Director of Public Prosecutions v Paucek (a pseudonym)
[2020] VCC 1678
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART PAUCEK (A PSEUDONYM) BEN KLOCKO (A PSEUDONYM) KALE SHIELDS (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE DEAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August; 14 September; 13 October 2020 |
| DATE OF SENTENCE: | 16 October 2020 |
| CASE MAY BE CITED AS: | DPP v Paucek (a pseudonym) and others |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1678 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravated home invasion – Aggravated carjacking – Theft – False Imprisonment – Unlawful assault – Serious examples of offences – Young offenders – Relevant criminal history – Category A serious youth offences – High risk of reoffending – s32(2C) of the Sentencing Act 1991 applied – Exceptional circumstances found – Disadvantaged background – Youth Justice Centre Order not appropriate – Community protection – General deterrence – Specific deterrence
Legislation Cited: Crimes Act 1958 (Vic); Summary Offences Act 1966 (Vic); Children, Youth and Families Act 2005 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Mills v The Queen [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; DPP v Kilpatrick [2019] VSC 779
Sentence: Paucek – Total effective sentence of 6 years imprisonment with a non-parole period of 3 years – s.6AAA declaration – 8 years imprisonment with a non-parole period of 5 years.
Klocko – Total effective sentence of 5 years and 6 months imprisonment with a non-parole period of 2 years and 6 months – s.6AAA declaration - 7 years imprisonment with a non-parole period of 4 years.
Shields – Total effective sentence of 6 years imprisonment with a non-parole period of 3 years – s.6AAA declaration – 8 years imprisonment with a non-parole period of 5 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | The Office of Public Prosecutions |
| For Accused Mr Paucek | Mr A. Kennedy | Dowling McGregor Solicitors |
| For Accused Mr Klocko | Mr J. Mortley | Doogue & George Defence Lawyers |
| For Accused Mr Shields | Mr B. Newton | Chester Metcalfe & Co |
HIS HONOUR:
1Stuart Paucek[1], you have pleaded guilty to the following charges -
(i) Two charges of aggravated home invasion contrary to s.77B of the Crimes Act1958 (Vic). The maximum penalty for that offence is 25 years' imprisonment;
(ii) One charge of aggravated carjacking contrary to s.79A of the Crimes Act1958 (Vic), the maximum penalty for that offence is 25 years' imprisonment;
(iii) Six charges of theft contrary to s.74 of the Crimes Act1958 (Vic), the maximum penalty for that offence is 10 years' imprisonment; and
(iv) Two charges of false imprisonment contrary to common law. The maximum penalty for that offence is 10 years' imprisonment.
[1] A pseudonym
2You have also pleaded guilty to the related summary offence of unlawful assault contrary to s.23 of the Summary Offences Act1966 (Vic). The maximum penalty for that offence is three years' imprisonment or a fine of 15 penalty units.
3You pleaded guilty following a committal mention in the Children's Court and the matter being listed for committal but prior to the calling of any witnesses. In the circumstances, I accept that your plea was at an early stage in the proceedings and it was entered with the knowledge that the matter would be heard in this court.
4Your plea is a high value plea of guilty and it has spared numerous witnesses and the victims of your offending the trauma of giving evidence in complex criminal proceedings. It has also spared the community the burden of those proceedings and I further accept that it is evidence of some remorse for your offending.
5You have admitted a criminal history for appearances in the Children's Court and you have been the subject of Youth Probation for six months and two good behaviour bonds without conviction.
6Ben Klocko[2], you have pleaded guilty to the following charges-
(i) Two charges of aggravated home invasion contrary to s.77B of the Crimes Act1958 (Vic);
(ii) One charge of aggravated carjacking contrary to s.79A of the Crimes Act1958 (Vic);
(iii) One charge of false imprisonment contrary to common law;
(iv) Four charges of theft contrary to s.74 of the Crimes Act 1958 (Vic); and
(v) Two charges of the related summary offence of unlawful assault contrary to s.23 of the Summary Offences Act1966 (Vic).
[2] A pseudonym
7You too pleaded guilty at committal in the Children's Court and prior to the calling of witnesses. In the circumstances, I accept that your plea was at an early stage in the proceedings and it was entered with the knowledge that the matter would be heard in this court. Your plea is also a high value plea of guilty and it has spared numerous witnesses, and the victims of your offending, the trauma of giving evidence in complex criminal proceedings. It has also spared the community the burden of those proceedings and I further accept that it is evidence of some remorse for your serious offending.
8You have admitted a criminal history in the Children's Court for serious offences of robbery, affray and other offences of violence. At the time of your offending in this instance, you were the subject of a Youth Probation Order and had recently been detained in a Youth Justice Centre.
