Director of Public Prosecutions v Muvunyi
[2024] VCC 151
•20 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 23-00533
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAFI MUVUNYI |
---
JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2023, 19 December 2023, 1 February 2024 & 13 February 2024 | |
DATE OF SENTENCE: | 20 February 2024 | |
CASE MAY BE CITED AS: | DPP v Muvunyi | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 151 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: Home Invasion – Armed Robbery – Recklessly Causing Injury - Crimes committed in company – Young Offender – Rehabilitation - Youth Justice - Community Corrections Order.
Legislation Cited: Sentencing Act 1991 (Vic), s 32.
Cases Cited:Azzopardi & Ors v The Queen [2011] VSCA 372.
Sentence:1 year and 7 months imprisonment and 2 years Community Corrections Order.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Mr R. Casey |
| For the Accused | Mr J. Barreiro | Ms A. Watters |
HIS HONOUR:
1Shafi Muvunyi, you pleaded guilty to one charge of armed robbery, one charge of recklessly causing injury, those offences being perpetrated on the one victim, and to one charge of home invasion.
2
These crimes were committed by you in the company of a number of younger offenders, and one older offender. They occurred on the 20 and
21 August 2022. The fact that there were other young offenders, albeit much younger than you, has dire consequences for you. The younger co-offenders were dealt with in the Children's Court, where an entirely different sentencing regime appropriately applies. The older co-accused did not face the serious charges that you face. The charges you have pleaded guilty to in the adult court here are some of those where Parliament has decided to limit the sentencing options of a sentencing judge.
3The armed robbery was in company of co-accused whose matters were ultimately dealt with in the Children's Court, where sentencing options were not similarly restricted and are in fact wider. But because of the fact that the armed robbery was in company, and because of the circumstances of the home invasion, those two matters very significantly limit the available sentencing options. In practical terms, the only sentence available to me is a gaol term.
4Your counsel, in a comprehensive submission, urged that I look at the sentencing option or take the sentencing option for the term of detention in the youth justice centre. The Prosecution opposed that course, indicating that the only appropriate sentence was one of imprisonment in adult prison with a head sentence and a non-parole period being fixed. I will return to the issue of a youth justice centre option shortly. There were complications about that issue. First, I need to return to the facts of what you did.
5The prosecution summary of the crimes were tendered on the plea. In briefer terms, the victim of the armed robbery and the recklessly cause injury are known to your brother. The two of them, your brother and him, arranged to go to some parties in Geelong on 20 August 2022. You and some co-accused also attended. You then invited the victim to another party in Melbourne. On the way there in a vehicle, you stopped first at a McDonald's and then in an alley way in Deer Park.
6There the co-accused started to make demands of the victim, trying to get his jacket and his necklace or chain. You then produced a large knife and made threats and demanded the victim's phone. Once you had the phone, you then demanded that he provide the passcode for the phone and you punched him when the victim refused. You then used the knife to cut one of the victim's dreadlocks. He then gave you the passcode. Once you open the phone you demanded he open his banking app. He refused, saying he did not know the passcodes as it was his partner's account. At this point, another vehicle came by, causing a distraction and the victim took the opportunity to run. As he did you swung your knife cutting the victim on the palm of his hand. I have seen the photographs of that laceration and it was deep and a disturbing cut. The victim was then able to run and seek help.
7You and your co-accused then took off. Some hours later, that is at 1.45 am on 21 August, you and co-accused broke into a house in Bell Post Hill. This was the resident of the first victim's female partner. You had the first victim's phone. She was asleep, at home at the time. You demanded from the female victim, holding the first victim's mobile phone, to provide details so that the bank account could be opened. As this was unfolding, your co-accused stole the victim's valuable shoes and clothes, and a television. The female victim opened her bank account on the phone and showed you there was no money in her account. You and the co-accused then left.
