Director of Public Prosecutions v Paeara

[2020] VCC 1889

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01118

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEO PAEARA

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2020
DATE OF SENTENCE:	27 November 2020
CASE MAY BE CITED AS:	DPP v Paeara
MEDIUM NEUTRAL CITATION:	[2020] VCC 1889

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Thackaberry	Office of Public Prosecutions
For the Accused	Mr M. McGrath

HIS HONOUR: 

1I will tell you, Mr Paeara, what your sentence is now as a courtesy to you so you do not have to wait to hear all of my reasons.  I am going to sentence you to a total of two years Youth Justice detention and declare 165 days.  Is that the correct figure?

2MR McGRATH:  Yes, it is.  Yes, that's correct.

3HIS HONOUR:  I have told you that so you do not have to wait, Mr Paeara, so I would ask you to listen courteously to my reasons for that sentence, which will take about 15 minutes.

4Leo Paeara, you are to be sentenced for one charge of home invasion under s.77A of the Crimes Act, one charge of theft, and one charge obtaining property by deception. Applicable maximum sentences are 25 years' imprisonment for home invasion and 10 years' imprisonment for theft and obtaining by deception. You are also to be sentenced for the summary offences of committing an indictable offence on bail and breaching a condition of bail. Both attract the maximum sentence of three months' imprisonment. Home invasion is a category 2 offence under the provisions of the Sentencing Act s.5(2H) and thereby requires a custodial sentence until certain exceptions are made out. I shall return to this.

5You pleaded guilty before me on 19 October.  When interviewed by police on 15 April 2020 you made extensive admissions.  You were originally charged with home invasion, an alleged element of which was possession of a weapon upon entry into your victim's home.  At committal in September this issue resolved.  You have pleaded guilty and will be sentenced on the basis of entry in company with others with intent to steal whilst those victims were present in their home.  The Crown has withdrawn the allegation of possessing a weapon.  You offered to plead guilty to home invasion on the basis now before me in early July 2020.  You receive the benefit of your plea of guilty, which in the circumstances  described should be seen as early and a high level of cooperation in the proceeding.  Your plea has facilitated the interests of justice and accepts responsibility.  I accept that you are remorseful.

6At your plea hearing, which ran on 19 October and 20 November, Ms Caruso for the Crown tendered a written Crown opening,  chronology of the proceeding and CCTV footage of the home invasion.  Mr McGrath, for you, tendered a forensic psychological report of Carla Lechner dated 30 September 2020, letters of character reference and employment and the Youth Justice bail report of Gene Bell dated 7 May 2020.

7On 19 October I adjourned the hearing for the purpose of a forensic neuropsychological report and a report as to your suitability for Youth Justice detention under s.32 of the Sentencing Act.  I have received the report of neuropsychologist Dr Linda Borg dated 28 October 2020 and the pre-sentence report of Stephen Riordon of Court Advice.  It is dated 17 November 2020. 

8Both Mr Caruso and Mr McGrath provided written outlines of plea submissions.

9The circumstances of your offending are set out in the tendered Crown opening which  is Exhibit A.  My own summary may therefore be shorter.  You committed these indictable offences with co-accused Michael Lemau and another unknown offender who now awaits sentence by me.  At the time of offending, 15 March 2020, you were aged 18 and seven months, Lemau 18 and six months.

10At about 3.30 am on that date you and the other two drove to the home of Mahesh and Komal Bhagwani in Sunnyvale Rise, Truganina.  You were in a stolen Toyota Camry.  It is not alleged that you were aware of that.  CCTV footage at the front door of the home shows you and Lemau entering.  Lemau was carrying what appears to be a jemmy bar.  Shortly after, the third person enters.  The door had been forced open.  The bar is the alleged weapon to which I have earlier referred.  It is now alleged that it was possessed only for the purpose of entering.  Mr and Mrs Bhagwani and their young son were asleep and it seems remained so.

11You stole the following as set out in paragraph 13 of the Crown opening.  “Keys to a 2018 Mercedes.  A Gucci handbag.  A wallet.  A Raymond Weil brand watch.  Two Longines branded watches and a Swarovski brand watch.  A pair of Chanel earrings.  A platinum 18-carat gold diamond ring and a platinum 18-carat diamond solitaire ring.  Keys to a BMW, and to a Honda.  A Commonwealth Bank credit card belonging to Komal Bhagwani, various personal cards in the name of Komal Bhagwani.”  The total value of the items stolen from inside the premises is approximately $9400.  You left the house and stole the Mercedes.  It is valued at approximately $33,500.  You drove the Mercedes and Toyota away.  The Mercedes has not been recovered. 

