Director of Public Prosecutions v O'Reilly, Harika & Hamann
[2022] VCC 1392
•29 August 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00262, CR-20-00263
Indictment J12595794.1
CR-18-02615
Indictment C1812122.2
CR-19-00500, CR-19-00501
Indictment C1812122.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKE OREILLY PHILLIP ANTHONY HARIKA PETER JOHN HAMANN |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 29 August 2022 | |
CASE MAY BE CITED AS: | DPP v O’Reilly, Harika & Hamann | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1392 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Three offenders charged with aggravated home invasion – One offender pleaded guilty – two offenders convicted by jury verdict - causing injury intentionally – causing injury recklessly – theft – attempting to pervert the course of justice – extortion with threat to kill – possession of a drug of dependence
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Lowell (a pseudonym) v The Queen [2022] VSCA 134; DPP v Oksuz (2015) 47 VR 731; Wol v The Queen [2019] VSCA 268; Hogarth v The Queen 37 VR 658; Bugmy v The Queen (2013) 302 ALR 192
Sentence: J O’Reilly: 7 years and 1 month with a minimum of 4 years and 7 months. S6AAA 9 years and 8 months with a minimum of 6 years and 10 months.
P Harika: 9 years with a minimum of 6 years and 10 months
P Hamann: 9 years and 8 months with a minimum of 7 years and 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | C Duckett | Solicitor for the Office of Public Prosecutions |
| For the Accused Mr O’Reilly | D Cronin (plea) | Leanne Warren & Associates |
| For the Accused Mr Harika | Mr J Shaw | Valos Black & Associates |
| For the Accused Mr Hamann | Mr C Grant | Melinda Walker & Associates |
HIS HONOUR:
1Phillip Anthony Harika and Peter John Hamann, after a 15-day trial on Indictment C1812122.3 you were both found guilty by a jury of aggravated home invasion (maximum penalty 25 years), causing injury intentionally (maximum penalty 10 years), common law assault (maximum penalty 5 years), extortion with threat to kill (maximum penalty 15 years) and three charges of theft (maximum penalty 10 years). Mr Hamann you also pleaded guilty to a possession of drugs charge (maximum penalty 1 year) on Indictment J12534017.
2Jake O’Reilly, on Indictment C1812122.2, you pleaded guilty to aggravated home invasion, causing injury recklessly (maximum penalty 5 years) a rolled-up charge of theft and the related summary offence of contravening a Family Violence Safety notice (maximum penalty 2 years). These charges arose out of the same circumstances as the trial involving Mr Harika and Hamann. You have also pleaded guilty on Indictment J12595794.1 to one charge of attempting to pervert the court of justice (maximum penalty is 25 years); this offence was committed in relation to the charges arising from the aggravated home invasion incident.
3I sentence the three of you on the following facts in accordance with the Prosecution Plea Opening in your matter, Mr O’Reilly, and on the evidence led in the trial. There is no conflict between the Opening and the trial evidence.
4On 4 September 2018 at approximately 6.46pm you, Mr O’Reilly and you, Mr Harika had the following text message exchange:
O’Reilly: ‘Uncle Phillip’
Harika: ‘What’s up home boy???’
O’Reilly: ‘I’ll visit a bit later’
Harika: ‘What does the Craig burn house mean?’
5Between Saturday 22 September and Monday 24 September 2018, you, Mr O’Reilly communicated with Ms Krystal Varvatsoulis on Facebook messenger in relation to a sum of $600 you owed her.
6At 3.10pm on Monday, you messaged her asking, ‘Do you know anyone who will do a home invasion with me?’ She said ‘no’; you responded:
‘No cunt I know has the balls to come with me to Craigieburn and rob these coke dealers. I need one person to come with me. I am fucking desperate do you know anyone who you would want me to roll?’.
7You said that you hoped to ‘have the money to her that night’ but ‘It’s hard with no car’.
8You sent a further message to her stating:
‘Please believe me when I say I’m trying to get your money. I just found out from Jake that this cunt sold 88 bags of coke at $280 a bag on the weekend. That’s 25 grand. He’s over in Craigie burn I need to get there with one Bloke who is down to torture and do whatever to get the money of this cunt’.
9Ms Varvatsoulis asked you what your plans were, and you messaged:
‘Young dealer, not connected to anybody. Craigieburn. 2 blokes live there. I’ve been sussing it out for months.’
10At approximately 7.15pm, you, Mr Harika sent a text message to Mr O’Reilly which read, ‘are you coming down?’
11That evening you, Mr Harika were at home in Lalor with your partner Leah Doody. Sometime in the evening you, Mr Hamann arrived with your girlfriend, Courtney Matthews. You all used drugs and then Ms Doody fell asleep.
12Further text messages were exchanged between you, Mr O’Reilly and you, Mr Harika in which you, Mr O’Reilly sent Mr Harika your home address. The Prosecution case, which I accept, was that you and Mr Hamann picked Mr O’Reilly up sometime after 9.45pm and the three of you travelled to Craigieburn to commit the offences in this case.
13On 24 September 2018 in the evening, Kevin Porter[1] and Jane Healey[2] were at home at an address in Craigieburn. A friend of theirs also lived there but was not home. Mr Porter went to bed around midnight. At around 12.30am Mr Porter’s dog Villain started barking and then he heard banging noises, so he got up and went down to the laundry to investigate. Ms Healey retreated to the ensuite off the bedroom.
[1] A pseudonym
[2] A pseudonym
14Mr Porter heard glass breaking and started shouting. It was apparent that intruders were trying to enter his home. He went to the laundry to try and stop them. He held the door for some time but then the blade of a makeshift sword came through the door and three intruders entered, the three of you.
15You, Mr O’Reilly and you, Mr Harika wore balaclavas. Mr Porter described your balaclava, Mr Harika, as having duct tape attached. Mr Porter nominated you, Mr O’Reilly as the intruder wearing a makeshift balaclava and said you had blue eyes. According to Mr Porter you, Mr Hamann were not wearing a balaclava. You were all in possession of weapons: Mr O’Reilly you had the makeshift sword at that time with grey duct tape on the handle; you, Mr Harika had a hatchet; and you, Mr Hamann had a crowbar. Mr Porter in his evidence referred to you Mr Harika and you Mr Hamann as being older.
16After gaining entry to the property, the three of you and Mr Porter moved to a more central position in the house.
