Director of Public Prosecutions v Mayen
[2018] VCC 696
•10 May 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-17-01815
Indictment No: H11439791
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AOJAK MAYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 February, 23 March and 10 May 2018 |
| DATE OF SENTENCE: | 10 May 2018 |
| CASE MAY BE CITED AS: | DPP v Mayen |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 696 |
REASONS FOR SENTENCE
---Catchwords: Home invasion, RCI, theft, conduct endangering serious injury. 18 years old at time of offence, 18 years old at sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Henderson | Office of Public Prosecutions |
| For the Accused | Mr M. Allen | Hannebery Lawyers |
HIS HONOUR:
1Aojak Mayen, on 13 February of this year, you pleaded guilty to four charges on this indictment, being one charge of home invasion, one charge of recklessly causing injury, one charge of theft and one charge of conduct endangering serious injury
2You have no prior criminal history before the courts, though on the day of the plea, I was told by your counsel of the existence of a consolidation of charges that were awaiting finalisation in the Magistrates' Court, at that stage on
28 February, for a range of offending, some of it quite serious. I was told that you are pleading guilty. Now that consolidation has been adjourned to a date after I pass sentence, which makes good sense. It is listed now in July.3In addition, since the day of the original plea, your counsel placed before me a correction of the general statement that he had made to the court as to your being of good behaviour and not having been brought before a court previously. You had been brought before the Children's Court on a charge of riotous behaviour but you had then received diversion. That conduct, giving rise to the diversion, occurred in January 2016. Now, your counsel, Mr Allen, clearly had no idea of that matter and corrected the statement that he had made, as soon as he became aware of his error.
4Of course I am not suggesting for one moment that you had in some way hidden the matter. It had been diverted and I very much doubt if you would have thought that it needed to be raised at all in those circumstances. That is, the whole purpose of diversion. There was no finding of guilt. There was no sentencing outcome after all, though of course you must have admitted responsibility for the matter to have been diverted.
5Since the original plea on 13 February there has been another listing of the matter on 23 March of this year and the matter was then adjourned from that date to today’s date. Now the first adjournment from 13 February arose as a result of my calling for a youth justice centre assessment, where I had been incorrectly told by your counsel that I had four years' youth justice centre detention at my disposal, courtesy of recent legislative amendments. Now that submission was corrected on the 23 March.
6On 23 March, some further evidence was placed before me from Ms Cidoni.
I adjourned the case to today’s date and called for a Forensicare assessment. I specified in the request that I wished to have information provided as to your intellectual functioning and IQ. That was the whole purpose of the call for that report. Though that report has been prepared, it has not been possible to administer the very tests which I required to be performed. Forensicare suggest the possibility of an ARBIAS report, but that would take another six to eight weeks. The chronology has been most unfortunate.7The fact is, had I been correctly informed of the youth justice centre ceiling when I first saw you in February, I would never have even called for a Youth Justice assessment and I would have passed sentence within days after the plea. However, that is not the position I find myself in and I cannot just ignore what has been placed before me by way of reports and evidence. I will return to discuss some of these matters later in these reasons.
8You were born on the 10 October 1998, were just 18 and a half years of age at the time of the offences. You are now 19, turning 20 in October of this year.
9The maximum penalty for home invasion is 25 years' imprisonment. The maximum penalty for the theft is ten years' imprisonment. The other two charges have a maximum of five years' imprisonment.
Facts
10The prosecutor, Mr Henderson, opened this matter to me in accordance with a written prosecution opening that was dated 19 January of this year. I asked your counsel, Mr Allen and he told me that this was an agreed statement of facts. That is still the position, despite some comments made by you in the most recent assessment by Forensicare. The summary is marked as
Exhibit A. I see no need at all in those circumstances to describe the full factual setting in my reasons. It is a detailed opening and I sentence in accordance with the agreed summary and will not stray beyond those facts, other than to matters that were actually mentioned in the course of the plea. For instance, the 000 calls, the D24 transmissions and the footage taken from the police air wing.11Mr Allen conceded that this offending was very serious. They were the words he used and he was right to use them. This was a terrifying home invasion. It is charged as a home invasion, rather than as an aggravated burglary, as you entered residential premises in company with a number of others, intending to steal, at a time when occupants were present.
12You entered intending to steal the cars relating to the premises. I am satisfied of that beyond reasonable doubt and I do not accept the suggestion made more recently, that you entered to steal money. Entry was at 1.30 am. There were four occupants present within the house at the time of entry. The 54 year old owner and his wife and a female friend and that friend’s baby. The occupants were all asleep.
13Your primary victim, Mr Aung, was 54 at the time. He was woken from his slumbers, as you and your offsiders invaded his bedroom, yelling out demands for his car keys. Six offenders in his bedroom. You were one of them. Again
I am satisfied of that beyond reasonable doubt, despite your claims to the contrary in the recent Forensicare assessment process. I have asked Mr Allen again this morning, he has repeated that Exhibit A is an agreed summary.
Mr Aung was punched a number of times as the search for the keys occurred. I cannot conclude by whom. He ran from his bedroom and was further assaulted. He wrestled with the intruders. The intruders fled with the keys to a VW and a Mazda and he pursued the group, but was again punched and held to the ground as some of your number tried to start the VW. It could not start and so the six intruders all got into the Mazda and drove away. Mr Aung sustained the injuries spoken of in paragraph 13 of the opening.14The recklessly causing injury embraces the joint attack upon him. The conduct endangering relates to the way in which you drove the stolen car in the evening of that same day from about 6.20 to 6.41 pm. It was well over 12 hours later. The police air wing helicopter followed you and the summary describes the crazy manoeuvres that you took. The thermal imaging footage is quite startling. It gives a sense of some of the manoeuvres you were engaged in. They were highly dangerous. It gives a sense also of the speed of your car, relative to other road users. Many motorists had to take evasive action. This was not a lights and sirens pursuit on ground level at all. There were some unmarked police cars, but they were keeping well back.
15You and others were fortunate to avoid very serious injury at best. The car stopped, you and the others got out and ran, but you were caught close to the scene. You were interviewed by the police, but you did not make a clean breast of it. You denied any role in or presence at the home invasion, you asserted that you were at home at the time and you denied being the driver of the car in the course of the air wing observations. You were released on bail, but were subsequently arrested and interviewed in May 2017. You told a number of lies and you pretended to be affronted and offended by the allegations, allegations which of course you knew were true. Now none of that is aggravating. The fact is though, that you cannot point to any genuine cooperation with authorities, which would have been mitigatory had it occurred. Well it did not.