12The obtaining by deception charge relates to you using the stolen Commonwealth Bank credit card to purchase cigarettes and other items at a petrol station in Craigieburn.  The total value is about $50.  It was 4.55 am on 15 March. 

13The victims of your home invasion and related offending have declined to make a victim impact statement.  However, significant impact should be presumed, bearing in mind the seriousness and nature of the offending against them.  Insurance claims were made in respect of the items and vehicles stolen.

14At the time of these offences on 15 March you were on bail.  On 10 April you also breached a condition of bail to report to police.  You were arrested and, as  I have said, interviewed by police on 15 April.  You were remanded in custody but then received bail on 8 May.  That was revoked on 9 July.  You have been remanded in adult custody since.  That you committed the offences whilst on bail is also an adverse feature of the indictable matters.

15You are now aged 19 in two months.  You are the fifth of eight children.  When not in custody you live with your parents and younger siblings in Craigieburn.  You are of Cook Island descent.  Your family came to Australia from New Zealand in 2011, therefore when you were 10 or 11.  They are supportive of you.  Because of arrangements between the Australian and New Zealand governments you have status akin to permanent residency; but you are not an Australian citizen.  You are therefore subject to automatic cancellation of your residency status upon a custodial sentence of 12 months or more.  That includes Youth Justice detention.  Review or appeal to the minister is available to you.  I shall return to this.

16You went to school in the Craigieburn area and ultimately completed Year 11 at TAFE.  There were difficulties at school and you were expelled from Craigieburn Secondary College after Year 7, moving to another school for Years 8 to 10.  You have a relatively good work record since school, having been employed in the insulation industry, for a labour hire company, and with your father on the docks.  A tendered work reference letter speaks well of you.  I find that you have a good work ethic.

17Forensic psychologist, Carla Lechner, states you to be of below average or borderline verbal intelligence.  Full testing was not conducted.  She saw symptoms of ADHD undiagnosed and diagnoses stimulant use disorder.  You began smoking cannabis at 14.  After that, you abused the prescription drug Xanax, at times cocaine and, recently, ice amphetamine.  Ms Lechner describes on your history a cocktail of cannabis, Xanax and cocaine at the time of offending.  She also states you to be 'socially, emotionally and cognitively immature', meaning compared to your same age peers.  You are, she says, easily led.

18Your criminal record states five prior court appearances all in the Children's Court, four without conviction.  Dishonesty offences are in the main.  There are May and October 2017 sentences for armed robbery and aggravated burglary.  Mr McGrath advised that there are pending matters.  At the time of your plea hearing before me, you had indicated the intention to plead guilty to one charge of theft of a motor vehicle.

19Because of history of a fall and head injury at 18 months, after which your mother observed behavioural change, and bearing in mind some of
Ms Lechner's observations, on 19 October Mr McGrath requested an adjournment for an imminent neuro-psychological assessment. There was also reference to that aspect of s.5(2H) of exceptions related to mental impairment. As stated, I have now received the report of Dr Borg. She finds significant relevant impairment by acquired brain injury to be 'highly unlikely'. While she does not utterly discount a diagnosis or symptoms of ADHD, she does not find that. She does find a lower than average intellectual capacity and some cognitive deficits. These would create difficulty and risk in an adult custodial setting.

20As I have stated, on 8 May 2020 you were granted bail.  A tendered 7 May bail report of Gene Bell was provided for that hearing.  It speaks positively of your family support and compliance with earlier Youth Justice community dispositions.  It notes your breaches of bail now before me, substance abuse and negative peer association.  You were found suitable for the Youth Justice supervised bail program.  There is no report or material before me about your progress on that bail.  It was revoked in July at or in the context of a committal case conference which related to these matters before me.

21On 19 October I requested a report on your suitability for Youth Justice detention. That report finds you not suitable in accordance with the criteria set out in s.32 of the Sentencing Act.  Its author, Mr Riordon, is a highly experienced and regarded practitioner in this field.  His report refers to your presentation at interview with him, your ambivalence about a sentence of Youth Justice detention, that you appeared or were stated in a prison assessment to be well settled in your unit at Ravenhall Correctional Centre.  Your focus seemed to be upon length of sentence or time to release rather than opportunity for rehabilitation.  You did not present as particularly impressionable or immature.  There was the prospect of you being exposed to undesirable influence in the prison system.

