Director of Public Prosecutions v Naing
[2025] VCC 1683
•18 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-25-01246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AUNG NAING |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2025 | |
DATE OF SENTENCE: | 18 November 2025 | |
CASE MAY BE CITED AS: | DPP v Naing | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1683 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Armed robbery – Theft – Commit indictable offence whilst on bail – Objective gravity-mid-range – Assessed as suitable for a CCO – Homelessness – Drug addiction - Low support in community – Non-citizen – Risk of deportation – Extra-curial punishment – Prospects of compliance with conditions doubtful – High likelihood of breach – CCO not made.
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Crow [2003] VSCA 104; Lyddy v The Queen [2019] VSCA 35; DPP v Mehta [2021] VCC 1949; DPP v Mathews [2018] VCC 1456; DPP v Hardham-Jones [2016] VCC 1820; Muhumud v The Queen [2020] VSCA 91; DPP v Church [2020] VCC 1048; DPP v Jamoral [2017] VCC 1201; R v Ngo [1999] 3 VR 265.
Sentence: Total Effective Sentence: 2 years and 9 months' imprisonment - Non-parole period of 20 months - S 6AAA: 3 years and 6 months' imprisonment with a non-parole period of 2 years and 5 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr E Young | Office of Public Prosecutions |
| For the Accused | Mr A Cameron | Angus Cameron and Partners |
HIS HONOUR:
Introduction
1Aung Naing, you have pleaded guilty to:
(a) Three charges of armed robbery, contrary to section 75A of the Crimes Act 1958 (Vic) (‘Crimes Act)’, each of which carry a maximum penalty of 25 years’ imprisonment.
(b) One charge of theft, contrary to section 74(1) of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment.
2You have also pleaded guilty to, and agreed to this Court sentencing you for related summary offences. They are four charges of committing an indictable offence whilst on bail, contrary to section 30B of the Bail Act 1977 (Vic), which carry a maximum penalty of 30 penalty units ($6,105.30) or 3 months’ imprisonment.
3You are to be sentenced on the basis of the Summary of Prosecution Opening for Plea dated 29 September 2025.[1] I note this is an agreed document.
[1] Exhibit P1.
Circumstances of Offending
Incident 1 Charge 1 – Armed Robbery on 3 April 2025 at Liquorland
4On Thursday 3 April 2025, staff members Noah Fiorenza and Aedan Conn were working at Liquorland Brandon Park located at the intersection of Springvale Road and Ferntree Gully Road, Wheelers Hill.
5At approximately 12.05pm you entered the store carrying a Coles shopping bag. You walked to the spirits shelf and placed four bottles in your bag:
(a) 1 x bottle of Jack Daniels Tennessee Whiskey valued at $88.00;
(b) 1 x bottle of Jim Beam white Bourbon 1 litre valued at $76.00;
(c) 1 x bottle of Jack Daniels Tennessee Honey valued at $68.00; and
(d) 1 x bottle of Jim Beam white Bourbon 1 litre valued at $76.00.
6Mr Conn and Mr Fiorenza noticed your behaviour and called security. Mr Conn stood at the counter and Mr Fiorenza stood in the centre of the store.
7As you walked towards the exit door, you were holding a brown slingshot with a circular projectile in your hands.
8Mr Fiorenza walked towards you. You raised the slingshot in your left hand pointing it towards him and pulled the sling back with your right hand. You continued walking and pointed the slingshot towards Mr Conn with the sling still pulled back.
9You walked out of the store with the stolen items in your possession, making no attempt to pay for the items.
10The total value of items stolen was $308.00.
11The incident was captured on CCTV.
12You were on bail at the time of the offence (Summary Charge 6 – Commit Indictable Offence Whilst on Bail).
Incident Two Charge 2 – Theft on 4 April 2025 at Chemist Warehouse
13On Friday the 4th of April 2025, staff member Hayley Medley was working at Chemist Warehouse Glen Waverley located at 55/59 Railway Parade North, Glen Waverley.
14At approximately 8.54am, you walked into the store wearing a hoodie with the hood up over your head. You went to the perfume section and placed the following items under your arm:
(a) 1 x Diesel Brave 75ml 3 piece fragrance set valued at $59.99;
(b) 1x Dunhill Desire Blue 100ml fragrance valued at $49.99;
(c) 1 x Blauer USA United Man Eau de Toilette 100ml valued at $29.99; and
(d) 2 x Delta Power Eau de Parfum 125ml valued at $49.99 each.