16You have been in custody since the 23 May 2017. Though I was told of the diversion, you have no prior convictions or appearances. I was correctly told by your counsel about the chronology of offending leading up to this offending, with offences committed by you on 28 October 2016, 28 December 2016,
12 February 2017 and 19 March 2017. There had been a process of offending, being arrested, being charged, being bailed on at least the first and second dates and committing the offences for which I must pass sentence whilst on bail. It is a disturbing chronology and one displaying an alarming escalation of offending. The summaries have been placed before me. They are not minor offences. They were brazen and again, when caught, you took a defiant stance and denied any involvement, in the main. I mention these outstanding matters only as Mr Allen has made clear they were proceeding as guilty pleas. That is, that you were admitting the conduct. It is obviously relevant to the need to deter you and the judgments that I make as to your prospects of rehabilitation.Impact
17One of your direct victims, Mr Aung, has made a victim impact statement. Even before doing so, he described how he felt in his statement made on 20 April, two days after the entry.
18As to his victim impact statement made in July of last year, I am not going to restate all that he has said. There is nothing at all surprising about the way he has been affected. Home invasions are notorious for the way they impact upon the sense of safety and comfort. Well, all of that has ensued here. He arrived in this country as a refugee in 2014, to safety at last, or so he thought. He worked hard and he felt safe in his new home in his new country. That feeling of security, that feeling of safety has been swept aside as a result of these crimes. Your crimes. He chose to move houses. He no longer feels safe. That all came at a large financial cost. He was deprived of his car for some time of course and that was most difficult. He felt vulnerable, isolated and scared. He has been affected in almost every imaginable way, including emotionally, physically and even financially. Your conduct will never be forgotten by those subjected to it and I take into account the impact of your crimes, as I am required to.
Mitigation
19Your counsel, Mr Allen, in an excellent plea conducted on your behalf, raised a number of matters in mitigation. He had prepared a very lengthy written document. It was an excellent piece of written work and frankly the only criticism or grumble one may have is as to it being labelled an “outline”, given that it spanned something like 15 pages. He said all that could be said on your behalf on the various days of the plea, including earlier this morning. He chiefly relied upon:
·Your guilty plea;
·The stage of the plea;
·The presence of remorse;
·Your youth;
·Issues of parity arising from sentences passed upon other co-accused;
·He submitted that you had already spent a sizeable period in custody to good effect; that it had not been easy for you and that there had been hardship. Indeed he mentioned earlier this morning the hardship of being in lockdown for a period since April of this year.
·He submitted that you were working, also doing courses in custody, not just custody, but adult custody with a portion that had been quite onerous; that you had no past criminal history and that you had, he argued, good prospects of rehabilitation;
·He took me in some detail to your background and relied upon strong family support. That was made plain enough by the presence of your family in the course of the plea on the various dates it has been listed.
20Mr Allen initially relied upon two reports from a psychologist, Gina Cidoni, though at the early stage of the plea, was conceding the weaknesses of some of the opinions in those reports. He subsequently placed before me the third report from Ms Cidoni and then called evidence from her on the last listing of the plea.
21This followed a pretty unusual development on what was to have been the day of further plea and sentence on 23 March 2018. On that morning I came onto the Bench and Mr Allan asked for me to stand down the matter, so that
Ms Cidoni could go down to the cells and for the first time, meet you in person to conduct some further tests. I had not received notice of this development, however I permitted that course. On later reflection, really I probably should not have. Instead, I should have just further adjourned the matter to permit a further report to be prepared, one disclosed to the prosecution. Instead, upon being called, it then became apparent that Ms Cidoni was basing her opinion on matters that had not even been disclosed in any of her reports, for instance, on school reports that she had read.22Now I am no expert in these areas, but an IQ of 66 struck me then at least as being unlikely and as being potentially inconsistent with much of the other material placed before me as to relationships, schooling and employment. The matter was being conducted really ‘on the fly’ on the last occasion, not
Mr Allen’s fault I am sure, simply that between the 13 February plea date and 23 March further plea and sentence date, where there had been ample time to obtain fresh materials, nothing had been done. As I understand it, there had been consideration given to obtaining a neuropsychologist's assessment, but that was going to take too long and so there was the scramble to have Ms Cidoni prepare her report in the way that it was raised with me on the day, that is, to come down and see you in the cells.23In the end I called for the Forensicare report, in the hope of have some further light shed on this issue of your level of functioning. That proved to be of little use in that regard, though the report is of assistance in many other areas, including a number of those areas isolated in Mr Allen's submissions to me earlier this morning.
24Back then to the submissions of your counsel. Mr Allen conceded the offending was very serious and required your ongoing confinement.
25He argued that such confinement should be by way of a youth justice centre order; that such a disposition could achieve all the purposes of sentencing here. He asked me to call for a youth justice centre assessment, which I did. I did, but as I said earlier, in circumstances where the written and oral submissions specified that there was a four year maximum term available, owing to some recent amendments. In fact, of course that was wrong. Those amendments did not apply to this sentencing task, owing to the offence commission date
pre-dating 30 November 2017. Now of course the fault does not lie exclusively with Mr Allen. The fact is, we both misinterpreted the transitional provision. It was easy enough to do.Prosecution
26Mr Henderson, who has appeared throughout the course of the plea, on behalf of the Director of Public Prosecutions, argued that the home invasion was an extremely serious offence, as was the conduct endangering serious injury. The entry to the residential premises was in the small hours and the direct victim was then attacked, giving rise to the recklessly causing injury charge. There was obviously some level of premeditation and it was a quite brazen entry. He submitted on behalf of the Director on the first occasion and the second and today, that in all the circumstances, it was not open to this court to sentence you by way of a youth justice centre detention order, given the seriousness of the offending; that prison was the only available disposition.
27Now I am not bound by any submission made to me by Mr Allen, or by the prosecutor, Mr Henderson. I am not free to ignore any submission that has been raised, I have to take them into account. What I then have to do is reach my own view as to the nature of the sentence required in this case. I am, after all, the person exercising the sentencing discretion, not Mr Allen, not
Mr Henderson and not the Director of Public Prosecutions.Guilty plea
28I turn then to consider the various submissions.
