Director of Public Prosecutions v Pan
[2021] VCC 626
•17 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01856
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMANUEL PAN |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2021 | |
DATE OF SENTENCE: | 17 May 2021 | |
CASE MAY BE CITED AS: | DPP v PAN | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 626 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Home Invasion – Theft – Pleas of guilty
Legislation Cited: Sentencing Act 1991 s.6AAA.
Cases Cited:N/A
Sentence: 2 years 3 months with non-parole period of 13 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Ms S. Wendlandt | Peter Lunt Lawyers |
HER HONOUR:
1Emmanuel Pan, today you pleaded guilty to the offences of Home Invasion and theft. These offences occurred mid-morning on Sunday 22 December 2019.
2A female friend of yours, Ms Changtime, was involved in a dispute with the residents of a unit in Clayton North. She was ejected from that unit, and left, returning a short time later with you. Ms Changtime was screaming and yelling and hitting the front windows. You were carrying a hammer, which you used to smash a window at the front of the unit. Ms Changtime had another hammer, and a knife and smashed another window, near the door. You were unaware that she had a knife.
3You put your hand through the broken window near the door, but the male resident of the unit pushed you away. You grabbed his hand and tried to pull him towards you, and there was a struggle through the broken window, that left both of you with cuts on your hands.
4You managed to open the door, and you and Ms Changtime entered the unit. The male resident left his home, to escape, at this time, the female resident had left earlier when you and Ms Changtime arrived.
5You and Ms Changtime stole the television, and left.
6At the time of this offending you were on a two year Drug Treatment Order, which had been imposed on 28 November 2019. You had served 191 days on remand for the offending that led to that drug treatment order. You were also on a community correction order, which had been imposed on 23 October 2018. The community correction order had included conditions for you to undergo assessment and treatment in respect to drug abuse.
7You were arrested for an unrelated matter on 24 December 2019, and charged on summons for this matter in February 2020. You have no pre-sentence detention applicable to this matter, although you have been in custody since your arrest in December 2019, first on remand and then serving the restored sentence from the Drug Treatment Order.
8You indicated you would plead guilty to the charges now before me, in October 2020. The prosecution have accepted that you offered to plead guilty at an early stage.
9You were 22 when you committed these offences and are currently 23. You were born in Melbourne, and are the oldest of five children. Your parents come from South Sudan and they arrived in Australia in 1997, shortly before you were born. They remain together and are law abiding members of the community. Your parents are involved in the community of their local Presbyterian Church.
10When you were around 14-15 you and your parents went back to South Sudan for several weeks. You report that when you were there you saw terrible things and found the experience traumatic.
11You have described your family and your upbringing as loving and caring, and that you were raised in what you have described as 'the right way'. You were not subject to any form of abuse. When you were 16 you were injured in a car accident and you still have two pins in your right ankle from that event. This still causes you debilitating pain at times. You have a two year old daughter, whom you have never met and you are presently single.
12You had some troubles at school due to misbehaviour, and left secondary school when you were 17. You describe yourself as having trouble concentrating. You started a plumbing pre-apprenticeship, and then a TAFE course in construction, which you did not complete. You do not have a steady work history.
13When you were 16 you wanted to be more independent, and work out your life for yourself. You started using Cannabis, and then when you were 17 you started abusing Xanax. Around the same time you started using methylamphetamine, and developed a daily habit with that drug. You were using significant amounts of that drug. At age 19 you started consuming GHB and were using large amounts of that drug, also. In March 2019 your brother was arrested for a very serious crime, and it appears that after that your drug use increased again.
14You told Mr Cummins, who prepared a report for this hearing, that you have never undergone any residential drug rehabilitation, and that you are hoping to take part in such a program in future. It does not appear that you made any progress towards addressing your drug issues under the community correction order, or the drug treatment order, although you had only been on the drug treatment order for around a month at the time of this offending.