15You walked out of the front door of the store carrying the items under your arm having made no attempt to pay. Ms Medley observed the theft and followed you outside, prompting you to run off.
16The total value of items stolen was $239.95.
17The incident was captured on CCTV.
18You were on bail at the time of the offence (Summary Charge 7 – Commit Indictable Offence Whilst on Bail).
Incident Three Charge 3 – Armed Robbery on 8 April 2025 at Chemist Warehouse
19On Tuesday 8 April 2025, Ms Medley and Andre Bassaly were working at Chemist Warehouse Glen Waverley located at 55/59 Railway Parade North, Glen Waverley.
20At approximately 8:04am, you entered the store wearing a backpack and holding a wooden brown slingshot. You were wearing a hoodie with the hood up over your head and a surgical face mask partially covering your face. You walked to the perfume section and took the following items:
(a) 1 x Police To Be Men’s 75ml fragrance pack valued at $24.99;
(b) 1 x Police To Be Born To Shine Eau de Toilette fragrance pack valued at $24.99; and
(c) 1 x Joop Homme Eau de Toilette 125ml valued at $49.99.
21You placed the items under your arm. As you were walking to the front door to leave, Ms Medley stood in front of you. She bravely put her hand out and said “no”. You stopped and looked down at your hands which were holding the slingshot with the elastic band pulled back pointing at Ms Medley’s stomach. Ms Medley was scared and stepped aside to allow you to exit the store.
22You made no attempt to pay for the items.
23The total value of items stolen was $99.95.
24The incident was captured on CCTV.
25You were on bail at the time of the offence (Summary Charge 8 – Commit Indictable Offence Whilst on Bail).
Incident Four Charge 4 – Armed Robbery on 10 April 2025 at Chemist Warehouse
26On Thursday 10 April 2025, Ms Medley and Massoud Safi were working at Chemist Warehouse Glen Waverley located at 55/59 Railway Parade North, Glen Waverley.
27At approximately 9:35am, you entered the store wearing a hoodie and carrying a backpack. You had the hood up over your head and were wearing a face mask partially covering your face.
28You had your right hand in your hoodie pocket. Ms Medley recognised you from the prior incidents above and called out to Mr Safi who was standing at the front counter.
29Mr Safi bravely ran out from the counter and approached you. Mr Safi told you that you needed to leave. You produced a brown coloured slingshot pointing it at Mr Safi’s face with the rubber band sling pulled back causing Mr Safi to be fearful. Mr Safi grabbed a shopping basket and held it up in front of him to protect himself.
30You walked to the perfume section of the store where you took the following items:
(a) 2 x Police To Be Men’s 75ml 2 piece fragrance sets.
31Mr Safi followed you to the perfume section. You produced the slingshot again aiming it towards Mr Safi. Mr Safi continued holding the shopping basket up to protect himself. Mr Safi told you to drop everything and that the police were on their way.
32You ran towards the exit of the store carrying the stolen items. You exited the store and continued running towards Springvale Road, making no attempt to pay for the stolen items.
33The total value of stolen items was $59.98.
34The incident was captured on CCTV.
35You were on bail at the time of the offence (Summary Charge 9 – Commit Indictable Offence Whilst on Bail).
Arrest
36On Thursday 17 April 2025, you were arrested by police. During a search, Senior Constable Gribbem found a wooden brown coloured slingshot with two elastic bands attached in your jacket pocket.
37The home-made slingshot was seized and photographed. You were transported to Springvale Police Station for interview. A recorded interview was conducted between you and Detective Senior Constable Thorneycroft in the presence of Detective Senior Constable Kishida and Burmese Interpreter Wahidah Pan.
38You made the following admissions in respect of the offending:
(a) Incident 1:
(i)You went to get some alcohol; Q52.
(ii)A staff member tried to stop you so you aimed the slingshot at him; Q53.
(iii)You have no money so you didn’t want to pay; Q56.
(iv)You don’t drink alcohol but use it to pay for drugs; Q58-61.
(v)You traded the alcohol for drugs that day; Q62.