29The first of those is your guilty plea. You have pleaded guilty. You have done so at the earliest stage. That is important. Despite your foolish bluster in the two police interviews, you have then moved to take early responsibility for your offending. I give you credit for your decision to plead guilty. Witnesses have been spared the experience of coming to court to give evidence. It would have, no doubt, been a traumatic experience for some of these witnesses to give evidence and to relive the event in court. Well they have been spared that experience. So too, the community has been saved the time, the expense and the effort associated with the conduct of a committal hearing in the Magistrates' Court, or a trial up in this court.
30So you have, in these ways, facilitated the course of justice. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury. I take into account your plea in the mitigatory fashion urged upon me by Mr Allen in his oral submissions and in paragraph 35 of his outline of argument.
Remorse
31I turn then to remorse. You have pleaded guilty and a guilty plea is usually evidence of at least some remorse and yours was the earliest of guilty pleas. Now if I only had your interview performances to go by, it would be impossible to conclude that there was any remorse in this case. But they were carried out quite some time ago now and though of course you were a bit cocky for your own good, what you said then was in the setting of someone trying to avoid liability. You were a young man and you were probably panicking as to your own predicament. I do not hold it against you. You have left that bluster and nonsense behind you now and quite some time ago. You have pleaded guilty and at the earliest stage.
32There is also your letter which I am prepared to accept, as well as views expressed in this area by Ms Cidoni and your relatives, that is, as to the presence of remorse. So too are there comments from the officer, Mr Riordan, who conducted the youth justice centre assessment as to the presence of remorse and there are comments made by the Forensicare report author,
Dr Edwards. I am prepared to find that you are remorseful for your crimes, as your counsel suggests I should and I take that remorse into account in mitigation.Youth
33I turn now to your youth. Much was made of your youth. Mr Allen has made a number of submissions, both oral and in writing. He has referred me to many of the well-known legal principles in this area. That is because obviously your youth is important. It cannot just be ignored. You were 18 and a half when you committed these crimes last year. You have since turned 19. You are still very young and that is not something a court can lose sight of. Additionally you are a young "first offender", though of course I am not free to ignore the rather disturbing chronology of other offending leading into the offences for which I must pass sentence. But even taking those into account, which I am entitled to, the fact is, you are at an adult court for the first time and that is significant. You do not appear as someone who has, in the past, been to court and snubbed or defied all manner of sentencing dispositions that have been designed to rehabilitate you in the past. You have never been formally sentenced by a court and some of the present signs that I see are positive enough. Some are not, for instance, those things raised in the youth justice centre assessment as to your attitude and conduct in prison.
34Youth is ordinarily a very important factor in the sentencing exercise and for good reason. Young people are more likely to commit errors of judgment, or to be impulsive, or to be rash. They do not always consider consequences. They can and they do lack insight and judgment and the law correctly treats them as less culpable for those reasons. Well you were an adult, no question about that, not a child, but you were only 18 and a half at the time. You are now only 19 and I do not lose sight of that. Nor though can I lose sight of the undoubted seriousness of the offending here.
35Young offenders are also more capable of rehabilitation. They are less fixed in their ways.
36The benchmark for sending any young or youthful offender to prison is a high one indeed and for good reason.
37You are a young first offender, albeit it with some other baggage collected in the lead-up by way of the outstanding charges.
38Rehabilitation is an important matter in virtually any case which comes before the court. It is after all, one of the sentencing purposes which must be considered under the Sentencing Act. It is not only of importance in relation to young or youthful offenders either. If an offender of any age can be rehabilitated, then they are no longer a threat to the community. If they are rehabilitated, then they are not offending and that is surely in everyone’s interests. Rehabilitation is the best possible outcome for any offender. It is best for them, it is best for their families and of course, it is best for the community. It is easy enough to lose sight of that fact. It often enough seems to be ignored in the popular media when attention turns to sentencing.
39Well, rehabilitation has a greater emphasis in the case of a young offender, which you are. It is usually more important than general deterrence and punishment. The successful rehabilitation of a young person serves to actually protect the community into the future.
40Those of us who actually sit in these courts know that prison can and does derail that whole process. Mention is made of your susceptibilities in the report of Dr Edwards; of your impressionability in Ms Cidoni’s materials. Well prison can and does often enough corrupt, rather than rehabilitate and so of course when it can be avoided, it must be. The same can even be said of youth justice centre detention. Confinement is always a last option or resort and that is as it should be.
41It is for these and very many other reasons that youth is ordinarily a very powerful factor indeed.
42But Mr Allen concedes that these principles that are set out in so many cases, including the cases of Pitone and of Mills[1], to which I was referred and Azzopardi[2], to which I referred, they do not just apply equally in every case where there is a young or youthful offender. That has been discussed in a number of the authorities, including in the recent case of Mongrag [2018]
VSCA 105. Sometimes a young or youthful offender, even a youthful first offender, must be sent to prison or otherwise confined. That is because the weight to be given to youth necessarily will vary from case to case. The more serious the crime, the more likely it is that greater prominence will be given to deterrence, to protection of the community, to denunciation and to punishment. Sometimes the style of offence is one often enough committed by young offenders and so youth must surrender some ground.[1] [1998] 4 VR 235
[2] [2011] VSCA 371
43The authorities make very plain that as the level of seriousness of criminality increases, there is generally speaking, a corresponding reduction in the mitigating effect of youth. It is a rare case indeed where the mitigatory considerations of youth are all but extinguished and this is certainly not such a case. I make that as plain as I can.
44You are a young offender, a first offender and one functioning at what I judge to be a very low level, so of course your youth and rehabilitation is an important consideration. I do not lose sight of it and I take into account your youth in the ways argued by your counsel in his written outline and in his oral submissions. It is, however, not the only purpose of sentencing and regrettably you have leapt in down at the ‘deep end’ of offence seriousness here. Your crimes are extremely serious. General deterrence is undoubtedly a significant sentencing purpose in this case and that is so, notwithstanding your youth.
Background
45I have said to this point almost nothing of your background. I am not going to set it out chapter and verse. It was spelt out to me in great detail in both the excellent oral and written submissions and in the first report of Ms Cidoni. Also in the assessment report prepared by Mr Riordan.
