a) a jewellery box containing 10 watches;
(b) an Apple iWatch;
(c) three Apple iPhones;
(d) three Seiko watches;
(e) driver licenses;
(f) bank cards;
(g) a purple purse; and
(h) $276.55 in cash.
14 The estimated value of this stolen property was $9,980.00.
15 The damage caused to the Hamad’s house, being the shattered screen door, damage to window framing during attempted entry and a damaged kitchen counter, came to approximately $2,480.00.
16 Using the keys taken from inside the house, your co-offender Mr Deng entered the driver's seat of a blue Honda Civic. Your co-offender Mr Afath entered the driver's seat of the Holden Astra and you and co-offender Mr Chol entered a Holden Commodore. It is unknown whether you or Mr Chol were driving the Holden Commodore. The estimated value of the three cars is $65,000. All three cars were driven away from the scene at approximately 7.17 am.
17 The three cars drove in a convoy along the Greensborough Bypass. The Holden Commodore, occupied by you and Mr Chol, was driven at a speed of approximately 194 kilometres an hour. This was captured on dashcam footage operating in the Holden Commodore and also the Honda Civic.
18 Mr Deng, driving the Civic, lost control of the car and nearly hit another vehicle stopped at the intersection of the Greensborough Bypass and the M80 Ring Road. This was captured on the dashcam footage of the Holden Commodore.
19 You and Mr Chol in the Commodore and Mr Deng in the Honda Civic travelled to Collingwood where both cars were seen driving dangerously. A witness called 000. Ultimately, you or whoever was driving, parked in Russel Street, Collingwood. You, Mr Chol and Mr Deng got out of these two cars and discarded a stolen box of watches and the Apple iWatch under a car at the intersection of Gipps and Russel Street.
Arrest and investigation
20 Police arrived at approximately 7.41 am and they saw you, Mr Chol and
Mr Deng walking together. All three of you then started running in different directions. Mr Deng was arrested in possession of one of the victim’s mobile phones. Mr Chol was arrested at the intersection of Lennox Street and Victoria Street, Richmond. He was in possession of $155 cash, believed to belong to the Hamad family.
21 You entered the high rise at 253 Hoddle Street in Collingwood and security officers called the police. They told police that you had an association with
unit 167. Police entered that unit and found you sitting on a couch in the living room. You were arrested and a 20-centimetre kitchen knife wrapped in a tea towel was located down the front of your pants. You were also in possession of driver licences, bank cards, an Apple iPhone, three Seiko watches and a purple purse with coins all belonging to the Hamad family, as well as two red gloves and two green gloves.
22 You were taken to the Melbourne West Police Station and interviewed. You largely provided a no comment interview. You did falsely say that between
7.00 am and 8.00 am that morning you were sleeping at your auntie’s house in Collingwood, where you were arrested.
23 Mr Hamad saw his general practitioner on 16 February 2020 and then went to the Austin Hospital on 18 February 2020. Hospital records indicate Mr Hamad’s general practitioner removed glass from his chest and he sustained bruising to his left anterior chest wall.
24 Mr Afath was ultimately located and arrested in Footscray on 21 February 2020.
25 At the time of this offending you were on bail for unrelated drug possession offending. It is because of this that you have pleaded guilty to committing and indictable offence whilst on bail. You were remanded in custody in relation to this offending on 16 February 2020.
26 On 23 March 2020, you were sentenced to a period of 9 months detention in a youth justice centre. This sentence was for two charges of burglary, seven charges of obtaining property by deception, four charges of theft and three charges of obtain financial advantage by deception, as well as two charges of committing indictable offences whilst on bail. I have been told by the parties that this offending involved burglaries of apartments in the CBD where credit cards were stolen and later used in the deception offences. The date of the first offence of burglary was 9 November 2019. I am told that this sentence is due to expire on 22 December 2020. You have been in the youth justice centre at Malmsbury since this sentence was imposed. You were arrested for those matters at the same time as you were apprehended for this aggravated home invasion and armed robbery. I will return later in these remarks to the significance of this sentence to the application of the totality principle in this case.