(b) Incident 2
(i)You agreed you were the offender shown in the CCTV; Q85.
(ii)You went to get perfume; Q86.
(iii)You were craving for drugs; Q87.
(iv)You traded the stolen perfume for drugs (heroin); Q91-92.
(c) Incident 3
(i)You agreed you were the offender carrying a slingshot shown on the CCTV stills; Q99.
(ii)You went to get perfume and held the slingshot so no one would come up to you; Q101-105.
(iii)You used the stolen perfume to pay for drugs; Q110.
(d) Incident 4
(i)You agreed you were the offender shown on the CCTV stills; Q118.
(ii)You went to get perfume; Q120.
(iii)You pointed the slingshot to stop staff from approaching you; Q132.
(iv)You weren’t going to pay because you don’t have money; Q121.
(v)You didn’t consider the slingshot to be a weapon. You said in Thailand they are used to hunt birds; Q123-125.
(vi)You said you don’t carry it just to scare away staff but also to protect yourself: Q126.
(vii)When asked if you would feel afraid if someone pointed a slingshot at you, you said you have one too so you would use it. If you didn’t have one, you would look for something else to protect yourself; Q129-131.
39You admitted that the slingshot found on you during the arrest was the slingshot used in the offending and that you had made it yourself (Q168-171).
Objective gravity
40I consider your offending to be mid-range. Starting with the three armed robberies, while I accept that you may not have entered the retail outlets with the intent to commit armed robberies, you were intending to steal. As you explained to a Corrections officer, you had the slingshot to ‘assist’ you in your offending.[2] I take this to mean that you were prepared to use the weapon to respond to any retail worker who challenged you.
[2] Community Correction Order Assessment Outcome Report dated 31 October 2025 (‘CCO Assessment report’).
41Significantly, you committed three separate armed robberies on different days at different stores and against different retail workers. This elevates the objective seriousness of your offending.
42The value of the goods you stole was not high. However, as Winneke P explained in the case of DPP v Crow:
‘… [t]he gravity of the offence of armed robbery is not to be measured by the quantity, quality or value of the object of the intended theft. The essence of armed robbery is the instilling of fear into the victim, by the use of force and arms, so that he or she will give up the object which the perpetrator intends to steal’.[3]
[3] [2003] VSCA 104, 9 [13].
43I have no doubt that you instilled fear in each of the retail workers.
Victim impact
44No victim impact statements were provided to the court. However, the absence of any such statements does not preclude a sentencing Judge from inferring that the victims were adversely affected by the offending.[4]
[4] Lyddy v The Queen [2019] VSCA 35, 17 [74].
45I have no doubt that these retail workers, and in particular, Ms Medley who was the victim of two of your robberies and was also present during the theft, would have found the incidents disturbing and frightening.
46The violence faced by retail workers is notorious and completely unacceptable. General deterrence plays an important role in sending the message that such conduct will be met by stern punishment.
Personal circumstances
47You were born in Myanmar and are currently 31 years’ old. You spent most of your childhood in Thailand and moved to Australia with your mother in 2016. You arrived in Australia as a refugee and now have permanent residency but not citizenship.
48Your father died in around 1998. You are the youngest of four siblings, with one older brother and two older sisters. You do not have a relationship with any family remaining in Myanmar or Thailand.
49You did not complete school beyond year-three, never attending school in Australia. You do not speak English and are illiterate in your native language, Burmese. Your capacities in that language are basic. You do not have any significant employment history. You have been homeless for at least the last six years.
50You have been a drug user since childhood. You commenced drinking alcohol in Thailand at thirteen years-old and were soon introduced to cannabis. After arriving in Australia, you were introduced to methamphetamine and heroin. You have injected both drugs for many years, continuing up until your remand. You do not recall ever participating in alcohol and drug counselling; however, you did receive a bond in 2018 with a condition to do so. That bond was marked as ‘dismissed - compliance with bond’ in 2019.
51Your criminal record dates back to 2018 when you were imprisoned by the Magistrates’ Court for 95 days for an assault and failure to answer bail. Since then you have received further brief custodial sentences for theft from shops (twice in 2023).
52While you have not previously committed an armed robbery, it is concerning that those short sentences did not deter you from dishonesty offending. The current offending represents a concerning escalation.