46There is also a very detailed coverage of your personal background in the report of the Forensicare psychologist, Dr Edwards. I have no reason not to accept the personal historical background that has been placed before me. I do accept it. Unlike many coming from South Sudan, you "seemingly" have not been deeply scarred by your life there. I say "seemingly". In discussions with
Ms Cidoni, you report no particularly adverse experiences in Africa, but maybe you are glossing over what must surely have been an unpleasant period for you. I suppose you were young when your family fled to Egypt.47In fact there seemed to be more details suggesting significant issues in the Forensicare report. It is reasonable for me to think that perhaps you are putting on a brave face as to your early years. It cannot have been as easy as you have described. In Australia, you describe a stable, happy home environment and that is the picture painted by the many family members who were present at court and who have chosen to write references. Again though, the Forensicare report delves perhaps a bit deeper and maybe it is not as happy as might be suggested.
48Undoubtedly though, your immediate family is a large one and one with no past experiences of the police or the criminal justice system. You came to Australia with both parents and a brother and sister when you were about eight in 2006. Four sisters have since been born here. You have always lived at home. You did Year 12 by way of the VCAL program, then attended TAFE and did a TAFE certificate in relation to carpentry. You then did some full-time work with a friend who was a roof tiler and were so employed at the time of the offences and arrest. You have played soccer. You report to Ms Cidoni no bullying and no alcohol abuse, but some issues with cannabis leading into your arrest. You have a girlfriend who is a law student.
49There is no history of mental health issues. It was plain from the outset of the plea that you were not functioning at a particularly high level, though the testing in this regard was, as I have said, not complete at that point. Ultimately I had the additional report and the evidence of Ms Cidoni, as well as the report from Forensicare. The position has not become much clearer as a result of that Forensicare report. That assessment was done without regard to Ms Cidoni’s testing. I wanted a fresh approach to the task. Regrettably the Forensicare psychologist, Dr Edwards, did not administer any of the tests that I wanted administered.
50She said that you did not readily appear to have any difficulties with cognitive function and whilst no formal testing was carried out, she believed that your verbal abilities, processing speed, abstract reasoning and memory function appeared both intact and adequate. On gross estimate and that is all it was, you appeared to her to be of at least average intelligence. You are said by
Ms Cidoni to have an IQ of 66. Ultimately as Mr Allen made clear on the last occasion, the sentencing task was not driven by your precise level of functioning. I did have some reservations as to the assessment process and the results provided by Ms Cidoni. In the end though, I have those results.
I have the three reports and I have her evidence. I am prepared to act on her account and to conclude that you are functioning at a significantly lower level that might appear to be the case, that is suggested to be the position by Dr Edwards.51Now Mr Allen was not suggesting and has not suggested that this brought about any reduction in your culpability. He was not relying upon any of the principles from the case of Verdins and he made that plain enough. It went more to the potential advantages of youth justice centre detention and disadvantages of adult prison. See the transcript at p.16 on 23 March 2018.
52You have offended despite the existence of a number of protective factors, such as employment, a stable home life within a family setting and the existence of a strong relationship with a girlfriend. Well that is all true, but of course it does not condemn you to forever repeat those same mistakes in the future. Of course it is far better that you have these various supports and that they are available to you in the future. That much is plain enough. You, unlike many who sit where you sit, will have a home to go to, you will have parents and siblings who love you and support you and you have hopes of employment and maintaining a meaningful relationship.
53You have no formal prior criminal history, though as you know, I have been told of those other offences to which you are pleading guilty that were committed in the lead-up to these offences and the diversion offence which was earlier still of course. It would seem to me that you were out of control for at least a period of seven or eight months, longer if I add in the diversion offence committed in January 2016.
54The other matters which head to court in July on the consolidated plea, were not minor and I cannot ignore that other offending or the chronology of being arrested, charged, bailed or summonsed and then offending as you did and repeating that pattern. The offending for which I must pass sentence involved a very serious escalation and was committed when you were on bail. Again though, relatively speaking it is a quite brief period where you are committing offences when measured up against the period where you have been
offence-free and tracking quite well in the community. You are the exception to the rule in your family, where I am told that no immediate family members have been before the courts.55You have now been in custody for over 350 days. You have been held in adult custody, which is also of importance. It has not been pleasant. It is, by the way, not designed to be pleasant. It is punitive and very much so.
56I do not know what to make of the account given today by Mr Allen, who obviously is acting on your instructions, that you are in a lockdown setting, but it is a lockdown setting arising out of some fracas in a cell, a cell where you were present at the time of the fracas. It is said that you were not involved, but were trying to break it up. Well I do not know where the truth lies in any of that. I accept that you have been locked down, but it is hard to make a judgment as to why that has taken place, whether it is as a result of your own conduct or otherwise and I certainly cannot conclude that it is going to be a long-term issue for you. But still it is another example of the punitive nature of adult imprisonment.
57You have been doing what you can to maximise your chances upon your ultimate release. I was told on the earlier occasion of your having completed of a number of courses and being engaged in study. You have also been employed and earlier this morning I have had a couple of drug screens and also a course completion certificate filed on the plea and marked as Exhibit 7. So you are actually doing useful things whilst in custody.
58Your family still support you, which is a big plus. They visit you en masse every Saturday, or that is what I was told earlier on in the plea and they have noticed sizeable changes in your maturity and demeanour. So I take into account those three family references, marked as Exhibit 3. They are strong references, recognising both the bad that you have done, but also describing the alterations since May of last year and your remorse for these crimes. You have had quite some time to think about your life, to think about your past criminal deeds and your life into the future. You have read the impact statement.
59I sense from the materials placed before me that you have the capacity to change for the better. It is still very early days. I have the letter that you have written. You have undoubtedly committed very serious crimes, but you may well yet change for the better and live a productive and a contributing life. The process of being arrested, charged, then remanded in custody, would also have had some impact in deterring you from committing crimes into the future. So too the sentence which I will soon pronounce.
60It is never easy sitting up here and trying to forecast how a person’s life will turn out. Making judgments into the future about risk and about rehabilitation, well it is notoriously difficult. I must be guarded to a degree here. It is hard to know what to make of your prospects. That is because of the level of seriousness of this offending and the chronology that has been placed before me. One would not have predicted that one such as you would commit these types of serious crimes and yet you did and whilst on bail for other serious enough offending. You were the driver in relation to the last charge.