8The whole home invasion was a frightening incident. The victim was entitled to feel safe in her own home and while asleep. Your conduct was aggressive and shameful. Your violence in the armed robbery was particularly concerning. At the time you were just 18 years old. As I have mentioned, your co-accused were in the main 16 and 17, with one female co-accused who was 19. I will return back to the limitations placed on sentencing judges as a consequence of the nature of the crimes or the categorization of the crimes that you have committed.
9Now, to elaborate on your personal circumstances.
10You are 19. You had recently turned 18 at the date of this offending, but had spent a substantial part, as I calculated, of the last three years in both youth and adult custody. You were born in Congo and have two brothers and sisters. You report witnessing your father's death when you were five years old. Your family moved to Malawi, when you were about five years old, and then to Australia in 2015. You initially moved to Townsville then relocated to Geelong. You began getting into trouble in Geelong, so your mother relocated the family to Albury, to distance you from negative peers. You reported being severely bullied and assaulted while living in Albury before you and the family returned to Geelong.
11You say you performed well academically while at primary school, but had difficulties in secondary school being the subject to racism including physical altercations. There you began using drugs. From 13 or so onwards you were using cannabis daily, alcohol most days, as well as abusing the prescription drug Xanax. You were expelled from school in Year 8, because a teacher believed you were the leader of a gang, which you dispute. You transferred to another school where your attendance was inconsistent. Concerns were raised as to your intimidating and concerning behaviour towards teachers and staff.
12Your involvement in the youth justice system limited your secondary schooling and you believe the highest level of secondary schooling you completed was Year 11. You have completed a Certificate III in Personal Training while at the youth training centre at Malmsbury. You would like to go on and complete a Certificate IV in Personal Training, and then work in that field. Apart from approximately two months employment at a gym, undertaking group training, you do not have any work history and as you are currently in custody, are not employed. But it is encouraging that you spoke to those that reported to me that you wanted to get a Certificate IV in Personal Training and take up that field or set yourself up to work in that profession.
13Despite your young age you have a very lengthy and concerning criminal history. You have been in and out of detention since you were 16 years old. Your offences are very serious crimes including for violent offending not dissimilar to the ones that are before me now. You have been placed on multiple youth residential orders and youth justice orders since 2018. But this did not result in any reform.
14This current remand period of 545 days represents the first time you have been in the adult correctional system.
15You have a strong relationship with your mother and report being emotionally supported by your mother and siblings who you speak to almost daily on the phone. Upon your release, you will reside with your mother and family in Geelong, and will seek to complete a Certificate IV in Personal Training and get work.
16
You are not in any relationship at the moment, but you do have an
eight-month-old son. Although you would like to have it determined formally that you are the father, you have not had any contact with this child, but this is a matter that will unfold upon your release. Unfortunately, you report you have met most of your friends through juvenile detention. It is critical that you establish a different peer group once you are released and living with your mother.
17As I indicated you have a history of misuse of substances, those being cannabis, alcohol, and Xanax. You have no other health concerns. Your lawyer secured a report from Ms Odenkirk, where she considered there was emerging anti-social personality traits and also symptoms of post-traumatic stress disorder. These are issues to which you must attend. She reports that you see your mood as being up and down. You can identify links between your mood and the substances you use. She thought, as did the Corrections officers that ultimately saw you, that you are a high to very high risk of general re-offending due to your criminal history, your limited education and employment history, your reliance on drugs and alcohol, and having been limited to an antisocial peer group, and not having engagement and appropriate structured leisure activities, and a general pattern of anti-social behaviour.
18She thought that the adult imprisonment would likely have some negative effect on your future and I am sure that's the case. That is why there was such work done to try and see whether you could move from the adult gaol where there is limited reform.
19As I said, your counsel submitted that I should consider imposing a youth justice centre sentence, and I need to deal with that. I sought the assistance, as I must, of youth justice via reports as to your suitability for a youth justice detention. A report is required by the statute, and that is to provide assistance in answering the questions set out in s32, the Sentencing Act1991 (Vic) broadly as to your maturity or, more importantly, immaturity, and vulnerability in an adult prison.