9Kale Shields[3], you have pleaded guilty to the following charges -
(i) Two charges of aggravated home invasion contrary to s.77B of the Crimes Act1958 (Vic);
(ii) One charge of aggravated carjacking contrary to s.79A of the Crimes Act1958 (Vic);
(iii) Five charges of theft contrary to s.74 of the Crimes Act 1958 (Vic);
(iv) Two charges of false imprisonment contrary to common law; and
(v) Two charges of the related summary offence of unlawful assault contrary to s.23 of the Summary Offences Act1966 (Vic).
[3] A pseudonym
10You too pleaded guilty at committal in the Children's Court and prior to the calling of witnesses. In the circumstances I accept that your plea was at an early stage in the proceedings and it was entered with the knowledge that the matter would be heard in this court. Your plea is also a high value plea of guilty and it has spared numerous witnesses, and the victims of your offending, the trauma of giving evidence in complex criminal proceedings. It has also spared the community the burden of those proceedings and I further accept that it is evidence of some remorse for your serious offending.
11You have admitted a criminal history in the Children's Court comprising one appearance in relation to attempted armed robbery, handling stolen goods and associated offences. You were the subject of a Youth Supervision Order and Youth Intensive Bail at the time of your offending in this instance.
12An agreed prosecution opening was tendered in evidence and your offending may be summarised as follows –
13On the evening of Sunday, 26 May 2019, the three of you in company with a co-accused, Bradley Fadel[4], travelled to Bentleigh by train. After leaving the railway station you travelled by bus to
Pasadena Crescent in Bentleigh. After surveying the area you entered the rear yard of a property and then broke into the house by forcing open the back door. Three adult members of the occupying family were present. Mr Fadel was armed with a knife and Mr Shields armed himself with a knife from the kitchen. The keys to the family's BMW were demanded from the male occupant and he handed them over.[4] A pseudonym
14Mr Shields and Mr Fadel demanded cash from the female occupant and then demanded that she show them the safe and open it. In fact the family did have a safe and the mother opened it. Its contents were stolen. The male and female occupant were both assaulted during the course of the home invasion and the female occupant was punched in the face by Mr Shields. A quantity of jewellery, mobile phones, computers, passports, shoes and cash were stolen. All four offenders then fled in the family BMW which was driven at high speed along the
Monash Freeway to Port Melbourne where it was crashed in Todd Road at approximately 9 pm.15These events are the subject of Charges 1, 2, 3 and 4 on the indictment and the related summary offences of unlawful assault in relation to the male and female occupant of the house.
16The family have not provided Victim Impact Statements to the Court but it is plain that your egregious, violent invasion of their home and your offending must have had a profoundly traumatic effect upon them.
17After crashing the stolen BMW, you then came upon a young woman, her husband and young daughter as they were leaving their business in Anderson Street, Port Melbourne. After the woman entered their car, it was surrounded by all four accused.
18Mr Klocko, who was armed with a knife, demanded that she open the door and he threatened to stab her. She accidently unlocked the door and Mr Klocko then forced it open. He demanded that she get out of the car. Her husband went to her assistance and was threatened by Mr Klocko with the knife. All four offenders then got into the vehicle and drove away. This offending is the subject of Charge 5 on the indictment.
19I have received in evidence a Victim Impact Statement of the woman and one on behalf of her daughter who was then aged four years and I accept that your grave offending has had a profoundly traumatic effect upon them. Their lives have been seriously disrupted and their sense of security and wellbeing irreparably damaged.
20The stolen vehicle was then driven to Strathmore and Ardeer before arriving at Ivy Close, Derrimut at approximately midnight. Four offenders then forced their way into a house that was located in Ivy Close. The house was occupied by a male and female occupant and two relatives. The front door of the house was kicked in and the four offenders were wearing gloves and face coverings. The male confronted them and he was assaulted while demands were made of him for money and valuables. All four members of the household were held in one bedroom while the house was searched. Two vehicles were stolen, computers, handbags, mobile phones and 15,000 euros in cash. This offending is the subject of Charges 6 to 10 on the indictment.
21The family have not submitted Victim Impact Statements but it is again plain that these grave crimes must have had a deeply traumatic effect on them.
22The family Mercedes Benz was then driven to Mernda by Mr Klocko and Mr Paucek, arriving at premises located at Avoca Avenue at approximately 3.40 am. A male and female and their two children were asleep in the house. Mr Klocko forced his way into the house in company with other unidentified offenders. Mr Paucek remained in the vehicle. The offenders were all wearing balaclavas and woke the male and demanded money from him. Two of the offenders were armed with knives and the male suffered cuts to his head during the course of a struggle.