61There was some assessment of your level of risk in the report of Ms Cidoni, so too in the report of Dr Edwards. As to Cidoni’s risk assessment, I told Mr Allen that I did not follow or pretend to understand that assessment. Further it seemed apparent that Ms Cidoni had not been furnished with any of the materials relating to the outstanding charges or information as to your likely plea. That was confirmed when she gave evidence before me. The assessment itself in the report was indecipherable. So I told Mr Allen if he wanted to rely upon it, he would have to firstly have Ms Cidoni explain the tests and the result. He made plain that he was in no way relying upon that assessment and that has been raised again I think today and it did not alter when she was called. He chose not to go to that issue. Dr Edwards suggests that you have a moderate risk of general and violent re-offending and Mr Allen has referred to that assessment in his submissions this morning.
62What does the future hold for you? Well it is always hard to know. A return to the tracks you were seemingly travelling along prior to January 2016 and then October 2016, or further serious derailments along the way, such as that which commenced from about October 2016, running into April 2017? It is very hard to know. It will depend on many factors. Drug use, your peers, your friendship group, the extent to which you are truly committed to leaving that phase of your life in your wake. It is highly speculative, I accept that. I suppose these things always are.
63The report of Dr Edwards though, not addressing the factors I hoped it would address, is actually very useful indeed in many other areas, including your description of your descent into crime and your preparedness to engage and to accept help. Also in describing the possible difficulties for you in adult custody and the susceptibility to influence of others. There is reference also to the things that you will need to have put in place. Reference has been made to a number of those paragraph in Mr Allen's submissions to me earlier this morning and I pay particular regard to paragraphs 34 through to 38.
64I am encouraged to a degree by some of the efforts that you are making in custody and by your having a level of remorse for the offending. Conversely I am discouraged by the reports of misbehaviour in custody in the report of
Mr Riordan. He has had past dealings with you. I have your youth, I have the absence of any true past criminal history, I have a quite short period of criminal engagement and the existence of some supports upon your release. So I am a very long way removed from writing you off. I am of course concerned about the impacts of adult custody upon one of your age and also one functioning at your low level.65As far as I can determine and it is never easy, I assess your prospects of rehabilitation as being quite good. So I have some cautious optimism.
66I have mentioned already Ms Cidoni’s reports. The transcript would reflect that I was initially quite critical of the first two reports, mainly owing to the process she engaged in. She had never even seen you in person. She had used the video link and conceded, when she came before me and gave evidence, that ideally, she would prefer to consult in person. Well of course she would. I know there are serious logistical difficulties in conducting personal consultations. She could not administer all the tests she would have wanted to administer, prior to stating the opinion that she stated in the second of the reports. So her initial account of your level of functioning was an estimate, based on incomplete testing at best and seemingly it did not fit in with some of the other things I had been told about you and your past engagements at school and TAFE. However she has explained those matters and we have the third report and her evidence and I have already announced in these reasons my acceptance of her account of your functioning at a significantly lower level than might be suggested in the report of Dr Edwards, that a person can have this level of functioning and yet still engage in the way you have at school and in the workforce and in the community.
67I have some conflicts, I think, between Ms Cidoni and Mr Riordan as to your level of impressionability. Ultimately I prefer the view of Mr Riordan as to your level of impressionability and maturity. However, having said that, that view must be read in light of the views expressed by Dr Edwards in paragraphs 35,36 and 38 of the report.
68The Cidoni reports and evidence was being relied upon by Mr Allen in a limited way as speaking of the suitability of a youth justice centre disposition and highlighting the unfortunate potential effects of continued adult custody. I need no reminding of the fact that adult custody has real problems for those who are young, inexperienced and/or easily influenced. As I mentioned earlier, there was no submission being made by Mr Allen, suggesting that there was anything in any of the reports or evidence reducing your culpability or lessening the usual weight to be given to sentencing purposes on a Verdins basis. The case of Verdins[3] was not being relied upon in any fashion at all. Your counsel was quite explicit in this regard.
[3] [2007] VSCA 102;
69I do take into account all of the reports, all of the submissions made before me and all of the evidence placed before me. In a way, one significant aspect in the various psychological material, is the absence of any significant psychological or psychiatric conditions which might somehow impede your rehabilitation into the future. That is of course a plus.
70As to the report of Mr Riordan, though you were judged to be suitable, there are some real reservations held, owing to some misbehaviour by you in adult custody and a concern as to your influence upon others in a youth justice centre.
71My findings on the materials before me, is that you do not appear to be particularly impressionable. However your prospects of rehabilitation are said to be reasonable. I rate them higher actually and hence in Mr Riordan’s view, you at least fit one of the criteria for suitability under the Sentencing Act. I will return to this aspect in one moment.
72I take into account the reports and the evidence from Ms Cidoni. Also I take into account the Forensicare report from Dr Edwards and the report from
Mr Riordan. As I have said, the Forensicare report, Dr Edwards' report, suggests that prison may have some serious disadvantages for one such as you. I accept that. I act on that basis. One can overthink these things and perhaps there has been a larger concern than there should have been, in terms of your level of intellectual functioning. The fact is, of course you are impressionable. You are very young. There is an aspect of impressionability in the offending in the way it unfolded, as there very often is with young men being influenced by their surrounding peer group.The Offences
73As to the offences themselves, your counsel conceded that this was serious offending and he was right to make that concession. It was serious.
74This entry into the house was charged as home invasion, but cases dealing with aggravated burglary are still germane to an assessment of the seriousness. A number of principles will have equal application. In the case of Meyers, a number of considerations were set out, though obviously they are not exhaustive. They include the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened. Well, you and your offsiders intended to steal, but not silently. Confrontation was a very likely outcome. You needed the keys. I do not accept your instructions to your counsel that you entered intending to steal money. That was not the nature of this event at all.
