Director of Public Prosecutions v Ngapare

[2022] VCC 1544

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01784 and CR-21-01782

DIRECTOR OF PUBLIC PROSECUTIONS

v

KLAZE NGAPARE and BRENDAN WOODS

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2022
DATE OF SENTENCE:	15 September 2022
CASE MAY BE CITED AS:	DPP v Ngapare & Anor
MEDIUM NEUTRAL CITATION:	[2022] VCC 1544

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Attempted armed robbery – Causing injury recklessly – Possess controlled weapon without excuse – Use of hunting knife and knuckle duster – Serious offending committed in company and involved some planning – Young offenders – No prior criminal history – Nearly three years elapsed since the offending – Both offenders maintained rehabilitation without any further offending – Late plea of guilty – Very good prospects for rehabilitation

Legislation Cited:      Crimes of Act 1958 (Vic); Control of Weapons Act 1990 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen (2021) 96 MVR 344; Boulton v The Queen (2014) 46 VR 308

Sentence:                  Both offenders sentenced to a Community Correction Order for a period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P Thorp (Plea) Mr D Rachagan (Sentence)	Office of Public Prosecutions
For Accused NGAPARE	Mr N Goodfellow (Plea) Mr J Rabl (Sentence)	Victoria Legal Aid

For Accused WOODS Mr R Bhattacharya Warren, Graham & Murphy Pty Ltd

HIS HONOUR:

Introduction

1Klaze Ngapare and Brendan Woods, you both have pleaded guilty to separate indictments containing the same two charges. Charge 1 is an offence of attempted armed robbery contrary to ss 75A and 321M of the Crimes Act 1958. This offence carries a maximum penalty of 20 years’ imprisonment. Charge 2 is an offence of causing injury recklessly contrary to s 18 of the Crimes Act 1958. This offence carries a maximum penalty of 5 years’ imprisonment.

2Both of you have also consented to this Court hearing and pleaded guilty to a related Summary Charge of possess controlled weapon without excuse contrary to s 6(1) of the Control of Weapons Act 1990. This offence carries a maximum penalty of 120 penalty units or 1 year imprisonment.

3Mr Woods, you were arraigned and pleaded guilty before me on 16 June 2022.

4Mr Ngapare, you sought a sentence indication at a hearing on 21 June 2022. I indicated at that hearing that I would not impose a sentence involving a term of imprisonment if you were to plead guilty. You were arraigned and pleaded guilty on the same day following the indication.

5Your matters were listed for a plea hearing before me on 18 August 2022. At that hearing, I ordered pre-sentence reports to assess each of you in respect of your suitability for a Community Correction Order (‘CCO’).

Circumstances of the offending

6The circumstances of your offending are set out in a Summary of Prosecution Opening upon Plea.[1] No issue was taken by either of your counsel with the contents of the opening.

[1]Exhibit A.

7On the night of 31 October 2019, Mr Robert Donovan was at the old Nylex factory in Sale. He was contracted to clean the site. He was accompanied by his friend Ms Christine Ash.

8At approximately 9pm, both of you attended the old Nylex factory.

9You found Mr Donovan in the open yard of the factory grounds. Both of you had concealed the lower portions of your faces with either masks or bandanas. You, Mr Ngapare, were armed with a hunting knife approximately 30 centimetres in length. You, Mr Woods, were armed with a knuckle duster. Both of you demanded that Mr Donovan give you money and his phone. You repeated the demand at least four more times (Charge 1 - Attempted Armed Robbery).

10Both of you then rushed Mr Donovan, and you Mr Ngapare, punched him in the head, knocking him to the ground. You both held Mr Donovan on the ground. Mr Ngapare, you held your knife to Mr Donovan’s throat and then to the back of his head. Mr Donovan could feel the blade digging into the back of his head. You then waved the knife in front of Mr Donovan’s face and at one stage, struck him in the face causing a cut above his right eye. Both of you then punched and kicked Mr Donovan (Charge 2 - Causing Injury Recklessly).

11Ms Ash then appeared at the scene. You, Mr Woods, remained standing over Mr Donovan while Mr Ngapare ran at Ms Ash with the knife still in his hand. Following a momentary stand-off with Ms Ash, both of you ran from the factory grounds.

12Mr Donovan and Ms Ash followed you both and noted the registration number of your vehicle. Ms Ash called Triple Zero and reported the incident to the police.

13Mr Donovan admitted himself to the Sale Hospital. He was treated for a number of injuries, including lacerations to the right eyebrow, nose, back of the head, a lump to the right side of his head, and pain to the back of his head.