27 Pre-sentence detention in this matter is therefore only 36 days, between the date of your arrest until the sentence on 23 March 2020.
Guilty plea
28 This matter resolved by way of a guilty plea entered at a special mention on
9 November 2020. No witnesses were cross-examined in this matter. I regard this as an early plea of guilty. I accept that your plea of guilty is consistent with remorse for your offending and demonstrates a willingness to facilitate the course of justice. I give you credit for the utilitarian value of your plea. You have saved the court and the community the time and expense of a trial. You have spared the witnesses the ordeal of giving evidence. The utilitarian value of your plea is heightened in the current environment, with jury trials having been suspended up until recently, causing a substantial backlog of trials into the future.
Victim Impact
29 A victim impact statement was prepared by Henry Hamad in relation to the impact of the offending on Mr Hamad and his family.
30 He referred to the injuries he sustained. He said it was not only the loss of tangible items that has affected him, but he is less trusting of people and more vigilant than in the past. His sleeping has deteriorated and he is much more sensitive to sounds which cause him to react regardless of the time of day. He has incurred expenses, paying for increased security, which has cost him more than $15,000.
31 He directed the following comments to you, Mr Makieng. 'You had no right to do this and threaten my family's life.' He also said, 'I don't know you and I did not invite you into my house and you had the opportunity to leave before you smashed a glass door with me standing directly behind it in full view but you chose not to. You have threatened my family and that will leave an impression on me for the rest of my life.' It seems to me, that with these comments,
Mr Hamad has encapsulated, not only the gravity of your offending, but also why such offending is regarded as extremely serious by Parliament and by the courts.
32 I have not received victim impact statements from any other member of the Hamad family, but it takes no imagination at all to understand what a terrifying ordeal this must have been for them.
Gravity
33 This was obviously extremely serious offending. The offence of aggravated home invasion carries a maximum penalty of 25 years. This offence was introduced in December 2016 as a response to offending such as this. Before that offending, conduct such as this was charged as aggravated burglary which also carries a maximum of 25 years. Home invasions were the category of aggravated burglaries which attracted the longest sentences.
34 In the case of Hogarth[1], the Court of Appeal, in dealing with home invasion style aggravated burglaries, describing home invasion as a 'particularly nasty form of criminal conduct' and went on to say this:
'Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders acting in anger and often fuelled by alcohol, is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.'
[1]Hogarth v The Queen 37 VR 658
35 These comments are obviously pertinent to the offences in this case.
36 Your aggravated home invasion in this instance involved the following serious features:
(a) The offending was committed in company with three other male
co-offenders. Of course, the fact that the offence is committed in company is an element of the offence and I do not regard it as an aggravating invading feature, but the fact that you entered with three others underlines the serious nature of your conduct.
(b) Some efforts were made to disguise your identity of you and your
co-offenders. All offenders wore hoodies and two of you were wearing face masks.
(c) The offending occurred early in the morning when the Hamad family was either asleep or getting up.
(d) You knew that at least Mr Hamad was present inside of the house. This also is an element of aggravated burglary, although, recklessness will suffice. But in so far as it is an element, I do not treat it as an aggravating factor.
(e) Your group was told to leave and Henry Hamad then retreated inside and locked the door for protection. Despite this, your group persisted and entered in a most violent fashion by smashing in a glass door with a shovel, causing substantial damage.
(f) Mr Hamad, who was holding the glass door to stop you entering, was injured, when it shattered, as a result of the mode of entry.
(g) Your group was in possession of multiple weapons at the time of entry, including knives. Again, this is an element of the offence, so it is not an aggravating feature. But the possession of multiple weapons in the hands of multiple offenders also underlines the serious nature of this offence.
(h) The Hamad family were immediately accosted and threatened with the weapons.
(i) The entry was not, in my view, fleeting.
(j) The offending, in my view, involved at least some planning, given the facemasks and the weapons used.