17Your group said to Mr Porter, ‘Where’s the money? Give us the money’. You also asked for his car keys and his phone. Mr Porter said he didn’t know what you were talking about. You, Mr O’Reilly hit Mr Porter with the machete to little effect other than a small cut to his arm; then you, Mr Hamann took the sword from Mr O’Reilly saying, ‘give it here, I’ll do it properly’. You struck Mr Porter hard with the sword causing a deep cut to his arm not far from his wrist. This is the basis of Charge 2 – causing injury intentionally relating to you, Mr Harika and you, Mr Hamann and Charge 2 – causing injury recklessly to which you Mr O’Reilly pleaded guilty. Mr Porter was bleeding profusely whilst you continued to make demands for money, possessions, cars and belongings.
18The three of you dragged Mr Porter into the loungeroom where you took a Play Station 4, a MacBook Pro, a Gucci tote bag containing his Louis Vuitton wallet with various personal and bank cards and $100 dollars cash. The three of you initially piled all the items on the couch but later loaded them into Mr Porter’s car.
19Your group then forced Mr Porter upstairs into the hallway.
20You went through the wardrobes while dragging Mr Porter first into the outer study, then into Harry Dock’s[3] room where you grabbed shoes, tracksuits and jumpers. You, Mr Hamann tried turning the light on with a weapon but gave up and used your hand. You had no bags, so you used bags from the house and packed them with stolen items. Frustrated by not finding valuables in the wardrobe you, Mr Hamann kicked Mr Porter in the face three or four times saying words to the effect of, ‘I’m not here to play’. This is the basis of Charge 6 - common law assault. Mr Hamann you then gave Mr O’Reilly the hatchet and said, ‘I am sick of this kid, ah, just cut off his toe’.
[3] A pseudonym
21Mr Porter was then pushed and shoved up to the second floor and into the main bedroom where Ms Healey was crouching nearby in the ensuite bathroom with the door open. You, Mr Hamann appeared frustrated and threatened to kneecap Mr Porter. Mr O’Reilly, you were still scouting through the house looking for valuables.
22From the main bedroom you took tracksuits, shoes, multiple gold and silver bracelets, a Rolex, a replica Rolex, some caps, an Xbox and Ms Healey’s handbag containing her wallet and banking cards. This is the basis of Charges 4 and 5 on the trial Indictment and part of Charge 3 on the plea indictment against you, Mr O’Reilly where the property taken has been rolled up into one charge.
23While you, Mr O’Reilly continued to search for valuables, you, Mr Harika and Mr Hamann told Mr Porter that you would take his dog Villain and you wanted $20,000 left out back by the gate if the dog was to be returned. You said that if the money was not left out, someone would come back and ‘put holes’ in Mr Porter. This is the basis of Charge 7 – extortion with a threat to kill. The particulars of this charge were amended during the trial to ‘threat to injure’, which is an alternative basis of liability in the offence section.
24Overall, your group were in the main bedroom for about fifteen minutes, and in the house for a total of approximately forty minutes. From the kitchen one of you grabbed a packet of Dorito chips. You then packed everything into Mr Porter’s black 2013 Chrysler sedan in the garage, along with Mr Porter’s various Milwaukee tools which you loaded into the car. There was also cash in the car. This is the basis of Charge 8 on the trial indictment and part of Charge 3 on the plea indictment.
25Mr Hamann you went on to say, ‘If you call the cops or I see the cops here or you list your car as stolen I will not come back but I will get someone to come back and finish the job for me’.
26At some stage during the incident you, Mr O’Reilly grabbed a tea towel and a glass of water for Mr Porter. In his statement, Mr Porter said this was before you left in his car. He also said you apologised about the injury to his arm.
27Mr Porter said that the older men, so that means you, Mr Harika and Mr Hamann were ‘in control of everything’.
Ms Healey’s evidence
28Ms Healey in her evidence said that she was sleeping at the time the three of you arrived at the house. She heard a noise and then heard the dog barking at the noise. Her evidence was that she woke up Mr Porter and told him that someone was trying to get in the house. When Mr Porter left the bedroom, she ran to the bathroom. She was in her dressing gown. She closed the door of the ensuite behind her and tried to hide in a corner of the bathroom. From there she was able to hear the three of you entering, and the struggle when Mr Porter tried to keep you out. She heard Mr Porter yelling in pain and said everyone was ‘kind of yelling’.
29Ms Healey said that your group was asking whether anyone else was home, and Mr Porter had said that she was up in the bathroom. Soon after that, you, Mr Hamann, entered the ensuite carrying the machete. You asked Ms Healey whether she had been with an older man before. You stayed in the bathroom for some time. Ms Healey was extremely frightened. During this period, she could see Mr Porter in the bedroom sitting on the bed. She heard your group leave. She heard you asking Mr Porter for the keys to his car and asking him to fill up the bags you had with stolen property. She only left the ensuite when she heard the car drive away, and Mr Porter told her that you had left.
30Mr Porter said in his evidence that once your group left, he went and checked on Ms Healey. They saw lights out the back of their residence, and they then left through the front door. They thought that your group had come back. Mr Porter said that they bumped into a friend and arrangements were made to take Ms Healey away, and then he and his friend returned to the property. By that time, police had arrived. There was also an ambulance present. Mr Porter was taken to the Northern Hospital, where the laceration to his arm and the damage to his tendons were treated by a plastic surgeon.
31At 3.00am the three of you and another person you had collected on the way, Sean Ware arrived at Achilles Street in Heidelberg West – the home of Ms Varvatsoulis. You, Mr O’Reilly paid the $600 you owed her. The group also had Mr Porter’s dog Villain with you at that time.
32At 6.43am, due to the noise you were creating, Ms Varvatsoulis sent a text to you, Mr O’Reilly saying, ‘Jake, please I’m working bro they were meant to be gone in 45 minutes’ and ‘I can’t deal with this’. You and the others did not leave. Eventually, Ms Varvatsoulis went downstairs and again asked you all to leave.
33The various tools were loaded into the stolen Chrysler. Mr Hamann then offered the dog Villain to Ms Varvatsoulis. She organised for the dog to be picked up by a friend shortly after.
34At some stage you, Mr Harika arrived back at your house in Lalor and asked Ms Doody if she wanted Hungry Jacks. She said she didn’t.
35At 8.36am, you, Mr O’Reilly tried to ring Ms Varvatsoulis twice, but she did not answer.
36At 8.48am you, Mr Hamann, in the passenger seat and you, Mr Harika, driving, were caught on CCTV in Mr Porter’s Chrysler at Hungry Jacks in Bundoora. You, Mr Harika can be seen holding a gold chain belonging to Mr Porter.