15Mr Cummins reports that you acknowledged having a short temper and that you do not like it when people tell you what to do. You said you would like to do an anger management course. And you also told him that you can see now that drugs have destroyed your life. Mr Cummins said, 'He provided a history which was consistent [of you] having a personality disorder - most probably a Borderline Personality Disorder'.
16You were affected by drugs at the time of this offence, and acting to assist your friend who was in a disagreement with the occupants of the unit. This explanation does not excuse your offending in any way. You accept that you are to blame for this offending, and you have not tried to put the blame on anyone else.
17Mr Cummins assessed your risk of committing further violence offences as 'Moderate-High'. He noted the presence of some protective factors, particularly your attachment to your parents, and that you appear to be of average intelligence. There were also risk factors such as your difficulty with authority, and your drug use.
18You have a relevant criminal history. Your first appearance before the courts was in October 2018. You have accumulated many prior findings of guilt for dishonesty offences, driving offences and one charge of aggravated burglary. That charge was one of the 18 offences that led to you being placed on the Drug Treatment Order in November 2019. I was told that you also have subsequent convictions for which you were sentenced to time served, which was 72 days.
19The matters which I take into account in mitigation include:
(a) Your plea of guilty was entered at an early stage, and it gives rise to substantial mitigation of your sentence, particularly in light of the effect of the COVID-19 pandemic upon the business of the court. There are also indications that you are remorseful for your offending;
(b) You have been in custody since December 2019, on remand and serving other sentences, so you have no pre-sentence detention available to you. This time in custody was during 2020 when the pandemic was effecting courses and visits. I note that you told Mr Cummins you were in the “slot” for 8-10 months during that period, due to an allegation of assault, but that you have not been charged with that. I take this time on remand, and that it was during 2020 in particular, into account in terms of totality and will mitigate your sentence accordingly;
(c) Your ankle causes you pain sometimes which makes your time in custody more onerous than for a person without such an injury;
(d) Mr Cummins noted your present expressed willingness to engage in rehabilitative activities such as an anger management course, and drug rehabilitation. I am mindful of not imposing a sentence which crushes or reduces your good intentions; and
(e) Your parents are still supportive of you. While you tried to be independent of them and live your own life, their good influence is still there for you as guidance and support, if you are mature enough to turn to them.
20I am also required to give weight in the sentencing exercise to the principles of general deterrence, denunciation and just punishment. Your behaviour was disgraceful and very frightening to the victims. Home invasion is a serious offence, and your behaviour on this occasion was violent and aggressive. Reflecting the gravity of this offence, parliament has legislated that a sentence of imprisonment which is not combined with a community corrections order should be imposed unless some exception is made out. You have not sought to establish such an exception.
21Taking into account your history, and Mr Cummins’ opinion, I consider that you have guarded prospects of rehabilitation. They are contingent upon you addressing your drug habit and your anger issues. You have support, and are presently motivated to improve yourself and your way of life.
22The sentences I am going to impose are intended to deter you from committing further offences. I will set a relatively long period for you to be able to be on parole, if it is granted, to assist and foster your rehabilitation.
23Would you please stand up.
24Mr Pan, on Charge 1 – Aggravated Burglary[1] – you are sentenced to two years' imprisonment.
[1]This was a slip, in delivery of sentence, which has not been amended.
25On Charge 2 – theft – you are sentenced to six months' imprisonment.
26Three months of the sentence on Charge 2 will be served cumulatively upon the sentence of Charge 1.
27
That means a total effective sentence of two years and three months. I set a
non-parole period of 13 months.
28You may sit down.
29Pursuant to s.6AAA of the Sentencing Act, I declare that if Mr Pan had not pleaded guilty I would have sentenced him to three and a half years' imprisonment, with a non-parole period of two years.
30Are there any other orders?
31MS MAGUIRE: No, Your Honour.
32HER HONOUR: All right, thanks, Ms Maguire. Ms Wendlandt, anything?
33MS WENDLANDT: Nothing further.
34HER HONOUR: All right, we will adjourn the court. If Mr Pan could just remain in court for a moment to speak to his barrister before he is taken downstairs. Thank you. We will adjourn.
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