37 It is clear from simply reciting these serious features, that this was a serious example of an aggravated home invasion.
38 It is often difficult to draw a line between the aggravated home invasion, which is complete at the time of entry, and the offending which takes place thereafter. Of course, what takes place after entry informs the intent at the time of entry. It is apparent in this case, that when you and your co-offenders invaded the Hamad’s residence, you and your co-offenders intended to steal a substantial amount of property, including motor vehicles, and you were prepared to use violence to achieve your aims. You were undeterred by being told to leave or by Mr Hamad holding the door and trying to stop you and the others from entering the house.
39 The offending that followed the entry constitutes a serious example of an armed robbery. The armed robbery in this case involves four victims, being four of the five members of the Hamad family. Including the three cars, the property stolen was valued at $74,980. Your group was not content just to steal the cars, you also stole phones, credit cards, cash and the other items. The intimidation used to affect the thefts was at a high level. Most seriously of all, a knife was put to Josette Hamad’s throat to obtain the password to her phone.
40 The Hamads were a normal family who didn't know your group at all. They were about to wake up and start their day when your group appeared in their backyard and terrorised them in their own home early on that morning.
41 You were on bail and youth parole at the time of this offending. These are aggravating features of your offending. You have been involved in armed robbery and robbery offending before and had already, at this time, served a period of detention.
42 In all the circumstances of this case, I consider your moral culpability to be high.
43 In the case of the DPP v Wol [2019] VSCA 268 which involved a young offender, aged 18, who committed an aggravated home invasion by entering a residential house, in company, with a loaded gun in order to steal a car, the Court of Appeal, in increasing the sentence, said this:
'…those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.'
Personal circumstances
44 I turn now, Mr Makieng, to your personal circumstances. You were born in Sudan on 15 May 2001. Your ethnicity is Sudanese and your first language is Arabic. Your parents escaped the civil war in Sudan by seeking refuge in Egypt with you and your elder sibling. During your early years in Egypt, your family was exposed to civil unrest, public violence and an uncertain future. Your family was granted a humanitarian visa to Australia in 2004 when you were aged three. Your family initially settled in the western suburbs of Victoria, before relocating to public housing in North Melbourne. You are the second oldest of six children who range eight to 24 years in age.
45 During your childhood, your father worked in a meat factory and your mother stayed at home looking after you and your siblings. Your mother found it hard to assimilate, facing language and cultural barriers while she raised her children largely alone.
46 Your parents separated two years ago. Child Protection involvement with your family due to conflict between your parents, apparently due to your father’s alcohol problems. You and your siblings were apparently removed from the home for some period when you were young. You have a close relationship with your mother and siblings, and in particular your older sister Mawor. You have little contact with your father.
47 You attended secondary school at Simmonds Catholic College in West Melbourne until half-way through year 10. You then apparently completed an introductory 15-week carpentry certificate in June 2018 but then failed to complete the carpentry pre-apprenticeship course that followed. By this time in your life, you had already developed negative peer associations and substance abuse problems. You had also already entered the criminal justice system.
Prior convictions
48 You have a substantial and serious criminal record for a person of your age. In November 2017 for attempted armed robbery, three armed robberies, obtaining by deception and robbery, you were placed on a youth supervision order for a period of 12 months.
49 In April of 2019, you were sentenced to 15-month youth justice centre order for handling stolen goods, robbery, violent disorder and other offences. You were on youth parole relating to that sentence when these offences occurred. Your parole had commenced in July 2019, given the pre-sentence detention that had been fixed on that sentence.
50 On the plea your juvenile justice worker over the last few years
Ms Para Grigorakis gave evidence. She said she has been your youth justice worker since 2017 when you were put on the youth supervision order to which I have just referred. She gave evidence that when she first became your worker, you were disengaged from education and associating with a negative peer group. She understood your parents had separated because of domestic violence from father to mother and that historically there had been involvement of child protection services with your family.