37At 9.15am, you, Mr O’Reilly were in the immediate vicinity of the Mount View Road, Lalor address and became aware police had attended at the address, arrested your co-offenders and located the stolen Chrysler.
38You phoned a taxi to collect you from 1 Willard Court in Lalor. You were picked up at 9.29am and driven to your home address at Olympic Court, Montmorency.
39Returning to the circumstances of the arrest in relation to you, Mr Hamann and you, Mr Harika: that morning, Ms Doody woke up to find Mr Hamann’s girlfriend still on the couch and she heard voices in her front yard. When she opened the front door, she saw a whole lot of tools and boxes sitting there and you, Mr Hamann handed her a watch, a black purse and a plastic bag with jewellery, all of which had been stolen in the home invasion. You told her to ‘put it away’. Ms Doody put the items into her handbag. You, Mr Hamann entered the house. Ms Doody noticed that you, Mr Harika had a hose out to wash Mr Porter’s car which was parked in the driveway. She didn’t want to know about any of this, so returned back into the house to go back to sleep.
40Soon after, the police arrived and arrested you Mr Harika and Sean Ware. During the arrest you, Mr Hamann ran out of the rear of the property and attempted to avoid arrest.
41You, Mr Harika were arrested at that time; you, Mr Hamann were arrested a few minutes later in a nearby street. When you were arrested Mr Hamann, you were in possession of a small amount of methylamphetamine. You pleaded guilty to this charge on a separate indictment.
42At 9.39am, Ms Vartvatsoulis texted you, Mr O’Reilly asking, ‘U after that key’ and said that she was ‘sorry’ and she ‘was busy’. You replied, ‘What key? Krystal don’t offer the dog to anyone delete the pics now’. She told you, ‘The bag had the Chrysler key in it’ and ‘sorry the dog is gone’. You sent a further message asking, ‘Where did it go? Oy its bad. Krystal, I need you to melt that quay right now.’
43Ms Varvatsoulis phoned you twice over the next hour.
44Approximately a week later, on 3 October 2018 at approximately 10.00am, police attended Olympic Court in Montmorency and arrested you, Mr O’Reilly. Your phone and your laptop were examined and found to contain various locations identified during the time of the offending and relevant chats/text messages in relation to the offending. Summary Charge 7 against you, Mr O’Reilly is established by your presence at Olympic Court, Montmorency in breach of a Family Violence Safety Notice that was in place relating to your mother. The notice had been served on 1 October 2018.
45You, Mr O’Reilly made a no comment interview on the same day and refused to provide a DNA sample or participate in an identification parade. Mr Hamann and Mr Harika had been interviewed soon after their earlier arrests. You, Mr Hamann were unfit to be interviewed and you, Mr Harika denied being involved and said you had never left home. You, Mr Harika did take police to Krystal Varvatsoulis’ place to help locate the dog Villain which police did subsequently find.
46The police investigation that followed assembled, what in my opinion, was a powerful circumstantial, forensic and identification case against the three of you.
Attempting to pervert the course of justice charge in relations to Mr O’Reilly
47Mr O’Reilly after your arrest on the 3 October 2018, you made numerous calls from custody to your mother, wife and sister and other unknown people, to contact an associate Jake Shaw, a friend of Mr Porter, and another person known as Bonks.
48In relation to Mr Shaw, on 9 October at 3.15pm, you spoke to your mother:
O’REILLY: I want Jake – I want Jake Shaw at our house. Can you make it happen, please? Can you can you remember this number or type it in?
Ms N OREILLY: And does – Krystal has to speak to him?
O’REILLY: No, you can even. Just say, “Jake, you have to come over to our house. You gotta go with Krystal somewhere.”
49In this phone conversation with your mother, you stressed the importance of getting in contact with Mr Shaw to get Mr Porter to retract his statement.
50On 11 October 2018, a further phone conversation occurred:
O’REILLY: Did she get on to anybody?
Ms N O’RELLY: She’s spoken to Jakey Shaw.
O’REILLY: Yeah.
Ms N O’RELLY: She said [Kevin]’s in trouble because he’s dobbed and said something about he might retract his statement.
O’REILLY: Yep.
Ms N O’RELLY: I don’t know whether that’s any benefit because the police are investigating it anyway.
O’REILLY: It doesn’t matter, that’s a huge benefit.
51You also spoke to your wife Krystal:
Ms K O’REILLY: I dunno, they’re – they’re only – they’re only got an issue with – with young [Kevin].
O’REILLY: Yeah, O.K. And so – yeah, O.K so he’s gunna be trying to – like, hes gunna be trying to - - -
Ms K O’REILLY: Yep.
O’REILLY: - - - retract his statement.
Ms K O’REILLY: Yep, and he’s no longer cooperating with police a hundred per cent.
O’REILLY: All right.
52On 12 October at 2.21pm, you discuss with your Krystal O’Reilly that she would be able to provide alibi evidence for you and be able to confirm that you were home in bed until at least 5.30am on the night of the offence which was false.
53On 12 October, the following phone conversation occurred:
O’REILLY: Did you get on to Jake?
Ms K O’REILLY: Yeah, I did.
54Later in that call you told Krystal:
O’REILLY: Cause I know that I’m not gunna get in trouble like - - -
Ms K O’REILLY: Well, you don’t know that and maybe all the stuff that – like, maybe its that – that case now where they’re just making you fuckin’ sit and you’re gunna end up making yourself in trouble with all these calls and errands.
O’REILLY: How? What, do you think I’ve incriminated myself?
55During your conversation you conveyed your confidence that you would not be found responsible for the offending because of Krystal being able to account for your whereabouts at the time of the offence.
56These Arunta calls from the prison system form the basis of Charge 1 on Indictment J12505794.1 – attempting to pervert the course of justice.
Victim impact
57No victim impact statements were tendered by the prosecution, but it was clear from the evidence in the trial that the offending in this case was a traumatic experience for the victims.
58Mr Porter gave evidence that the relationship between he and Ms Healey ended after the incident which Mr Porter attributed to the incident.
59Mr Porter was punched, kicked in the face multiple times and threatened. He sustained a significant injury to his right arm. He gave evidence that he was in rehabilitation for about six months and that four years later still cannot feel his index thumb. He also said, ‘[my] skin is dry as shit but I don’t have any range of movement upwards because all the scar tissue combined with, yeah, the tendon damage…’
60I accept as matter of common sense that Ms Healey would have taken some time to recover psychologically from the incident; Mr Porter’s evidence that their relationship broke down is consistent with such a finding.