53This means that specific deterrence and community protection are relevant sentencing purposes in your case along with general deterrence.
Matters in mitigation and prospects of rehabilitation
54First and foremost are your pleas of guilty which were expressed very early in the life of your case – prior to the first committal mention. You have spared the victims the trauma of re-living their experiences by giving evidence and you have saved community resources. You are entitled to a significant discount to reflect the utilitarian value of your plea.
55Your plea is both a recognition of your responsibility for the offending and evidence of genuine remorse. The admissions you made to police are further evidence of remorse.
56As you are a non-citizen of Australia, you face a real risk of deportation when you are released from custody. This will no doubt cause you anxiety while serving your sentence.
57Finally, I accept your counsel’s submission that your time in custody will be more difficult by virtue of your limited English language skills.
58I have taken these matters into account in mitigation of your sentence.
59Due to the combination of your history of drug addiction, poor work history, lack of language skills and homelessness with no real support in the community, it is difficult to be optimistic about your future prospects, which I assess as poor.
Current sentencing practices
60A sentencing Judge must have regard to current sentencing practices. The purpose of this is to promote consistency in sentencing.
61The court was referred to six cases to inform its understanding of current sentencing practices in relation to the offence of armed robbery when committed in retail premises.
62Your counsel referred the court to three decisions of this court in which offenders who had pleaded guilty to a charge of armed robbery were sentenced to Community Correction Orders (‘CCOs’) either as standalone sentences or in combination with a term of imprisonment.[5]
[5] DPP v Mehta [2021] VCC 1949; DPP v Mathews [2018] VCC 1456; DPP v Hardham-Jones [2016] VCC 1820.
63Previous first instance decisions are of limited assistance to a sentencing court as each case varies both as to the offending and the offender.
64With that limitation in mind, I have read each of the decisions. Each involved lower level armed robberies on retail outlets using makeshift weapons such as a syringe. The offenders were motivated to steal to feed drug habits. The most important distinction between those cases and yours is that you have pleaded guilty to three armed robberies and a theft. Each of your armed robberies exposed different retail employees to a risk to their safety which is a central focus of sentencing for this crime. Your offending spanned a period of eight days and occurred while you were on bail.
65Further, none of the three offenders had a criminal record such as the one you have.
66The prosecution also referred the court to three cases, each of which I have read.[6]
[6] Muhumud v The Queen [2020] VSCA 91 (‘Muhumud’); DPP v Church [2020] VCC 1048 (‘Church’); DPP v Jamoral [2017] VCC 1201 (‘Jamoral’).
67Muhumed may be distinguished as the sentence of 4 years and 6 months for three armed robberies was imposed after a trial; the offender was in company and was subject to a CCO and on bail at the time and had a full scale IQ of 74. He also had a ‘substantial criminal history’ which included sentences for rape, violence, dishonesty, resisting police and robbery.[7]
[7] Muhumud (n 6) 6 [23].
68Further, the Court of Appeal was only concerned with the question of parity with the co-accused. The 22 year old co-accused, who only participated in two of the robberies and was also on bail at the time of offending, received a combination sentence. His criminal record was not as extensive as his older co-accused’s.
69The offender in Jamoral was sentenced to 3 years and 6 months’ imprisonment after pleading guilty to a single armed robbery at a retail premise while armed with a knife. He had a substantial criminal history including a prior armed robbery and intentionally cause serious injury offence. His severe mental illness ‘significantly moderated’ his moral culpability.
70Church saw a sentence of 4 years’ imprisonment imposed on an offender who had pleaded guilty to a single armed robbery on a service station while armed with two weapons. He had a criminal record and had a severe mental illness which reduced his moral culpability.
71There is clearly a wide range of sentences in these six cases of armed robberies committed in retail outlets.
Consideration
72I accept that your pleas of guilty have significant utilitarian value. Your victims are saved the anxiety and distress of re-living their experiences at your trial and the community is saved the resources of a trial.
73Your plea is an early one and is indicative of your acceptance of responsibility and some evidence of remorse.
74I have taken into account the significant challenges you faced during your childhood as well as the extra-curial punishment you will face in light of the real risk of your deportation.
75In comprehensive and helpful submissions, your counsel Mr Cameron submitted that a combination sentence involving a period in custody, to be followed by a CCO, was appropriate in your case. He submitted that you had never had the benefit of being supported in the community.