51 When you were granted parole in July 2019, you engaged well with the various services. A thorough plan was in place. This positive engagement continued up until November when you started disengaging. Ms Grigorakis said there were promising signs of rehabilitation until November. You were engaged in substance abuse counselling and you were meeting expectations. You had previously had problems in custody on the earlier sentence for fighting and after release you had been dealt with for those matters and received good behaviour bonds in the courts.
52 In November you stopped going to school, started missing appointments, using drugs and you were no longer meeting expectations. Ms Grigorakis said that you asked her to request a revocation of your parole. You were given a direction to engage before any approach was made to the Youth Parole Board, but Ms Grigorakis said they were aware of your situation. Ms Grigorakis said a warning was scheduled for January 2020, but you did not turn up. By that time, they did not know where you were.
53 In relation to the period you spent on remand in the adult system after you were apprehended for these matters, she said you did not cope, and it was a salutary experience. She said you have been in youth justice centre since you received your sentence in March for the burglaries and related offences, you have been doing very well, with no behavioural issues. She says you have support and a vision for the future for education and employment.
54 You have been doing a barbering course and you want to do year 12 through VCAL. You will be able to attend classes if you stay at Malmsbury. You have a youth leadership role at Malmsbury and you are waiting for acceptance into other programs.
55 Mr Grigorakis referred to the fact that you have been the victim of assaults and threats. She said this is because there is a view within prison and the youth justice centre that you made a statement implicating another offender which led to that offender being charged. She said that the threats are said to be current and that you had to be moved to a different unit. She said this has had a detrimental effect on you and you were referred to Orygen Health for counselling.
56 She referred to your Sudanese background and said that you had engaged in programs specific to Sudanese culture, designed to give you a positive view of your identity.
57 She feels you have the capacity to rehabilitate and you have insight. The supports available in youth justice will help you. You have a view of the future and you believe in your prospects. Your risk of reoffending, in her view, has diminished in the last nine months. The services you are presently accessing are not available in adult custody.
Youth Justice Centre report
58 I ordered a youth justice centre suitability report in this matter, having regard to the submission made on your behalf that I should impose a period of youth justice detention. It also seemed to me that such a report could provide useful information concerning your background, progress in youth justice and the issue of the threats and assaults you have experienced. Ms Grigorakis authored this report with Mr Ross Layton, the general manager of youth justice in the West Metro area.
59 There is no doubt, based on this report and the numerous letters and references I have received from teachers and staff at Malmsbury, that over the last nine months you have been progressing extremely well and that you are able to engage very positively with adults in the youth justice system. You have assumed a leadership role and you are engaged in courses, including the VCAL course and a barbering course. You have completed a substance abuse intervention program. Your performance in youth justice on this occasion is said to contrast with your previous sentence where you 'demonstrated challenging behaviours towards staff and other young people, involving himself in several incidents'.
60 Impressive letters from the following people involved with you at Malmsbury were tendered:
· Matthew Hyde, the principal of Parkfield College which has a campus at Malmsbury;
· Nhial Deng, a VCAL teacher at Parkville College Malmsbury campus;
· Sarah Batterby, visual arts teacher;
· Bart Oswalt, a teacher at your unit at Parkville College; and
· Syrene Favaro, music teacher Parkville College.
61 I have also been provided with a letter from Ahmed Hassan from Youth Activating Youth, an organisation with which you have been involved since 2017. He speaks highly of your participation in their program.
62 This morning I received another letter from Mr Hyde reiterating your positive attitude and progress and letters from Amy Stenniken, unit teacher, and Stuart Berryman, home room teacher, both of whom add their support to the impressive array of letters attesting to your progress at Malmsbury.
63 The youth justice suitability report deals with problems in your family that required the intervention of Child Protection. This seems to have been largely based on conflict between your parents which negatively impacted on you and your siblings. The report refers to your contact with Orygen Health and suggests you have post-traumatic stress disorder symptomology.