Gravity
61Aggravated home invasion is a Category 1 offence meaning that pursuant to s 10AC of the Sentencing Act, I must impose a term of imprisonment and fix a minimum non-parole period of 3 years or more, in the absence of stipulated statutory criteria being established. No submissions were made that those criteria have been established in respect of any of you. Clearly, given the gravity of this aggravated home invasion, the only sentence possible is a term of imprisonment involving a head sentence and non-parole period beyond the three years required by the legislation.
62This was obviously extremely serious offending. The offence of aggravated home invasion carries a maximum penalty of 25 years. This offence was introduced in December 2016. Before that, conduct such as this would have been charged as aggravated burglary which also carries a maximum penalty of 25 years. Home invasions were the category of aggravated burglaries which attracted the longest sentences.
63In Hogarth v The Queen 37 VR 658, the Court of Appeal in dealing with home invasion style aggravated burglaries, described home invasion as a 'particularly nasty form of criminal conduct' and went on to say this at paragraph 1:
'Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders – acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householder(s), irrespective of what may occur after entry.'
64These comments are obviously pertinent to the offences in this case; although here, the motive was the acquisition of property.
65In the case of Wol v The Queen [2019] VSCA 268 involving an offence of aggravated home invasion, the Court of Appeal at paragraph 79 said:
‘…those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.’
66Your aggravated home invasion in this case included the following serious features: it was planned; the venue of the offending was a private residence; you intended to assault the occupants of the house and steal from them; all three of you had serious weapons; two of you were wearing disguises throughout the incident; the entry was late at night; the occupants were asleep; and you entered by smashing a window and forcing your way in, overpowering Mr Porter’s efforts to repel your entry.
67An aggravated home invasion offence is complete at the time of entry, and it is often difficult to draw a line between the entry and what happens inside the premises. But the behaviour inside the premises reflects the seriousness of the intent at entry. The intent in this case was to steal from Mr Porter a substantial amount of property using violence and violence with weapons. All of you had both an intent to steal and assault. Although the prosecution removed intent to steal from the particulars of the trial indictment that was for simplicity and there is no doubt that you Mr Harika and you Mr Hamann entered with that intent as well as an intent to assault. That was how the case was run before the jury.
68In this case the three of you stayed inside the residence for forty minutes, a long time for an offence such as this where often the incursion is relatively brief. In that time, you herded Mr Porter around the house ransacking the place looking for property and he was seriously assaulted with a weapon and then later kicked when he was on the ground. This latter conduct is the basis of the common law assault against you, Mr Harika and you, Mr Hamann. It is a serious example of that offence. Ms Healey had to cower in the bathroom terrified witnessing what was going on.
69In my opinion you, Mr Hamann took a lead role once inside the residence and escalated the aggression and violence towards Mr Porter. You, Mr Harika were Mr Hamann’s willing offsider in the escalation. I accept that you, Mr O’Reilly played something of a lesser role in the aggression inside the unit and sought to pull back to some extent from the egregious violence that was taking place. The mitigatory effect of this however, is limited in circumstances where the whole episode was your idea Mr O’Reilly, and you went there with a weapon and knowing the others also had weapons. You expected violence to occur.
70Mr Hamann you were the only offender who interacted directly with Ms Healey. Your reference to whether she had ever been with an older man must have been very unsettling for her.
71The intentional injury charge is a serious example of that offence. In my opinion the injury suffered is at the upper end of what can be described as an injury rather than a serious injury. Mr Porter still suffers from the consequences. The machete was wielded by you, Mr Hamann using significant force with a clear intent to do real harm. Mr O’Reilly you face the lesser charge of recklessly causing injury in relation this incident reflecting a less serious intent on your behalf which is consistent with the fact that the blow you struck did not inflict a significant injury.
72The theft was serious also, taking with you a large amount of property including Mr Porter’s car. The property stolen went well beyond what was needed to pay any debt to Ms Varvatsoulis.
73The extortion charge against you, Mr Harika and you, Mr Hamann related to the return of Mr Porter’s dog coupled with a threat to injure and a demand for $20,000. The maximum penalty is 15 years. As with the intentional injury offence and the common law assault charge, this only relates to you, Mr Harika and you, Mr Hamann. In the circumstances, Mr Porter would have had every reason to believe that his ordeal was not over and that the threat would hang over him unless he complied. I suspect he was more resilient than that, but you were not to know that, and your intention was to put him in fear. This was also a serious offence in these circumstances, and it highlights the intention you Mr Hamann and Mr Harika had to maximise the gain from your criminality.
74For this overall offending general deterrence, denunciation and just punishment are all principles which must be given substantial weight.
Current sentencing practices for aggravated home invasion
75During the plea the recent comparative case of Lowell (a pseudonym) v The Queen [2022] VSCA 134 was the subject of discussion. There are some factual similarities between that case and this incident. In that case, the Court of Appeal refused the offender’s appeal against an overall sentence of 6 years and 8 months with a non-parole period of 4 years and 8 months for aggravated home invasion, two charges of intentionally causing injury and three charges of theft. The offender had pleaded guilty. He had a substantial criminal history. The sentence for the aggravated home invasion was 4 years and 6 months. The offender received a ‘significant and meaningful’ discount for cooperating with authorities. The sentences imposed were described as extremely moderate.
76I take into account current sentencing practices are one of the many matters to be considered in the instinctive synthesis of sentencing. They are a guide but not a controlling factor in deciding the sentences to be imposed.
Attempting to pervert the court of justice charge in relation to Mr O’Reilly
77In relation to this offence, there is a suggestion in the calls that some contact was made with Mr Porter, but it is not clear. It seems clear enough that Jake Shaw was contacted. I don’t have any evidence that Mr Porter’s attitude to giving evidence was ever genuinely compromised by anything resulting from the calls you made. I accept the calls took place in the immediate aftermath of the offending. You were in prison but still in the grip of a methamphetamine problem, but that is no excuse. Of course, making such calls on a prison phone system where all calls are recorded, and a message plays each time reminding you of this, is hardly a well-executed effort to interfere with a witness. You were destined to be detected and you were. That said, it is a constant source of surprise to those involved in the criminal law how often incriminating calls are made on the prison Arunta phone system.
78In assessing the gravity of the attempt to pervert the course of justice charge, an offence which has a maximum penalty of 25 years imprisonment, I have had regard to the comments of Justice Kyrou in the case of the Director of Public Prosecutions v Oksuz (2015) 47 VR 731 (‘Oksuz’) where his Honour described a sentence of 6 months as derisory for an attempt to pervert the course of justice offence involving arrangements to interfere with a witness; his Honour said at paragraphs 94 and 100:
The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence — or truthful evidence — in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown’s ability to secure a conviction against an accused person and thus bring him or her to justice.