Brendan Woods arrest and interview

14The next day, 1 November 2019, police attended your home address, Mr Woods. They located the vehicle in which you had travelled with Mr Ngapare to the old Nylex factory. You had removed the registration plates and parked the car in the backyard. You were at work when the police arrived. Police spoke to your family who then made contact with you. You returned home and surrendered yourself to police. You were conveyed to Sale Police Station and interviewed. You admitted going to the Nylex factory to confront someone. The confrontation became heated and you asked the person if he owed money to anyone. You maintained that you defended yourself, and when Ms Ash arrived, you left the scene. You refused to identify your co-accused.

15With your consent, police conducted a search of your Holden wagon and located a pair of knuckle dusters under the driver’s floor mat (Related Summary Charge  – Possess Controlled Weapon).

Klaze Ngapare’s arrest and interview

16Mr Ngapare, you were arrested on 4 November 2019 and conveyed to the Sale Police Station for interview. You admitted going to the Nylex factory with Mr Woods where both of you tracked down Mr Donovan and ‘fixed him up for being a scumbag drug dealer’. You denied concealing your face or being in possession of a weapon.

17Police executed a search warrant at your address and located a hunting knife under the mattress of a bed (Related Summary Charge – Possess Controlled Weapon).

Impact of the offending

18Victim impact statements made by Mr Donovan and Ms Ash were tendered by the prosecution.[2]

[2]Exhibits B and C.

19Your offending, unsurprisingly, has had a significant impact upon Mr Donovan. He struggles to leave his house, and when he does, he is concerned about being attacked. He hasn’t worked since the incident and struggles to sleep well. He is reluctant to socialise with people whom he does not know. He has a permanent scar across his nose and eyelid. He feels frustrated, angry and finds it hard to get motivated.

20Similarly, Ms Ash is fearful of her safety and struggles to leave her house. She has also had trouble with sleeping.

21I will take into account, as I must, the impact of your offending upon Mr Donovan and Ms Ash.

Personal circumstances of Klaze Ngapare

22Mr Ngapare, you are now aged 24. You were 21 at the time of the offending. You have no criminal history of any nature.

23You were born and raised in country Victoria and completed Year 12 in 2015. You went on to complete two years of a signwriting apprenticeship. You are now working as a harvest supervisor for most of the year at a farm owned by your partner’s parents. You also work as a bricklayer during the farm’s off season.

24You enjoy a strong relationship with your partner with whom you have been with for the last 8 years. Together, you have two children aged five and two.

25You have also maintained a positive relationship with your parents and your three siblings.

26You drink occasionally and use cannabis sporadically, particularly in times of stress. You enjoy good health and do not suffer from any mental health issues.

Personal circumstances of Brendan Woods

27Mr Woods, you were 22 at the time of the offending and are now aged 25. You have four siblings, two older brothers, one younger brother and a younger sister. You describe your father as being violent during your childhood and inflicting abuse upon you. You have not maintained any contact with your father. You also suffered sexual abuse from an unnamed person. You left home at the age of 14 and lived with friends until you moved in with your partner. You completed Year 10 and undertook and completed an apprenticeship at Holden. You are a qualified mechanic and worked for Holden for four and a half years. As a result of these charges, you lost your employment at Holden. For the last three years, you have been working as a truck driver for a removalist company.

28You have been with your partner for the last ten years. You have no children.

29You have been using cannabis on a regular basis since the age of 16. You have no other drug or alcohol issues.

30You were diagnosed with Attention Deficit Hyperactivity Disorder at the age of five and clinical depression at the age of 15. Dr Cunningham, in his psychological report,[3] states that you meet the DSM-5 criteria for Post-Traumatic Stress Disorder. In his opinion, this stems from your experience of sexual and physical abuse during your childhood.

[3]Exhibit W3.

31You have been prescribed Sertraline since the age of 15. You told Dr Cunningham, the medication helps you immensely.

32You also have no criminal history.

Gravity of the offending

33There can be no doubt that your offending was serious. It was committed in company and involved some planning. Both of you attended the factory armed with weapons and attempted to avoid detection by covering your faces. The offence of causing injury recklessly involved the use of a knife resulting in a laceration to  Mr Donovan’s right eyebrow. Mr Donovan also sustained lacerations to his nose and the back of his head. It was a frightening experience from which he hasn’t recovered. Ms Ash similarly remains fearful after witnessing your violent acts.

34Such despicable and terrifying violence must be condemned on behalf of the community. General deterrence must assume importance. You must both be justly punished. Your youthfulness in the face of no prior criminal involvement brings into focus the importance of your rehabilitation. In this matter, furthering and continuing your rehabilitation is intertwined with the protection of the community.