64 The report indicates you have been the victim of two assaults on 21 September 2020 and 22 September 2020. You did not sustain injuries from these assaults. Apparently, a publicly accessible social media page identifies you as a 'snitch'. The report says it is understood that this information has travel between the youth and adult custody centres. The report says youth justice is aware of several known enemies to you who are currently in the adult prison system. As a result of these assaults, you were moved to a different unit.
Report of Gina Cidoni
65 Ms Cidoni found you to be a person with intact low average to average intellectual functioning. She said testing was indicative of low mood and antisocial attitudes and impaired empathy. She is of the view that you are immature and impressionable and influenced by your peers. She says you have a persistent depressive disorder and a substance abuse disorder. She said you will also require support and guidance when released. This should, in her view, mitigate offending risk. The major concern, in her view, is if you choose to reconnect with unhelpful peers and use substances. I agree with that assessment of your prospects of rehabilitation.
Remorse
66 You wrote a letter to the court in relation to your participation in this offending which was tendered. You expressed remorse for what you did. You say in that letter that, in the last nine months at Malmsbury, you have had time to reflect on your life and your future and you believe you have a positive future in front of you. You aim to become a useful and engaged member of the community.
Applicable sentencing regimes
67 Pursuant to s.10AC of the Sentencing Act (The Act), for the offence of aggravated home invasion, I am required to impose a term of imprisonment and a mandatory minimum non-parole period of three years unless a special reason exists pursuant to s.10A of the Sentencing Act. Aggravated home invasion is also a Category 1 offence and Category A serious youth offence.
68 In relation to a Category 1 offence, I am required to impose a custodial order excluding a combined order under s.44 of the Sentencing Act. Youth justice centre is a custodial order. Because the offence of aggravated home invasion is a Category A serious youth offence, I must not make a youth justice centre order unless I am satisfied exceptional circumstances exist.
69 A special reason under s.10A is established where an offender has assisted or given an undertaking to assist after sentencing, law enforcement authorities in the investigation or prosecution of an offence - that is s.10A(a) - or where an offender proves, on the balance of probabilities, that there are substantial and compelling circumstances that are exceptional and rare - s.10A(c). Both of those excepti9ons are argued in this case.
70 Further, armed robbery, when committed in company, is a Category 2 offence, which means the court must impose a custodial order unless the offender falls within one of the listed exceptions in s.5(2H) (e) of the Sentencing Act. These exceptions mirror the special reasons in s.10A. The same exceptions are argued by the defence.
71 In determining whether there are substantial and compelling circumstances that are exceptional and rare, I must have regard to general deterrence and denunciation having greater importance than any other sentencing purposes. I must give less weight to the personal circumstances of the offender compared to other matters, such as the nature and gravity of the offence, and I must not have regard to the offender's previous good character, other than the absence of previous convictions or findings of guilt. I must not have regard to an early guilty plea or the offender's prospects of rehabilitation.
72 I am also required to have regard to Parliament's intention that, in sentencing an offender for the aggravated home invasion, a non-parole period of not less than three years should ordinarily be fixed, and in respect of the armed robbery, a Category 2 offence in this case, that a custodial order, not including accommodation, sentence under s.44 should ordinarily be made. I must also have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such sentences.
73 In the recent case of Farmer v The Queen [2020] VSCA 140, dealing with a Category 2 offence of armed robbery, the Court of Appeal made this observation at paragraph 52:
'In many cases, given the type of offences within Category 2, a term of imprisonment is inevitable. In some cases, the operation of s.5(2H) will be harsh. In other cases, a term of imprisonment or youth detention would be entirely unjustified and counterproductive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree, paragraph (2H)(e) guards against the risk of injustice, but the stringency of the test cannot be avoided'.
Defence submissions
74 The primary defence submission is that an appropriate sentence is a term of detention in a youth justice centre. It was submitted by Ms Lacy on your behalf that the circumstances of your case are exceptional and that a special reason exists, justifying departure from the requirement of mandatory imprisonment and that it is both lawful and within the interests of justice for you to be sentenced instead to a period of detention in a youth justice centre.