20The report that I received concluded you are not suitable for a sentence in the youth justice centre based on your conduct during previous sentences at a youth justice centre, and because of your failures on youth parole. The report also referred to your behaviour while on adult remand. In accordance with the provisions of the Sentencing Act 1991 (Vic), your counsel disputed the report, and sought to cross-examine the report writer. The cross-examination by your counsel and the re-examination by the prosecutor revealed that many of the conclusions made by the author of the report are not based on the author's own assessments or reviews of the material. Ultimately, and I will not dwell on this, both parties submitted the report was lacking and not as helpful as would have been expected.
21There were other hearings, at which time the Department itself sought to be represented and lead other evidence from other more senior officers. This course of action did not have a statutory basis and seemed at odds with the adversarial nature of criminal proceedings. The defence opposed such a course and the prosecution ultimately considered leading more evidence from youth justice or its files, but did not persist. It was, at the heart of this, a real concern of youth justice, that you were unsuitable and likely to be disruptive or worse with other young people at the youth justice centre, if you were again sentenced to a youth justice centre period detention.
22You have been in adult prison for 545 days or over 18 months. You have moved from being an 18 year old to a 19 year old. Your criminal history and failures to reform yourself on Children's Court orders and youth parole means that the court must consider other ways to facilitate your reform. This is a very important principle when sentencing young offenders. It is in the community's interest to reform you and set you on a better path. The community is more protected if you do grow up and do so in a way that does not put young people or others in danger by your violence or aggressive behaviour, use of weapons, and other criminal or anti-social behaviour.
23The Sentencing Act 1991 (Vic) restrictions that I have spoken of mean that, for the armed robbery and the home invasion, there must be a gaol term and gaol alone. That is not the case with the recklessly cause injury charge. In the end, to express the necessary denunciation, the important deterrence to you and to others, and to protect the community, and to facilitate your reform, I considered that a term of adult imprisonment, together with a Community Corrections Order for the recklessly cause injury, will ensure that there is just punishment which will simultaneously operate to supervise you, have hanging over your head the risk of further imprisonment should you not comply, and hopefully deter to you from further offending. All of that is achieved through a Community Corrections Order following your lengthy period of incarceration. I say all this while I remain committed to and guided by the sentencing principles regarding young offenders.
24Most particularly, that adult gaol should be avoided, if at all possible, and that the need for adult imprisonment for someone 18 or 19 years old, must be a very intense need, much more so than for other older offenders. Principles set out in Azzopardi make all this clear.[1] I will not go over all of them now, but rather indicate that I have adopted those principles suitably modified in coming to this difficult decision. I had you assessed for a Community Corrections Order, together with a mental health report. They were very helpful. You were found suitable for a corrections order. You need, it seems to me, to commence mental health assessment and treatment to deal with problems that perhaps are emerging, perhaps you don't recognise, relating to post-traumatic stress disorder and anti-social personality traits. You need support, treatment and help in dealing with, in particular, prescription drugs and cannabis. You have to put those things behind you.
[1]Azzopardi & Ors v The Queen [2011] VSCA 372.
25You will need supervision upon your release. It has not gone well on your youth parole, but you have to understand that it is necessary to comply with the supervision of the Office of Corrections. Should you not, they will breach you, and you will come back before me. I will also impose a requirement that you return back to this court for judicial monitoring. I will see how you are going. I want to see that there has been stability, movement towards the course Certificate IV that you say you want to study for and achieve, heading towards personal trainer type work or the like. I do not want to see that you have fallen back into other crimes, that you are not turning up to things when you are required, or that you are living your life as it was before. If that is the case, no doubt you'll be breached.
26You will come back before me and there will be no choice other than to return you back for a lengthy period of time in adult gaol. You will then start to seriously waste the good years of your life as you have in a way through youth justice. This will result in the dead end of an adult gaol. You will, on the corrections order, live with your mother. Very much to her credit she still supports you and your siblings. So doing the best I can I sentence you to the following:
27Charge 1, the armed robbery, I sentence you to 12 months' imprisonment.
28Charge 2, the recklessly cause injury, I impose a two year Community Corrections Order, with conditions that I will outline.