…
As the Crown pointed out, individual sentences of between two and four years have regularly been imposed for the offence of attempting to pervert the course of justice.
79The sentence of the Court of Appeal imposed in that case was four years. Those comments are relevant to this offending. In my view whilst this is a less serious case than Oksuz it is nonetheless serious criminal behaviour for the reasons articulated in that case and requires a significant term of imprisonment. When you made those phone calls you were seeking to avoid criminal responsibility for this very serious offending. General deterrence is important for such offending.
Parity
80The principle of parity requires that like offences be treated alike, but that differences between offenders may justify different outcomes. In this case Mr O’Reilly, you initiated this offending. It was your idea. You needed money to pay your debt to Krystal Varvatsoulis and to feed your drug addiction. You recruited Mr Harika and from there Mr Hamann became involved. You intended to extract the money you needed using weapons and violence. This is clear from the text messages to Krystal Varvatsoulis in the lead up and by your behaviour during the time you were inside the house.
81As I have said, I accept there is evidence that inside the house you thought your co-offenders were going too far and needed to pull back. Mr Porter said as much in his evidence. Mr Cronin detailed instances of this in his submissions such as getting water and a tea towel for Mr Porter.
82Mr Harika, although you were not quite as aggressive as Mr Hamann you have been convicted of the same offences as Mr Hamann. You were complicit with him.
83Mr O’Reilly, you pleaded guilty. Apart from the aggravated home invasion the negotiated charges you face are less serious and less numerous compared to the offences that Mr Harika and Mr Hamann were convicted of by the jury. Your plea is a substantial mitigating factor not available to you, Mr Hamann and you, Mr Harika. The two of you by running a trial have foregone receiving the considerable mitigatory benefits afforded by a plea of guilty.
84Mr Hamann and Mr Harika, you both have significant criminal records whereas you, Mr O’Reilly had no prior convictions at the time of these offences. You, Mr O’Reilly are younger than your co-offenders and have not manifested the sort of entrenched criminality indicated by their substantial prior convictions. These are significant matters to be considered in assessing your moral culpability and prospects of rehabilitation and in deciding what weight is to be given to specific deterrence and community protection.
85In all the circumstances the sentences to be imposed on you, Mr O’Reilly for the like offences must be significantly lower than those to be imposed on you, Mr Hamann and you, Mr Harika.
86As between the two of you, Mr Hamann and Mr Harika, Mr Hamann’s older prior convictions are more serious but after making some allowance for his disadvantaged background which I will further discuss in explaining his criminal record, the influence on sentencing in this case is marginal.
87Mr Hamann played the most aggressive role inside the house, as submitted by Mr Shaw for Mr Harika. I do not see any real distinction to be drawn relating to the circumstances of the entry into the premises or the intent at entry. You, Mr Hamann though, were the principal offender in the intentionally cause injury offence and the common law assault. You were the person who directly caused the significant injury with the machete, and you were the one who delivered the kicks when Mr Porter was on the ground. Mr Harika, at least you showed some decency later in assisting the police to recover the dog whilst at the same time as maintaining you were not involved. The sentences I impose will reflect that you Mr Hamann were the principal offender for the intentional injury and common law assault charges but in my opinion substantial disparity in the overall sentence is not justified.
Covid-19
88For all three of you the burden of the period you have spent on remand has been increased by restrictions in the prison system in response to the pandemic. You were all in custody at the height of those restrictions. This meant visits were suspended and access to programs was restricted. Such restrictions are likely to continue for some time. I have taken that into account as a matter in mitigation.
JAKE O’REILLY
89Mr O’Reilly you were born in March 1989 and were aged 29 at the time of the offences. You were living on and off with your family and wife and Olympic Court, Montmorency.
Guilty plea
90Your matter resolved after an offer was made to plead guilty back on 12 August 2021. The offer was accepted by the prosecution on 16 August 2021. You were arraigned before me on 11 November 2021 in relation to the charges on the indictment. You pleaded guilty to the attempt to pervert the course of justice charge on the date of the plea hearing some time ago now, but I accept that it was never really contemplated that there would be a trial in respect of that charge.
91You are entitled to a significant benefit for the utilitarian value of your plea which is heightened in the current circumstances where this court faces a very significant backlog of trials because of the pandemic. Had you been involved in the trial it would have taken longer and given the attrition rate from Covid-19 at the time of the trial and which we experienced, the risk of the jury being discharged because of Covid illnesses would have been much higher.
92The increased utilitarian value of a plea of guilty in the current circumstances was recognised by the Court of Appeal in the case of Worboyes v The Queen [2021] VSCA 169 and other cases and I apply those principles. The sentencing discount must be palpable.
93I accept your plea of guilty demonstrates a willingness to facilitate the course of justice. I accept the guilty plea indicates some remorse although in my opinion there is a component of pragmatism in your decision to plead reflecting the strength of the case against you. Still, you pleaded guilty in the end and that does indicate insight. There are other indications of remorse and insight in the material tendered on your behalf which I will deal with later in these remarks. For the reasons I have indicated you must receive a significant discount in sentencing for your guilty plea.
Personal circumstances
94Your personal history was outlined in the psychological report of Ms Carla Lechner dated 27 June 2022 and in the defence submissions.
95You are now 33 years old. You were born and raised in the north-eastern suburbs of Melbourne to parents Peter, now aged 58 and Natalie, aged 56. You are the oldest of three children.
96Your father is a boilermaker. You say he abused alcohol during your childhood and was violent and aggressive, but that his behaviour and your relationship with him transformed after he ceased drinking. You have a good relationship with your parents, and you intend to reside with them and your children: Eva aged 8, Grace aged 6, and Oscar aged 4 at their home in Montmorency upon your release. Obviously though, there must have been some problems in the relationship for your mother to take out a Family Violence Safety Notice.
97You met the mother of your children Krystal when you were around 19 or 20 years of age, and she was 24. Apparently, Krystal re-partnered three months into your incarceration for these matters. I am told she introduced you to the world and social network of drugs and your relationship quickly deteriorated in the context of mutual drug use. Your children were removed and have ended up in the full-time care of your parents. Krystal maintains intermittent contact with them.
98You attended primary school in Preston until year 4 and completed your primary schooling in Montmorency. Your academic performance was average but you had a good circle of friends. You had no social or behavioural problems at school and completed secondary school at Marcellin College.