75 The maximum term of youth detention that can be imposed is four years, pursuant to s.32(3)(b) of the Sentencing Act. A real consideration on the facts of this case is whether that is a sufficed period of detention, given the gravity of the offending, even if a special reason was demonstrated.
Assistance
76 Ms Lacy submitted that a special reason is demonstrated by your assistance to law enforcement authorities. On 18 July 2018, some 18 months before these offences were committed, you made a statement to detectives investigating the death of a young woman. She had been stabbed. In that statement you did not describe seeing the incident that led to her death or name anyone as being responsible for her death or, in my view, disclose any information that could be construed as significant to the investigation. You simply said that you had been at the party where the deceased had also been on the night that she was stabbed. You declined to name your friends, who were present with you at the party where the incident which caused her death took place. When the alleged offender faced trial in 2019, the prosecution did not call you as a witness.
77 I have not been provided with any further information or evidence as to the significance of the statement to the investigation, prosecution or conviction of the offender in that case. On the evidence before me, the statement appears to be a routine witness statement taken from you because you happened to be at the party. It is noteworthy that you were not prepared to give police the names of the friends you attended the party with.
78 In the case of Farmer v The Queen [2020] VSCA 140, the Court of Appeal dealt with the issue of assistance under s.5(2H). The court said this:
'There is nothing in that text that serves to qualify or limit the extent of the assistance given, or offered, by an offender by reference to its value to law enforcement authorities. The provisions give rise to a single question: has the offender provided assistance or an undertaking to provide assistance in the investigation or prosecution of an offence?[2] '
[2]Farmer v The Queen [2020] VSCA 140 paragraph 69
79 In paragraph 79 the court said:
'By its specific terms, paragraph (a) of s.5(2H) applies where a judge is persuaded that the offender has assisted or has given an undertaking to assist law enforcement authorities in either the investigation or prosecution process. There is no warrant to distinguish further and construe the provision as only applying to assistance of a particular kind, extent or quality.'
80 At paragraph 80 the court said this:
'Of course, it is necessary for the judge to determine whether the offender has assisted or has given an undertaking to assist. That depends on what the offender has said in the context of the investigation or prosecution. Where assistance to police is relied on, the information imparted has to be capable of assisting police in their investigation of the offence. It will include a consideration of its capacity to achieve a favourable law enforcement outcome, such as recovery of stolen or dangerous goods, the interception of a shipment of illicit drugs, the prevention of a crime or the arrest or conviction of offenders.[3]'
[3]Farmer v The Queen [2020] VSCA 140 paragraph 34
81 On the evidence before me, your statement did not provide any material contribution to a favourable law enforcement outcome and, as such, I do not find that the making of that statement in July 2018 constitutes assistance as contemplated by s.10A(a) or s.5(2H)(e).
82 It was further submitted that a special reason exists due to substantial and compelling circumstances that are exceptional and rare. The circumstances relied on are as follows:
(a) You are a 19-year-old refugee from war-torn Sudan. You were just 18 at the time of the commission of these offences.
(b) Your performance, initially on youth parole, was positive and thereafter, when you realised you were relapsing, you sought revocation of your parole through your youth justice worker.
(c) That the Youth Parole Board and youth justice initially decided not to revoke your parole and thereafter your drug use spiralled and that when your parole was cancelled, you were not taken back into custody until you were remanded in relation to this matter on
16 February 2020.
(d) You were held on adult remand at Ravenhall Correctional Centre for approximately six weeks, which was a salutary experience. You have subsequently been on remand from the youth justice centre since March of 2020 and that that sentence is due to expire on
22 December 2020.
(e) The issue relating to your safety in custody arising from the view that you have implicated another prisoner in offending which stems from the statement you made.
(f) A reduction in the risk you are said to present to the community, in particular through your involvement in the following programs: your participation as a student at Parkville College and demonstrating a positive and respectful attitude to your teachers and a positive influence on your peers, your near completion of year 11 VCAL and the prospect of doing year 12 VCAL next year, your vocational training in barbering through which you hope to become a qualified barber, your work as a peer mentor at the Youth Leadership Council, your re-engagement with Youth Activating Youth programs for disadvantaged migrant youths, your active participation in Umoja, an African cultural development program. You are also said to have disassociated from your offending peers.