22Your offending, particularly home invasion, is very serious.  That offence carries a high maximum sentence and is the product of relatively recent legislative change which aims at better protection of people in their homes.  I accept, as Mr McGrath put, that the circumstances of the offences here do not feature some of the aggravating factors at times present in the crime.  However, it remains a serious and threatening intrusion of a family's sense of safety.  You stole valuable things.  The car was not recovered.  Your criminal record, whilst not extensive and set in the Children's Court,  is relevant.

23Such circumstances make relevant the sentencing considerations of your moral culpability, deterrence, that is both general and specific deterrence, the need to condemn the offending and proportionately punish it.  There must be the attempt to deter you and others in order to protect the community.  These considerations make a custodial sentence necessary.

24Section 5(2H) requires this and specifically excludes a sentence combining imprisonment and a community corrections order. There are exceptions to that. Section 5(2HC)(ii) raises mental functioning impairment. Bearing in mind
Dr Borg's opinion, that has become inarguable, which is conceded. Mr McGrath pointed to s.5(2H)(e ) which states the exception 'substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3'. That is a custodial order. It is a very stringent test. Mr McGrath submitted a combination of factors argued to meet it, for example, your immaturity, plea and cooperation, some mitigating matters and the offending circumstances.

25However, central to this was the risk and/or likelihood of deportation. I have referred to this. I have decided that my sentence, whether the head term of imprisonment or youth detention, must be one of over 12 months to be an adequate sentence. This will mean automatic cancellation of your residency. Appeal or review to the minister is not certain, perhaps even likely of success. It may mean that upon parole release you will be transferred into detention custody to await that decision or be deported. This, given your age and now developed connection to this country, is a significant factor moderating your sentence. However, it (within the combination of factors relied upon) does not meet the very stringently stated exception under s.5(2H)(e), nor can it justify a sentence of under 12 months.

26I also bear in mind legislative provision and appellate court authority which does not permit a sentence to be tailored to avoid or accommodate such administrative action.  The issue has become whether  there should be adult imprisonment or youth detention.  There are important moderating factors which have persuaded me to impose youth detention.  They include the following.

(1)  Your plea of guilty, cooperation and remorse;

(2)  Your youth.  You were 18 at the time of offending, in fact about six months beyond the Children's Court jurisdiction.  You have now really just passed 19.

(3)  This places higher emphasis upon your rehabilitation and the benefit of that.  Apparent maturity and comfort within adult custody does not fully persuade me that you should not be given the benefit, in your first custodial sentence, of youth detention.

(4)  The very significant risk of deportation or at least longer detention if placed in immigration custody is also relevant.  It is particularly so in respect of a young person still connected to and reliant upon your family.  I find you to be that.

27The combination of these factors should impact upon both the length of custody and the manner in which it is served.  Having considered what I see to be the relevant matters, I sentence you as follows.

28On Charge 3, home invasion, 20 months' Youth Justice detention.

29On Charge 4, theft, 10 months' youth detention.

30On Charge 6, obtaining property by deception, three months' detention.

31I direct that four months of the detention on Charge 4 be served cumulatively on the detention for Charge 3. That is a total effective sentence of two years Youth Justice detention. I declare under s.35 of the Sentencing Act pre-sentence detention of 155 days already served.  Had you not pleaded guilty I would have imposed a sentence of three years Youth Justice detention.

32Mr Thackaberry, are there other matters that I need to address?

33MR THACKABERRY:  No, Your Honour, no other matters.

34HIS HONOUR:  All right, good.  Thank you for your assistance in this matter. 

35MR McGRATH:  Your Honour, sorry, if I could just clarify.  The charge of obtaining property by deception, was that three months?

36HIS HONOUR:  Yes.  You have just reminded me inadvertently that I have not sentenced for the summary matters.

37MR McGRATH:  Yes.

38HIS HONOUR:  I will turn my mind to that in a moment.  It was three months for obtaining property by deception but it is a concurrent sentence, it does not affect the total length.

39MR McGRATH:  Yes, Your Honour.

40HIS HONOUR:  By oversight, I did not sentence for the bail matters.  As I think I made clear in my reasons that this indictable offending was committed whilst on bail is an adverse feature of it.  Whilst there should be sentences for the bail matters they should be moderate and they should also be concurrent.  I impose a sentence of two weeks' Youth Justice detention in relation to both.  By saying nothing, they run concurrently with the home invasion sentence and thereby do not add to the total sentence that I have announced.

41Anything else?

42COUNSEL:  No, Your Honour.

43HIS HONOUR:  All right, thank you. 

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