99You were an exceptional baseball player and you apparently played for Victoria from age 14 to 18. After school you attended a Major League Baseball Academy camp which gave you some chance of being recruited to play baseball on a scholarship in the United States. You were not selected, and you were apparently very upset by this, but continued playing baseball until you were 26.
100You worked as a boilermaker with your father and also as a brickie’s labourer but apparently you didn’t enjoy either job. You subsequently completed a plumbing apprenticeship and worked in that industry until 2013 before returning to work with your father at Jaydee Steel Pty Ltd as a boilermaker until your arrest. You again returned to this job during your period of bail. You have completed three years of your boilermaker apprenticeship. I am told and I accept your employer is prepared to take you back full-time when you are released from custody.
101After being granted bail, you were ultimately breached for possessing methamphetamine and you were then remanded in custody again where you have remained since.
102You told Ms Lechner that you began using cannabis at the age of 19 after you were not chosen for baseball scholarship. At the age 20 you started using methamphetamine with your partner, Krystal. Your drug use seems to have continued unabated until your involvement in these offences. You used GHB as well in significant quantities before you were remanded in custody for the second time in 2021.
103You were frank in your discussion of the offending with Ms Lechner, and you showed insight into the impact of such serious offending on the victims, particularly Ms Healey.
104In prison you have been on buprenorphine injections once a month.
Character references
105There were character letters tendered on the plea from the managing director of Jaydee Steel Pty Ltd Paul Zampichelli, family friend Peter Geary, your mother Natalie O’Reilly and your former baseball coach Peter Collis.
106Mr Zampichelli vouches for the work you did for him. He describes you as competent and he offers you full-time employment when you are released.
107Your mother says your family recognise that addiction has been a significant problem in your life but they remain supportive of you. She says you will be welcomed back to a loving home when you are released.
108Mr Geary and Mr Collis describe you as a caring and loving father and speak of your gifted athletic ability. They are committed to supporting you when you return to the community.
Time in custody
109Since you have been on remand you have completed several courses including ‘Keeping your cool’, ‘Ice and Me’, ‘Healthy Coping’ and ‘Building better relationships’. Certificates of completion were tendered as exhibits on the plea along with a letter from Brian Watts confirming you have undertaken the role of peer listener at Ravenhall Correctional Centre. Mr Watts describes you as a valued mentor in the peer group, which involves orienting new prisoners to the location and demonstrating positive role model behaviour.
Delay
110This offending occurred in 2018. It has taken almost four years to finalise the case. Delays in the court system arising from the pandemic account for much of this delay. You have had to wait for a very long time to find out your fate in respect of these matters and I take into account the anxiety and uncertainty caused by that delay as increasing the difficulty of the period you have spent on remand. The final resolution of your matter had to wait until the end of the trial of Mr Hamann and Mr Harika.
Prospects of rehabilitation
111Turning then to your prospects of rehabilitation: you have strong family support, a good work history and prospects of employment once you are released. You have taken some positive steps in custody in more recent times. However, the fact that you reoffended when released on bail is a cause for caution in assessing your prospects of rehabilitation.
112I accept your offending was a consequence of your drug use. Ms Duckett, the prosecutor conceded the Arunta calls in which your sister continued to ask about your cravings for methamphetamine was reflective of how you came to embark on what she termed a ‘rollercoaster’ of offending which she submitted was unusual given your lack of criminal history.
113It seems to me that if you can stay away from drugs, your prospects of rehabilitation are reasonably good. You are now over 30 years old and have demonstrated as an adult you can live a productive life uninvolved in serious criminal activity. You will be able to live with your parents where your three young children are residing, which should operate as an incentive for you to stay abstinent from drugs.
114That said, you have an entrenched drug problem over a significant period and you engaged in very serious offending that was your idea for which your moral culpability is significant. Your rehabilitation will not be easy and a relapse into drug use and further offending remains an obvious risk.
115The non-parole period is the minimum period of imprisonment that justice requires be served in the case. In fixing a non-parole period, punishment is mitigated in favour of rehabilitation. In your case, I have had regard to the absence of any criminal history at the time of these offences, your comparatively positive prospects of rehabilitation and the support you have in the community. I have allowed for a reasonably extensive period of supervision on parole in your case.
116The sentence I impose must be just and proportionate to the total criminality of your offending. Charges 1, 2 and 3 all arise from the same episode and there is an overlap in criminality between those offences. The attempt to pervert the course of justice is a separate but related offence. To comply with the principle of totality I have moderated the orders for cumulation between the charges.
117You were remanded into custody for 20 days in relation to the offence you committed when released for these matters. That matter resolved by way of a fine and I am required to take into account the 20 days you served as ‘dead time’ or Renzella time.
Sentence
118Mr O’Reilly you are sentenced as follows:
Charge Charge Description Sentence Cumulation C1812122.2 1 Aggravated Home Invasion 5 years and 4 months 2 Causing Injury Recklessly 15 months 4 months 3 Theft 18 months 4 months Total effective sentence on Indictment C1812122.2 is 6 years 7 Related summary offence – Contravene Family Violence Safety Notice Convicted and fined $200 J125957954.1 1 Attempt to pervert the course of justice 2 years and 2 months 13 months TES: 7 years and 1 month
NPP: 4 years and 7 months
PSD: 1203 days
S6AAA: 9 years and 8 months with a NPP of 6 years and 10 months119On the plea hearing I granted the disposal order sought.
PHILLIP HARIKA
120Phillip Anthony Harika, you were born in May 1977 and were 41 years of age at the time of the offending. You were living at Mount View Road, Lalor with your partner Leah Doody.
Criminal history
121Mr Shaw submitted that your criminal history is comprised mainly of lower-level offences recently, and that you do not have a substantial history for violence in the recent past. Ms Duckett, the prosecutor, pointed out several significant prior convictions in your history.
122The thrust of Mr Shaw’s submissions was that you have a less significant criminal history compared to Mr Hamann, which is consistent with what he submitted was your lesser role in the offending. I have accepted that submission to some extent.
123Your criminal history contains prior convictions dating back to 1996. Since then, you have appeared consistently before the courts for a wide array of offences including dishonesty offences, violent offences, serious driving offences and drug offences. You have been ordered to perform community correction orders which you have contravened. In 2000 you appeared before the County Court for intentionally causing serious injury and received a sentence of 12 months. In 2001 you were dealt with in the County Court for armed robbery and received a sentence of 3 years with a minimum of 2 years. You received another sentence of 3 years with a minimum of 2 years in 2010 for dangerous driving causing death. Whilst the gravity of your offending has declined in recent years you have still offended consistently and the notion that you have left behind violent offending is dispelled by your participation in this incident. You have a record that indicates you remain unwilling to abide by the laws of the community.