29Charge 3, home invasion, I impose a sentence of 14 months.
30
I order that five months of Charge 1 be cumulative upon Charge 3, giving a total effective sentence of 19 months' imprisonment, together with the
Community Corrections Order that I have just imposed.
31I declare that you have served 545 days in custody on remand. I ensure that this figure is counted as days having been reckoned. I will declare that is part of the sentence that I have just imposed and enter that declaration in the records of the court, so the prison authorities are left in no doubt you have done 545 days of the 19 months that I have imposed. Had you pleaded not guilty to these offences and then been found guilty of them, I would have imposed a sentence of three years and eight months, with a non-parole period of two years and four months.
32With respect to the corrections order, a document will be produced and it will set out the conditions that apply to everyone who's on a Corrections Order. I will summarise them so that you understand. They are mostly about cooperation with Corrections. But the first condition is the most important and it is this; that you must not commit an offence that is punishable by imprisonment in the next two years. I urge you to commit no more offences ever.
33But if you do commit an offence punishable by imprisonment in the next two years, then you will breach the Corrections Order, and you will have to return before me to be re-sentenced. Now every offence you can think of virtually is punishable by imprisonment, stealing a can of drink from the service station, driving while disqualified, they are all offences that would breach this order. And it would not matter if the magistrate gave you a fine or something, that does not matter, it is the fact that you committed the offence, and you would come back before me. As I say, the mercy shown here will not be repeated.
34Then there are other things that are about cooperation. You have got to report to the Office of Corrections in Geelong, within two days of getting out of custody. You have to tell them if you change your address, or get a job or change your job, do you understand? You must tell them if you wish to leave the state to go on a holiday somewhere. They will probably give you approval, but you must tell them you are planning it before you go.
35You must abide by all their lawful directions. It is just about cooperation, do you understand?
36OFFENDER: Yes, I do.
37HIS HONOUR: All right. The special conditions that apply to you is that you have to be assessed and treated, including testing for drug addiction. You have to be assessed and treated for mental health problems. That might mean going to your general practitioner, your doctor, and getting a mental health plan. But I think it is wise just to get some sense. People are indicating that you need someone to help you with the developing problems that have been seen with you. And you have to be on judicial monitoring, that means coming back before me on a date that suits in about three or four months. Do you understand all that?
38OFFENDER: Yes, I do.
39HIS HONOUR: Do you consent to doing that order.
40OFFENDER: Yes, I do.
41HIS HONOUR: All right. Well we will note that on the form itself. It will say that you gave your consent. So, we do not need your signature. Is there anything else required? There is the summary offence.
42MR BARREIRO: It was failed to give his pin code.
43HIS HONOUR: All right. That's proven and there's no further order.
44HIS HONOUR: Anything else?
45COUNSEL: No, Your Honour.
46HIS HONOUR: All right. Produce that document, in due course you'll get a copy and give him a copy. Mr Muvunyi, the prison will have to work out precisely when you are eligible for release.
47OFFENDER: Yes, Your Honour.
48HIS HONOUR: But it's essential that there is some planning, hopefully. Your mother knows?
49OFFENDER: Yes, she does.
50HIS HONOUR: Your brothers know, and that you are ready to move back home. Stay quietly there, don't search out any of these crew that used to run with around Geelong. Stay at home, don't take drugs and get started on a different pathway, do you understand?
51OFFENDER: Ah, yes, I do, yes.
52HIS HONOUR: Otherwise, you're just going to do a life sentence in short, little instalments that get longer and longer. That's what's going to happen. I could add that you have seen people that are in and out and have been there for a long time, don't be one of them.
53All right, 10 May at 9.30 will be the judicial monitoring. These lawyers don't have to be there. But there you go. All right. Is there anything further?
54COUNSEL: No, Your Honour.
55If there's nothing further I thank counsel for their considerable assistance in a up and down sort of plea.
56MR BARREIRO: Please the court. Thank you, Your Honour.
57HIS HONOUR: Thank you.
- - -
0