75There were six of you. You all stood in the victim’s bedroom. There was a demand for keys, not money. You were in company, but that is the particular which generates the offence of home invasion, so I must not doubly count it as a matter of aggravation, at least when considering the home invasion. There was no weapon. This entry was to residential premises, but again, that is a requirement of this offence, with entry here in the early hours of the morning, when the occupants would likely be asleep. There was obviously some premeditation. I cannot determine how much. You were going in to obtain keys to the cars that were visible at the front of the property. It is pretty obvious that people would be at home. You needed them to be. Well this a relatively recent and prevalent type of offence. It is a very disturbing trend in offending, which must be strongly denounced and deterred by the courts. The second reading speech on 1 September, spells out the reasons underpinning those amendments. It spells out the disturbing trend that has been noticed and has to be stopped.
76It is an inherently alarming style of offence. Think of it being perpetrated upon your own family. It was brazen. Many burglaries, most actually when you think about it, are committed in the hope that a house is not occupied. Here, given the cars being targeted and the time of night, occupancy was required. The keys were required. The cars were in the drive. Entry was at time when one would expect the occupants to be asleep and the sizeable risk if not need of waking up the occupant to obtain the keys. Well here we had six men just appearing above the bed in the middle of the night. It is terrifying stuff.
77You, one of these many trespassers, had prior to entry, no concept at all as to who was actually within the building, the size and the number of the occupants, whether they were asleep or not, whether they may wake, what may happen upon being disturbed if they wake, what they may do, what you may do, or those you are joined with may do. The risks and the dangers of escalation in this sort of offending are so very clear. They can end disastrously. It is hardly surprising that such entries have a significant impact upon the sense of safety and security ordinarily felt within one's own home. We can see here the deep impact referred to in the victim's victim impact statement.
78The home invasion charge is a quite new offence. It is designed to address an alarming and relatively new crime. It carries a 25 year maximum. Now not every home invasion moves on to a crime of actual physical violence. Well yours did and the recklessly causing injury was no minor example of that offence. This man was assaulted jointly in his own home with a number of blows by a number of the intruders. I cannot conclude who was throwing which blow. I cannot even conclude that you have thrown any. Happily and perhaps very luckily, he was not badly hurt physically, but the physical injuries are just the tip of the iceberg, in terms of impacts for this style of offending.
79The theft is also serious, involving as it did, a car. When you think about it, a car is generally the second most valuable item most of us have, inferior in value only to a home and a home which cannot be stolen. Well you targeted this premises with these others for the car. The car was stolen and that itself had sizeable impact, as the victim comments upon.
80The conduct endangering serious injury is a very serious example of that offence. You were an inexperienced driver and you drove as a maniac might. You interfered with and endangered a number of road users. It was not some theoretical risk here. The driving spanned something like 20 minutes and many motorists were compelled to take evasive action. We had near misses at high speed, head on. It could have ended devastatingly for innocent members of the public, not to mention for you and your own peers. It was serious stuff indeed.
Purposes
81I have to consider a number of purposes of sentencing. They are not limited only to your prospects of rehabilitation. If they were, sentencing would be much easier than it is. Given your youth, your lack of relevant past criminal history and the relatively favourable judgements that I have made as to your future prospects, your rehabilitation is still an important consideration in this case. But it is not the only matter that I have to consider. There are many other sentencing purposes which must be adequately recognised here. I am required to impose a just and a proportionate sentence in relation to your offending. You must be punished, you know that. It is obviously an important sentencing purpose and it is conceded to be a significant purpose of sentencing here.
82Other factors must also to be taken into account, including for instance, the impact of the crime and the maximum penalty. Here 25 years for the home invasion.
83I must denounce your conduct and I do. Again, that is an important consideration. Your conduct in the home invasion was very serious indeed. So too the recklessly causing injury and the conduct endangering offence.
84There are also other purposes of sentencing. One such purpose is the need for this court to seek to deter you from offending in the future. Well I must give that principle of specific deterrence some weight in my task. That is obvious, given the gravity of the crimes and the disturbing chronology of offending, including committing these offences whilst on bail.
85I believe it is open to me to moderate, to a degree, the weight to be given to specific deterrence, given your youth and my guardedly favourable findings as to your prospects of rehabilitation. I think for the same reasons, to a degree, I can moderate the weight to be given to community protection. These purposes of specific deterrence and community protection still have a role to play in my task. They are just not to be given the same sort of weight or prominence that they might be given in a different case, for instance, the case of an older offender, or one with a relevant criminal history, or a history of defiance to court orders and less positive prospects of rehabilitation.
86However, despite your youth, despite the moderation of the weight to be given to specific deterrence and community protection, general deterrence is, as your counsel correctly concedes, a very significant purpose of sentencing in this case. This court must send a loud and a clear message to other individuals in the community who might be minded to commit this sort of serious home invasion, or this sort of ridiculous, serious and dangerous driving offence. The home invasion was, as I have said, a very serious offence. The driving, well you placed others at danger of serious injury.
87This Court must send a very loud message as to the seriousness with which this style of offending will be viewed. The home invasion in particular. Those contemplating offending in that way, home invasions, or for that matter, driving in such a manner as to endanger innocent members of the public, they must understand that such conduct will simply not be tolerated by the courts. Enough of those, by the way, who engage in that activity, are young men such as you and even younger than you. Youth and rehabilitation, though still undoubtedly important for the reasons I have previously announced, has to surrender some sizeable ground to general deterrence here. People must understand that such conduct as yours will almost inevitably be met with sizeable terms of incarceration, be it imprisonment or confinement. Engage in this style of crime at your own peril.
88The sentences imposed by the courts must spell out directly to "would-be" offenders, the likelihood of substantial periods of confinement being imposed, in the event of apprehension and prosecution before the courts. The message must be sent loud and clear from this place. Home invasions are very serious crimes. They are inherently dangerous. They have sizeable and lasting impacts. The Community is sick of them and Parliament who represent the community, has enacted new laws recognising this new and highly alarming offence. As to the conduct endangering, well you were not at a carnival driving a dodgem car, where impacts with other vehicles can be so easily forgotten or shrugged off. You were driving a car, a real car, a stolen car in a ridiculous manner. You placed others at risk of serious injury. It could have ended disastrously for you, for your peers or, of course, for other totally innocent road users.
89I must and do pay regard to current sentencing practices.