124You are not to be punished again for your past offences, but they have substantial relevance to my assessment of your moral culpability and your prospects of rehabilitation and the weight to be given to specific deterrence and community protection.
Personal circumstances
125You were born in Melbourne on 30 May 1977. You are now 45 years old.
126You are the second oldest of four children. Your father, Faoud, was born in Lebanon. He owned a panel beating shop. Your mother, Theresa, was born in Australia. She worked as a waitress when you were growing up in the northern suburbs of Melbourne.
127Your mother now has serious health problems. She suffers from Multiple Sclerosis and Osteoporosis. One of your sisters, Rochelle, suffers also from Multiple Sclerosis, and another sister, Nicole, suffers from Crohn’s disease. No doubt, the health of your family members will increase the burden of your imprisonment.
128You have had several long-term relationships over your adult life. At the time of this offending, you were living with Leah Doody. She was a witness for the prosecution at the trial. That relationship has now ended and did so soon after this offending. You have no current relationship.
129You have one child who is now 18 years old. You have had intermittent involvement in his life. You currently have regular phone contact with him.
130You continue to have the support of your family.
131Educationally, you completed Year 12 at Thornbury High School and then started a spray-painting apprenticeship in 1995, which you completed. You then worked in various spray-painting businesses, but you have not worked since a motor vehicle accident in 2008.
132In that collision you suffered head and back injuries and an eye injury. This collision was the basis of the dangerous driving causing death charge I referred to earlier. I am told you suffered a further head injury in another motor vehicle accident in 2018. I am told you currently suffer from seizures.
133You have a long history of abusing drugs. You started using cannabis at the age of 17 through until 2002. You started using heroin when you were 20 years old, and you were still using once a month when you were remanded in custody for these offences. You have also used methylamphetamine since 2012. At the time of these offences and your remand in custody, you were using methylamphetamine daily.
134I am told that much of your criminal history is related to the use of drugs and that you have been drug-free since you were remanded in custody on 25 September 2018.
135In custody you are prescribed the following medications:
·Methadone, 60 milligrams daily;
·Levetiracetam, an antiseizure medication;
·Duloxetine for nerve pain; and
·Medication for high cholesterol and high blood pressure.
136A psychological report from Ms Laura Fleming, forensic psychologist, was tendered and I have had regard to the contents of that report dated 1 July 2022. Ms Fleming says in the report that at the time of her assessment you met the diagnostic criteria for:
·Stimulant Use Disorder and Opioid Use Disorder dating back to the time of the offending;
·Adjustment Disorder with depressed mood;
·Post-Traumatic Stress Disorder; and
·Mild Neurocognitive Disorder.
137The report says that continued imprisonment will weigh more heavily on you than a person without your psychological problems. Accordingly, I make allowance for some increased burden of imprisonment by reason of those conditions.
138I have also indicated I have taken into account your concern for the health of your mother and your sisters as increasing the burden of your imprisonment.
Delay
139These offences were committed in 2018 and your trial did not conclude until May of this year. Your trial was delayed extensively due to the pandemic. Several trial dates were adjourned because of Covid-19 related issues. Delay is a mitigating factor in this case. I take into account the anxiety and uncertainty occasioned by that delay in circumstances where you have spent the entirety of that time in custody.
Prospects of rehabilitation
140Mr Shaw referred to the fact that whilst you have been in prison you have become religious, and this has become a genuine focus for you which has given you an insight into your life of criminal activity. I take that into account. He submitted that this can only be a motivating and protective factor and a positive indicator for your rehabilitation.
141This may be so but having regard to the gravity of this offending and your sustained and serious criminal history in my opinion your prospects of rehabilitation are poor.
Sentencing principles
142There is an overlap in criminality between the charges in this case. In punishing you for the aggravated home invasion I have had regard to your intent at the time you entered which is reflected by the conduct inside the premises. Considerable concurrency between the offences is therefore justified by the need to avoid double punishment and also by an application of the totality principle, which provides the overall sentence must be just and proportionate to the offending. In your case Mr Harika, the need to avoid a crushing sentence is also relevant to the periods to be served cumulatively.
143Mr Harika your moral culpability for these offences is substantial. General deterrence, specific deterrence, denunciation, just punishment and community protection all have a significant role to play in sentencing in these circumstances.
144Of course, there is always hope for rehabilitation and I will reflect the need for rehabilitation in the non-parole period but the weight it can be given is limited by the gravity of the offending and by my assessment of your prospects as poor.
Sentence
145Mr Harika you are sentenced as follows:
| Charge | Charge Description | Sentence | Cumulation |
| Indictment C1812122.3 | |||
| 1 | Aggravated Home Invasion | 7 years and 4 months | |
| 2 | Causing Injury Intentionally | 2 years and 6 months | 6 months |
| 4 | Theft | 12 months | 2 months |
| 5 | Theft | 12 months | 2 months |
| 6 | Common Assault | 12 months | 2 months |
| 7 | Extortion with Threat to Kill | 18 months | 6 months |
| 8 | Theft | 18 months | 2 months |
| TES: 9 years NPP: 6 years and 10 months PSD: 1434 days | |||
PETER JOHN HAMANN
146Peter John Hamann, you were born in September 1972 and were aged 46 at the time of the offending. You turn 50 years of age next week. You were living at Maitland Close, Thomastown at the time of the offences.
Criminal History
147Mr Hamann, your criminal history as an adult commenced in 1990 at the Preston Magistrates’ Court. You received a period of three months at a Youth Training Centre for theft, unlawful assault and other offences on that occasion.
148In August 1990, you were dealt with at the County Court for armed robbery, theft and other offences, including attempted armed robbery. On that occasion, there were two charges of armed robbery and one of attempted armed robbery. You received a community-based order. Your offending continued consistently through the 1990s.
149In July 1991, you were convicted of armed robbery, burglary and other offences, and received a three-year Good Behaviour Bond. Then, on 9 December 1994, you were again at the County Court for armed robbery, and you received a sentence of two years’ imprisonment with a minimum of 12 months.
150You have prior convictions for trafficking drugs, for which you received a sentence of imprisonment in 2000.
151In July 2001, you again appeared at the County Court for a number of charges of armed robbery and attempted armed robbery and received a total effective sentence of 11 years with a minimum of 9 years. You appealed that sentence, and it was reduced by the Supreme Court to a sentence of 10 years with a non-parole period of 8 years.