76The prosecution submitted that a term of imprisonment, other than in combination with a CCO, is within the sentencing range.[8]
[8] Prosecution Submissions on Plea dated 30 October 2025, 1 [1].
77At your counsel’s request, I arranged for you to be assessed for your suitability for a CCO. I made it clear that I had not made up my mind that a combination sentence is appropriate.
78A combination sentence may only be imposed when the period of imprisonment to be served, after pre-sentence detention is deducted, is one year or less.[9]
[9] Sentencing Act 1991 (Vic) s 44(1) (‘Sentencing Act’)..
79You have served approximately seven months on remand. A further 12 months in custody would mean a total effective term of imprisonment of 19 months.
80While recognising the additional punitive effect of a CCO, I do not consider that the objective gravity of your offending would be appropriately reflected in a combination sentence having regard to:
(a) the available maximum penalties of 25 years’ imprisonment on each of the three armed robberies; and
(b) the need to apply a presumption of cumulation as between the four sentences because you were on bail at the time of all of the offending.[10]
[10] Sentencing Act, s 16(1A)(e); 16(3)(c).
81I have therefore determined that a combination sentence is not within range in your case. I do not therefore need to consider your suitability for such an order.
82However, for completeness and in deference to your counsel’s submissions, I note that the court received a report dated 31 October 2025 from Corrections.[11] The author notes that you have a ‘significant long-standing history of problematic poly-substance use’. You expressed your willingness to ‘cease substance use and partake in treatment and rehabilitation services upon release into the community’.[12]
[11] CCO Assessment report (n 2) 2.
[12] CCO Assessment Report (n 2) 2.
83Corrections assesses you as a high risk of general reoffending on the basis of your homelessness and transiency over the last 6-7 years. The report notes that you do not have a phone, are not in receipt of Centrelink payments, have no other financial supports and no family support in the community.
84Despite this, you have been assessed as suitable to undertake a CCO.
85In supplementary submissions dated 10 November 2025, Mr Cameron urged the court to give effect to the recommendation. He submitted that your homelessness and language difficulties should not be disqualifying. He emphasised the importance of your rehabilitation.
86A court is not required to follow a recommendation in a pre-sentence report. As with any other report or opinion obtained in the course of a plea, ‘it should only be given the weight to which it is entitled’.[13]
[13] R v Ngo [1999] 3 VR 265, 26 [48].
87In this case, I consider that the likelihood that you would comply with the conditions of a community-based order, if I made one, would be low. This is due to your life circumstances. While I accept that homelessness should not disqualify a person from having the benefit of a community-based order, it is the experience of this court that the lack of stability in a homeless person’s life often results in an inability to comply with the strict regimen of meetings that such an order imposes.
88Therefore, even if I had accepted that a combination sentence was open, I would not have imposed one. There is no point in making an order where it is likely that it will be breached.
Orders
89On charge 1, armed robbery, you are convicted and sentenced to 2 years’ imprisonment.
90On charge 2, theft, you are convicted and sentenced to 6 months’ imprisonment.
91On charge 3, armed robbery, you are convicted and sentenced to 2 years’ imprisonment.
92On charge 4, armed robbery, you are convicted and sentenced to 2 years’ imprisonment.
93On summary charge 6, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month’s imprisonment.
94On summary charge 7, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month’s imprisonment.
95On summary charge 8, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month’s imprisonment.
96On summary charge 9, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month’s imprisonment.
97The sentence on charge 4 is the base sentence.
98Four months of the sentence on each of charges 1 and 3 and 1 month of the sentence on charge 2 are to be served cumulatively on the base sentence and on each other.
99The remaining sentences are to be served concurrently.
100The total effective sentence is therefore imprisonment for 2 years and 9 months.
101You will be eligible for parole when you have served 20 months in custody
102I declare pursuant to section 18 of the Sentencing Act 1991 that the period of 215 days, not including today, be reckoned as having been served under the sentence the court imposes today.
103Pursuant to section 6AAA of the Sentencing Act 1991, had you pleaded not guilty, the head sentence would have been 3 years and 6 months and the non-parole period would have been 2 years and 5 months.
104I make the disposal order sought noting that it is unopposed.
0
8
0