90Now the home invasion is a relatively new offence, where frankly I cannot ascertain any current sentencing practice. Mr Allen accepted that some guidance could be obtained from the related offence of aggravated burglary, which has the same maximum penalty. Of course that offence does not require joint entry. It does not require residential premises. Many examples of it are lone entries. In any event, as I say, I am dealing with the offence of home invasion. Statistics in other cases are of very limited use here, though I have looked at the cases to which I have been referred to. I have looked also at a recent case of Mongrag. Mongrag had a sizeable past history, it was a different offence and it was laid as an attempt, by the way, but the point I make is, I have to pass a sentence upon you for your crimes. So a court can only ever receive but limited assistance from other cases, or from statistics.
Parity
91I have the dispositions imposed upon your two co-accused. Well they were children and they were dealt with as a result in the Children’s Court. It is tempting then to say no more about them or their outcomes, as there is a world of difference even to that point. Your counsel was not suggesting that those outcomes had any strong pull in this case and for good reason. As a general rule, like offenders should be dealt with in a like manner. So the same crimes committed by people of the same age and background and with the same history before the courts, ought result in the same or at least, a similar sentencing outcome. That is a gross simplification of the principle of parity of sentence, but it suffices for present purposes. It makes sense and it is easy enough to state as a proposition. It is harder to apply in the real world where there are more often than not differences in involvement, differences in the background of joint offenders. When there are disparities or difference, well different outcomes are not just perfectly reasonable and justifiable, they are compelled by the differences.
92The authorities in this area make plain enough that there is always a difficulty when one offender is dealt with as an adult and others were children and subjected to the specialist Children's Court jurisdiction. There are very different sentencing principle at play in the Children's Court, including a total inability to even consider the principle of general deterrence. See the cases of Evans [2003] VSCA 223 and Hussein [2010] VSCA 257. Nor are you strictly
co-accused across the board in this case. You and only you are charged with the conduct endangering serious injury.93As to the three joint offences, one of your co-accused was 16 and with some history before the Children’s Court. The other was 17 and with no history. We have no details of their personal circumstances or the matters put to the court. The Children's Court is closed. We know that they were dealt with at the time of other offences being dealt with. We know the individual terms imposed upon (name redacted) but the existence of other charges may even have tended to compress the individual sentences imposed. We know that though the maximum penalty for an offence is still the maximum in the Children's Court as well, in the Children's Court there is also a jurisdictional limit for each charge. No such limit applies in an adult court. So one does not need to hunt too hard to find key differences here. I sense none in terms of the role for the joint offences, but in terms of background, you were, at the time, an adult. You knew as you committed the offences that you were bound for an adult court if apprehended. You were already on bail to so appear before an adult court when you chose to commit these offences.
94It is true though that you were not greatly removed from the age of the others. You were not deep into adulthood. Well I have already taken into account in a meaningful way your youth and I will continue to do so. You were only 18 years of age, not long out of the reach of the Children's Court. They were 16 and 17. But the Children's Court jurisdiction is an entirely different regime, with a focus unashamedly and correctly, in my judgment, on rehabilitation and maintaining the child in the family and in community and with no consideration at all to be given to the principles of general deterrence. Now one of the co-accused received detention, the other a youth supervision order without conviction. The one confined had some relevant past appearances before the Children's Court.
95Parity has only a very limited pull in this case, in terms of the shared offences. It is not and cannot be decisive to my ultimate sentence. There is clearly no requirement for arithmetic equivalence, given the different offences and the principles at play, in your case as an adult. The sentences imposed upon your co-accused would be entirely inadequate if imposed in an adult court. Again your counsel recognised that. You will recall Mr Allen making submissions as to the availability of four years youth justice centre detention, with the additional ability not to declare your pre-sentence detention. That very submission recognised that there would be very sizeable and justifiable differences in the sentencing outcome as between you and your co-accused.
96The sentencing purposes that I must apply, well they apply to you, an adult, because you are an adult and were at the time of the commission of the offence. You were not a child and you fall to be sentenced as an adult, not as a child. There is no part of my role to apply the Children's Court principles to my task. What I must do is apply the adult sentencing purposes and a very powerful purpose in your case is general deterrence, a purpose which, as I have said now twice, has no role at all in the Children's Court. I do not ignore the individual outcomes imposed on the shared offences, however, they say virtually nothing at all about the individual sentences or the total effective sentence required in your case. You are not like offenders. You are older. You are an adult. You also have committed the very serious driving offence, the subject of Charge 4.
97The reason the principle of parity of sentence exists, is to promote equal justice and to remove any justified sense of grievance that may exist between
co-offenders. It is not my task to deal with unjustified grievances which may exist. I can never do that. I have though, for this reason, explained now in great detail, some may say far too great detail, why there will be very substantial differences in the sentences imposed upon you, when compared to your
co-accused. Your own counsel, in his submissions to me, recognised the appropriateness of there being very significant disparities in sentencing outcome.Youth Justice Centre
98Your counsel conceded that your offending was so serious as to require that you spend a further period in confinement, well over and above the period you have already served. He argued that it would be open to structure a sentence which would permit your detention in a youth justice facility, that this would meet all the needs of sentence and foster your continued rehabilitation and remove you from the potentially corrupting influences that abound in adult custody. He took me to s.32(1) (a) and (b) of the Sentencing Act. He relied upon the evidence of others, including Ms Cidoni and Dr Edwards. He relied also upon the assessment report placed before me from the assessment officer,
Mr Riordan. I have already referred to that report and it was hardly a glowing recommendation.99Now a court cannot impose a youth justice centre order without calling for an assessment and being satisfied of one of the grounds set out in s.32 (1) (a) or (b).
100I do not believe that you are particularly impressionable. You are though, obviously quite an immature person. Though I do believe you have navigated the adult system, at least reasonably well, I am also satisfied that you are susceptible potentially to undesirable influences in an adult prison. You have displayed some level of defiance in adult custody, which is a matter of real concern to the assessment officer. Mr Riordan was understandably concerned as to your unstable and negative influence in the youth justice system. But with those reservation, he judged you to be suitable for detention in a youth justice centre and based that on your having reasonable prospects of rehabilitation. There is some also support for youth justice centre as a disposition , if it is available, in the report of Dr Edwards and her description of your susceptibilities and your needs.