152Your prior convictions have declined in seriousness and consistency over the last decade, but the offending here represents a return to very serious criminality on your part. You also have a criminal history in Queensland and in New South Wales, but nothing to compare with your Victorian criminal history.
153Your criminal history indicates many years of serious offending. You have seven prior convictions for armed robbery and other prior convictions for attempted armed robbery and other serious offences. At the age of almost 50, you are now to be sentenced for this extremely serious offence of aggravated home invasion.
154Of course, you are not to be punished again for your prior convictions. However, your criminal history is relevant to your moral culpability, specific deterrence, the assessment of your prospects of rehabilitation and community protection.
Personal circumstances
155Your personal circumstances Mr Hamann are set out in the psychological report of Ms Laura Fleming and in the defence submissions. You were born in Echuca. You are an indigenous man. At the age of 2 you were placed in Allambie, a children’s home. You have two biological brothers raised by your biological parents.
156You were adopted and raised in Craigieburn. Your adoptive parents fought and abused alcohol. They had three biological children older than you. Your adoptive mother died from a heart attack when you were aged 5. Apparently, your adoptive father blamed you. He worked at a brick kiln but later ceased work after a workplace accident.
157Your adoptive siblings worked in Aboriginal health, and you describe them as supportive of you.
158You attended Craigieburn Post Primary School where you say you excelled academically and made friends easily.
159At age 12 you moved to Lang Lang with your father and lived in unenviable circumstances, for a time in a bus. It was around this time a neighbour disclosed to you your adoptive status. This was a traumatic experience for you. Your behaviour at school deteriorated and thereafter you engaged in bullying and disruptive behaviour, ultimately leading to your expulsion from school in Year 8.
160At 14, you left home and lived at friends’ houses and also with your adoptive brother.
161At 21 you contacted your biological family and discovered your mother had passed away. Your maternal grandmother had died some days prior to your visit.
162You have a 30-year-old son named Josh with a woman you met in a rehabilitation centre. She passed away from a drug overdose and Josh was raised by your niece. You saw Josh briefly prior to your remand but you have not played a parenting role in his life. You have not maintained contact with your family since going into custody.
163You have a very limited work history. At one stage you worked for a month as a material cutter in the shoe industry. You otherwise have relied on your adoptive father, unemployment benefits and more recently on the disability support pension.
164You have had three significant relationships in your life, the first of which ended when you were 21. Your relationship with your second partner Tracy ended after an extended period in custody. Your most recent relationship deteriorated because of your drug use. You and your most recent partner apparently were involved in delivering the Marumali program which was run by her mother which deals with the Stolen Generations and healing.
165You have had a long-term drug problem. You have overdosed numerous times during your adult life, most recently in 2016. You reported you have self-harmed in custody and that back in 1994 you attempted suicide by hanging. You describe experiencing psychotic symptoms associated with substance use.
166You were introduced to cannabis by friends at the age of 12 and have been a daily user since. In your adolescence you reportedly misused prescription medications including benzodiazepines. At age 15, you began using amphetamines and later, methylamphetamine. You were using 1.5 grams each week at the time of your arrest. You began using heroin at the age of 17 but you have been abstinent from that drug for many years. You reportedly stopped drinking alcohol 25 years ago. You have been through opiate replacement programs and are currently prescribed Suboxone. In the past you have attended Odyssey House and Galliamble, which is an Aboriginal Rehabilitation Centre in St Kilda. You are hopeful of participating in the Dardi Munwurro Aboriginal rehabilitation program when your released from prison.
167
Ms Fleming describes you as a person who experienced displacement from your family and culture of origin. She deals with the circumstances of your early developmental period namely at Allambie and then with your adoptive family.
She says your low positive parenting interaction is associated with psychological maladjustment, substance abuse and other psychological deficits. These problems are exacerbated by alcohol and drug use. She also says you have been institutionalised given the percentage of your life you have spent in detention starting from a young age.
168Mr Grant submitted that your upbringing was deprived and submitted that the principles deriving from the High Court case of Bugmy v The Queen (2013) 302 ALR 192 have application to moderate the assessment of your moral culpability. He also submitted that your drug use from an early age operated to reduce your moral culpability. In my opinion your drug problems are related to your difficult childhood and adolescent years.
169I accept that the circumstances of your childhood and adolescence rendered you vulnerable from an early age to substance abuse and related criminality, and these factors have continued to impede your capacity to rehabilitate.
170I accept that your moral culpability is reduced because of the circumstances of your upbringing, which also explain to an extent your lengthy criminal history and failure to rehabilitate.
171However, you Mr Hamann took a lead role in this serious offending. You acted in a merciless way towards Mr Porter and escalated the violence in what was already an inherently violent event. Notwithstanding the moderation in moral culpability arising from your upbringing, your moral culpability for this offending remains substantial given these matters.
172Moreover, these same factors, related as they are to your lengthy criminal history, bring into focus the need to protect the community from your significant offending and are a factor in the assessment of your prospects of rehabilitation.
173With respect to your prospects of rehabilitation, in light of the objective gravity of this offending, the role you played in it, and your very substantial criminal history I assess your prospects as poor.
174In relation to orders for cumulation I have applied to the totality principle in the same way as I have for Mr Harika, and I have sought to avoid a crushing sentence in your case.
175Considerations of general deterrence, specific deterrence, denunciation, just punishment and community protection all have a significant role to play sentencing in these circumstances.
176The need to facilitate your rehabilitation will be reflected in the non-parole period but the weight it can be given is limited by the gravity of the offending and my assessment of your prospects as poor.
Sentence
177Mr Hamann you are sentenced as follows:
| Charge | Charge description | Sentence | Cumulation |
| Indictment C1812122.3 | |||
| 1 | Aggravated Home Invasion | 7 years 4 months | |
| 2 | Causing Injury Intentionally | 3 years | 12 months |
| 4 | Theft | 12 months | 2 months |
| 5 | Theft | 12 months | 2 months |
| 6 | Common Assault | 15 months | 4 months |
| 7 | Extortion with Threat to Kill | 18 months | 6 months |
| 8 | Theft | 18 months | 2 months |
| Total effective sentence on Indictment C1812122.3 is 9 years and 8 months | |||
| Indictment J12534017 | |||
| 1 | Possession of a drug of dependence | Convicted and fined $100 | |
| TES: 9 years and 8 months NPP: 7 years and 3 months PSD: 1346 days | |||
178I granted the disposal orders on the last occasion.
179Those are the orders that I make. I adjourn this matter to 2.15pm.
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