(g) Ms Lacy also relied on what she described as your history of trauma and disadvantage throughout your childhood and adolescence, including involvement of the Department of Health and Human Services with your family.
83 There is a heavy emphasis in these matters on your personal circumstances which I must accord less weight in applying the statutory test. Some of the points made relate to your prospects of rehabilitation, which I am precluded from taking into account, although, they are argued as relating to a reduced need for community protection in sentencing.
84 Your request for your youth parole to be revoked is somewhat unusual, but in my opinion, can provide no justification for the collapse of your rehabilitative efforts on parole and your re-offending while on bail and youth parole. You did not attend the warning convened by the Youth Parole Board in January this year and thereafter a warrant was issued for a parole breach, but you were not able to be located. You committed these offences against that background. The significance of your request for revocation is diminished by your subsequent conduct.
85 In the assessment of the statutory test, I have had regard to the evidence that you have been assaulted in the youth justice centre and concerns for your safety in adult custody because an erroneous view has been formed by a prisoner or prisoners that in the statement you made to police you provided information implicating another prisoner. You did not. This is concerning and unfortunate, but in my opinion, these safety and protective issues do not alone meet the statutory test. The authorities are aware of these issues and are obliged to take steps to ensure your safety. I do accept though that this has and will elevate the burden of your imprisonment.
86 I have also weighed this issue, together with the other matters relied on, including those said to indicate a reduced need for community protection, against the gravity of the offending, and I have had regard to Parliament's intention that, in sentencing an offender for an aggravated home invasion, a non-parole period of not less than three years should ordinarily be fixed. I have had regard to the need for the sentence to reflect general deterrence and denunciation as the most important sentencing principles.
87 In my opinion, notwithstanding the concerns raised for your safety, the constellation of circumstances submitted do not constitute substantial and compelling circumstances that are exceptional and rare. In coming to this finding, I am not of the view that the cumulative impact of the circumstances of the case would justify a departure from the non-parole period of three years pursuant s.10AC or a period of imprisonment pursuant to s.5(2)(e). Of course, all these matters have been highly relevant in the formulation of the sentence that I will impose in this case.
88 Had I been satisfied of the existence of a special reason or exceptional circumstances pursuant to the test for youth justice, there would have been no statutory impediment to the imposition of detention in a youth justice centre. However, I would still have been required to assess whether four years detention, the maximum period allowable under the legislation, provides enough sentencing scope to meet the sentencing principles applicable to this serious offending. Ultimately, I have formed the view that this is an insufficient period to meet the purposes of sentencing for these offences.
COVID-19 and protection
89 I have taken into account the increased burden of your imprisonment by reason of the current restrictions in force as a response to the pandemic. Face-to-face visits are suspended, as are rehabilitative programs at the moment. You are a young person facing your first sentence of imprisonment. You are currently engaged in rehabilitative programs at Malmsbury. Therefore, the environment in an adult prison will weigh heavily on you, accentuated by the current conditions.
Sentencing principles
90 Given the nature and gravity of this offending, principles of general deterrence, denunciation, just punishment, are the paramount sentencing principles.
91 You do have a substantial history and you have been dealt with in the Children’s Court for armed robberies and robberies. You have served a previous period of detention and you committed these offences on youth parole. In those circumstances, considerations of specific deterrence and community protection are also relevant. Your prior history is relevant to my assessment of your prospects of rehabilitation. On the other hand, it is very clear that you have been progressing extremely well in the last nine months at Malmsbury and there are many people within the system prepared to vouch for your progress and your prospects of rehabilitation.
92 I have had regard to all of the letters tendered on your behalf and I do find your progress very encouraging. There is reason for optimism, but whether or not you can address your substance abuse issues and stay away from the negative peer associations, will determine your future rehabilitation. It is to be hoped that at the end of what has to be a significant period of incarceration, you will have matured and you will be able to move on from the lifestyle you were leading when you committed these offences. I think there is every chance you can do this based on the material I have received on your behalf.