35I was told that your offending occurred because Mr Donovan owed a drug debt. That is no reason for two young, hardworking men of good character to lose all rhyme and reason and embark upon violent criminal conduct.

Matters in mitigation

36There are matters in mitigation that are common to both of you.

37The offending conduct occurred in October 2019. Nearly three years have elapsed. At the time of the offending, both of you were young and remain so. The offending was out of character. Neither of you had been in any trouble prior to this offending, and enjoyed strong relationships and employment. Three years later, you have maintained consistent employment and maintained stability in your relationships. Although, you Mr Woods have been having issues with your partner which you are attempting to resolve. Importantly, neither of you have been in any further trouble with the police since this offending.

38Whilst this offending is serious, I must balance that with matters relating to your youth and the importance of furthering your rehabilitation, in circumstances where both of you have demonstrated over an extended period, that this offending was an aberration.

39I have had regard to the references tendered in support of you both.[4] They further demonstrate your positive qualities and the out of character nature of this offending.

[4]Exhibits N2, N3, N4, W2.

40I accept that both of you have very good prospects of rehabilitation.

41Your pleas of guilty came late in the day. The matter proceeded to a contested committal hearing. It had progressed through this Court to a trial listing. Nevertheless, your late pleas of guilty have saved the witnesses from having to give evidence again years after the incident. Your pleas have saved the time and expense of a trial. Further, your pleas of guilty have assisted in reducing the backlog of trials that this Court faces. The Court must encourage those who are guilty to so plead by providing an actual and palpable discount on sentence.[5]

[5]Worboyes v The Queen (2021) 96 MVR 344.

42You, Mr Woods, spent seven days in custody before being granted bail. I am told that this experience served to highlight to you the importance of not getting embroiled in any criminal offending again.

43In sentencing you, I must bear in mind the principle of parity. Both of you were complicit in the offending. Your backgrounds and ages are fairly similar.

44You, Mr Ngapare, played the more active role. However, it was your idea, Mr Woods, to commit the offending. Your counsel Mr Woods told the Court that the victim owed a debt to your partner’s father. You involved Mr Ngapare in the offending by requesting him to assist you in recovering the apparent debt.

45Ultimately, I am able to balance the purposes of sentencing, in particular general deterrence, denunciation and your rehabilitation, by a suitably structured CCO. I have firmly borne in mind the guidance from the Court of Appeal in Boulton v The Queen (2014) 46 VR 308.

46Mr Ngapare, on Charges 1 and 2, you are sentenced to a CCO that will commence today and last for a period of 18 months.

47In respect of the related Summary Charge, you are convicted and fined $350.

48Mr Woods, on Charges 1 and 2, you are sentenced to a CCO that will commence today and last for a period of 18 months.

49In respect of the related Summary Charge , you are convicted and fined $200.

50Every CCO has core conditions that you both must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

51In addition to the mandatory core conditions, the CCO will also include special conditions.

52In respect of you, Mr Ngapare, the special conditions are:

·        First, you must perform 200 hours of unpaid community work.

·        Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Third, you must engage in programs that address factors relating to your offending behaviour.

53You must report to Sale Community Correctional Services within two working days.

54In respect of you, Mr Woods, the special conditions are:

·        First, you must perform 140 hours of unpaid community work.

·        Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Third, you must undergo any mental health assessment and treatment as directed.

·        Fourth, you must engage in programs that address factors relating to your offending behaviour.

·        Fifth, you will be subject to supervision as directed for the duration of the CCO.

55You must also report to Sale Community Correctional Services within two working days.

56Both of you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the mandatory or special conditions, then you could be charged with the offence of breaching the order.

57The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were either of you to breach the order, you would need to come back to Court and face sentencing for that breach offence.  In those circumstances, you could also be re-sentenced for the offences for which you were placed on the order originally. You would then face the very real possibility of being sent to prison.

58So, there are serious consequences attached to any breach. Do you understand that Mr Ngapare?

59NGAPARE: Yes.

60Do you also understand Mr Woods?

61WOODS: Yes.

62HIS HONOUR:  Do you also understand all the conditions of the proposed CCO Mr Ngapare?

63MR NGAPARE: Yes.

64HIS HONOUR: And similarly, do you understand the conditions of your order Mr Woods?

65MR WOODS: Yes.

66HIS HONOUR: Can I ask you individually, do you both consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions? Let me ask you first Mr Ngapare?

67MR NGAPARE: Yes.

68HIS HONOUR: And Mr Woods?

69MR WOODS: Yes.

70HIS HONOUR:  Thank you. Your verbal consents will be noted on the court record and are sufficient in circumstances such as this where you are appearing by way of a video link.