101I have to then consider though whether it is open to pass such a sentence. I told you when I was calling for the assessment that you should take no comfort from my calling for the report, that I needed to obtain the report and to consider the report and even if you were judged to be suitable, I would then need to consider whether it was open for me to structure a sentence permitting that disposition. I meant what I said. There is a ceiling of three years, not the four years spoken of in the course of the plea, though I accept that on occasions, the disposition has been employed by courts not then declaring the
pre-sentence detention. Well that is a device, as far as I am concerned, and a contrivance to keep open a disposition where there is a strong and pressing need to do so, for instance, where there is very strong and compelling evidence of corruptibility or impressionability or immaturity. That does not exist here.102The provision that increases the period of available youth justice detention to four years came into effect for offences committed after 30 November 2017. Your offending occurred April 2017. Three years is the ceiling.
103Your offending demands that you be incarcerated for a very sizeable period.
I do not believe it is open to sentence you to a youth justice centre disposition in all the circumstances of this case.Totality
104I have taken into account the principle of totality. In terms of timing, this was obviously a quite tightly grouped set of offences, particularly the first three charges. There was a gap obviously between the first three offences and the fourth. Not every home invasion involves any other offending within the premises. The crime is of course complete upon entry. I must not, in passing sentence for the home invasion, increase that sentence, owing to the crime that you then committed once inside the premises. Or for that matter, the crime committed upon leaving the house. I must avoid that aspect of double punishment. See the case of Barnes VSCA 349.
105The home invasion was a very serious crime in its own right. Very serious indeed. You were then a part of a serious physical assault. You also committed the theft and of course, that was a serious offence in its own right.
106The conduct endangering serious injury was no minor example of that offence. Far from it. Indeed, I judge it to be a very serious example of that serious offence. It is obvious enough that some level of cumulation is required in this case, given the differing crimes, differing elements, differing conduct, victims and impact. I have engaged in a last look at the sentences imposed by this court and the total effect of them, in endeavouring to guard against the imposition of a crushing term upon you.
Forfeiture/disposal
107I have been requested to make a forfeiture and a disposal order. Those application are not opposed and I have signed the orders in the terms in which they are sought, pursuant to the provisions of s.71(1) of the Confiscation Act for the disposal order and s.33(1) of the Confiscation Act in relation to the forfeiture order relating to the mobile phones.
Sentence
108Yes, Mr Mayen, if you would stand up please.
109On Charge 1, the charge of home invasion, I convict and sentence you to three years' imprisonment. That is the base sentence.
110On Charge 2, recklessly causing injury, I convict and sentence you to
12 months' imprisonment.111On Charge 3, of theft of the motor vehicle, I convict and sentence you to nine months' imprisonment.
112On Charge 4, conduct endangering serious injury, I convict and sentence you to 18 months' imprisonment.
Cumulation
113I direct then that five months of the sentence imposed on the conduct endangering serious injury; three months of the sentence imposed on the charge of recklessly causing injury; and two months of the sentence imposed on the charge of theft, are to be served cumulatively upon the base sentence and upon each other.
Total effective sentence
114This results in a total effective sentence of 46 months or three years' and ten months' imprisonment.
Non-parole period
115I fix a period of two years during which you will not be eligible for release on parole.
Pre-sentence detention
116You have been in custody in relation to these matters for a period of 352 days already and that period has been served by you under this sentence, so that declaration is to be noted in the records of the court, pursuant to s.18 of the Sentencing Act.
117Have a seat please.
Licence order
118I am also going to make orders against your licence. In relation to Charge three, theft, I am going to make a licence order and so too in relation to the driving charge, the subject of Charge 4. That is, the conduct endangering serious injury, constituted by your driving of the vehicle. On Charge 3, the licence order is mandated, on Charge 4 it is not. But I believe it is appropriate to make an order in relation to Charge 4 as well.
119Now there is a tension at play here. On the one hand, there is the need to have a meaningful period of disqualification for driving such as is described in the facts of Charge 4. On the other hand, there is the recognition you are going to prison for a substantial period and possession of a licence upon your release (whenever that may be) would undoubtedly be an asset to you in the job market. Absence of a licence may in fact impede your rehabilitation. I am empowered to fix the disqualification to a point upon your release and of course that is the only way it will have any actual impact upon you, given the terms of imprisonment that I have imposed.
120My view is that a disqualification order, extending for a very significant period upon your release, is far more likely to actually harm your prospects of rehabilitation than to assist them. Though such a lengthy licence order would undoubtedly also punish you, the punishment would likely be counterproductive and of course there is already a very significant aspect of punishment in the sentences selected by this court.
121So I model the form of my order on that form discussed in the cases of Tran [2002] 4 VR 457 and Caldwell [2004] 8 VR 1.
122Pursuant to s.89A of the Sentencing Act, on Charge 4, that is the conduct endangering serious injury charge, I cancel all licences to drive. I disqualify you from obtaining another permit or from driving in this State. My order commences today. All licences to drive are cancelled. You are disqualified from obtaining another permit or from driving in this State, effective from today’s date and ending six months after you are first released from custody, whether on parole or the expiry of the head sentence. What that means is there will be an order as against your licence in existence upon your release for a six month period. That order is made under s.89A of the Sentencing Act.
123On Charge 3, where I am mandated under the provisions of the Act to make an order, I cancel all licences and on that charge, I am going to disqualify you from obtaining another permit or from driving in this State for six months from today’s date. I do not see the need to further complicate that order.
Section 6AAA
124I have mentioned that I have taken into account your early guilty plea. I have and now I give you a sense as to the level of discount that has been provided to you. But for your guilty plea, I would have imposed a greater sentence. Had you pleaded not guilty and been found guilty of these offences following a contested trial, I would have convicted and sentenced you to six years’ imprisonment. I would have fixed a non-parole period of four years. That statement is to be entered in the records of the court.
125All right, let me just see. Any other matters that I need to deal with at all, or not?
126COUNSEL: No, Your Honour.
127HIS HONOUR: All right. You will go down and see Mr Mayen downstairs anyway?
128MR ALLEN: I certainly will, Your Honour.
129HIS HONOUR: Yes, all right. Well thanks very much for your efforts.
130All right, well that completes the matter then. I will sign the formal order in due course. It might take a little bit of time to prepare, but Mr Mayen will be removed. You can be removed now, Mr Mayen. Mr Allen will come down and see you downstairs, all right?
131Yes, I will stand down, thank you.
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