93 Accordingly, I give less weight to community protection and specific deterrence than an initial examination of this offending and your prior convictions would indicate, but they are still considerations of some importance.
94 You were only 18 years old when you committed these offences and you are still just 19. You are well and truly a young offender. The principles applying to sentencing young offenders remain relevant in your case, although, they are of less weight than ordinarily because of the gravity of this offending and your prior convictions. Nonetheless, the need to promote your rehabilitation and reintegration into the community must be reflected in the sentence. I must balance principles of rehabilitation against the other sentencing considerations, which plainly must be given substantial weight in this case.
95 Having regard to your age and the evidence relating to your positive progress at Malmsbury over the last nine months, I intend to allow for an extensive period of parole, during which you will be supervised if you are released by the Parole Board when you reach the minimum period.
Concurrency and cumulation
96 There is overlap between the two charges in this case. In punishing you for the aggravated home invasion I have had regard to your intent at the time you entered and some of the conduct inside. Considerable concurrency between the two offences is therefore justified by the need to avoid double punishment and also by an application of the totality principle, which provides that the overall sentence must be just and proportionate to the offending. Also, I have had regard to the sentence of nine months you received in March 2020. You have served all of that sentence. It is relevant for me to consider that you have now been in custody since February of this year but only 36 days will be deducted as pre-sentence detention. Those charges arose in the same timeframe as this aggravated home invasion incident, and had they been dealt with in this proceeding, a proportion of that sentence would have been made concurrent with the sentence for this incident. Accordingly, I have moderated the sentence and the non- parole period I have imposed to reflect the application of the totality principle to the period you have served in custody on those offences.
97 Mr Makieng, I have taken into account your early plea of guilty, your personal circumstances, including your personal history and family difficulties, your remorse, your age, your efforts towards rehabilitation at Malmsbury since March, the issues surrounding your safety in custody and the prospect that you may become a protection prisoner as increasing the burden of your imprisonment, that this will be your first sentence of adult imprisonment which, in my view, will weigh heavily on you, and the current prison conditions due the pandemic. As I have just said, I have also had regard to considerations of totality.
Sentence
98 I have attempted to balance the competing sentencing principles and I have taken into account the various matters in mitigation.
99 The sentences that I impose in this case are as follows:
· For Charge 1, aggravated home invasion, I sentence you to a period of imprisonment of five years and two months.
· For Charge 2 of armed robbery, I sentence you to a period of imprisonment of four years.
· For summary charge of committing an indictable offence whilst on bail, I will convict and discharge you because I have had regard to this matter as an aggravating feature of the offending.
· I order that 14 months of the sentence on Charge 2, the armed robbery, is cumulative on the sentence for Charge 1, aggravated home invasion.
100 That makes a total effective sentence of six years and four months imprisonment. I fix a minimum non-parole period in this matter of three years and nine months.
101 Pursuant to s.18(4) of the Sentencing Act, I declare that you have served
36 days of the sentence I have passed upon you and I direct that this be entered into the records of the court.
102 Pursuant to s.6AAA of the Sentencing Act, had you pleaded not guilty to this matter I would have sentenced you to a total effective sentence of nine years and four months imprisonment, with a minimum non-parole period of six years and two months imprisonment.
103 In light of your age, the progress you have made in the youth justice centre since March, the positive assessment for youth justice that I have received, and the concerns for your immediate safety in adult prison, I recommend that the adult Parole Board consider whether you are suitable to be transferred to the youth justice centre to serve at least part of your sentence.
Ancillary orders
104 I will make the compensation order sought in the sum of $12,460.00.
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HIS HONOUR: Are there any other orders?
MS LACY: No, Your Honour.
HIS HONOUR: Mr Crouch, nothing further?
MR CROUCH: No, Your Honour.
HIS HONOUR: All right, thank you. I'll adjourn the court.
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