23The house was ransacked and searched and a child's bedroom was searched and an iPad stolen from it. The family BMW was stolen together with phones, handbags and other personal property.
24The two stolen vehicles were then driven off and the Mercedes was thereafter crashed in Drumcondra. Mr Paucek was arrested in the BMW later that morning. All three accused were arrested by police and each of you made no comment records of interview when questioned by investigators. The family have also not made Victim Impact Statements but it is again plain that this grave offending must have had a profoundly traumatic effect upon them and their children.
25In my opinion, these are very serious examples of these serious offences. In relation to the aggravated home invasion and associated charges, the victims' homes were forcibly entered and the occupants terrorised. The purpose of the offending was to obtain valuables and you each had absolutely no concern for the wellbeing of the occupants. You invaded their privacy and security in search of cash and other liquid assets and it was part of these crimes that one or more of you would be armed.
26Offending of this nature strikes at the heart of the values and foundations upon which our community is built and it is the fundamental responsibility of this Court to protect that community, its values and foundations.
27I will examine the relevant sentencing principles in this case in due course but it is also a fundamental responsibility of this Court to send an unequivocal message to the community that offending of this nature will be met with significant punishment by way of appropriate penalty on conviction.
28The offence of aggravated carjacking is also, in my opinion, a serious example of that serious offence. The woman concerned, her husband and young daughter were heading home after, no doubt, a hardworking and productive day when she was set upon by four armed, violent and angry young men with no regard whatsoever for her, her husband or her daughter who saw the terrifying events unfold.
29Before turning to your personal circumstances, I will set out the relevant sentencing principles in this case -
30You are all young offenders for the purposes of the Sentencing Act1991 (Vic) (‘the Act’) and the relevant provisions of the Act are engaged in each of your cases. And more generally, the principles set out in decisions such as Mills v The Queen [1998] 4 VR 235 and
Azzopardi v The Queen (2011) 35 VR 43 are engaged in each of your cases. As the Court of Appeal stated in Azzopardi, where the degree of criminality in the offending requires the sentencing objectives of deterrence, punishment and the protection of the community to be more prominent in sentencing, the weight to be attached to youth and the role of rehabilitation is correspondingly reduced. This is such a case.31The offences of aggravated home invasion and aggravated carjacking are by operation of s.3 of the Act both category A serious youth offences. By operation of s.32(2C) of the Act, the Court must not make a Youth Justice Centre Order or a Youth Residential Centre Order unless the Court is satisfied that exceptional circumstances exist.
32It was submitted on your behalf that as each of you was a child, for the purposes of the Children, Youth and Families Act2005 (Vic), as you were 17 at the time of your offending, the sentencing jurisdiction of this Court was derived from s.586 of that Act.
33It was further submitted that an order that you be detained in a Youth Justice Centre must be made in accordance with the relevant provisions of the Sentencing Act 1991 (Vic). This was accepted by the prosecution and I agree with this analysis.
34However, it was further submitted that whilst the words of s.32(2C) of the Act do not refer to a 'child', but to a 'young offender' and when regard is had to the Parliamentary Second Reading Speech in relation to the provisions in question, it is clear that it was intended that s.32(2C) applied only to offenders aged between the ages of 18 to 21.
35I do not accept this submission for the following reasons -
36Firstly, the express words of s.32(2C) are clear and unambiguous, the provision applies to young offenders and each of you is a young offender.
37There are no words in the provision that suggest that it is confined in its operation to young offenders over the age of 18. It is therefore not necessary to resort to the relevant Parliamentary materials in order to discern the meaning of the provision.
38Secondly, the provision also confines the Court's power to make a Youth Residential Centre Order. Such an order can only be made in relation to an offender who is under the age of 15. This plainly contemplates that the provision applies to offenders under the age of 18.
39Thirdly, in the DPP v Kilpatrick [2019] VSC 779, Justice of Appeal Coghlan sentenced an offender to a Youth Justice Centre Order in relation to a charge of manslaughter which is a category A serious youth offence. The offender was 16 at the time of the offending and 18 at the time of sentence and so was a child and a young offender for the purposes of the provisions now under consideration. His Honour applied s.32(2C) of the Act and concluded that exceptional circumstances (including the offender's age) had been made out.
40Accordingly, I am satisfied that before I can make a Youth Justice Centre Order in any of your cases, I am required to be satisfied that exceptional circumstance exist.
41In order to assist in the consideration of whether or not exceptional circumstances existed in any of your cases, I directed that a pre-sentence report be prepared in relation to each of you and I have received those reports in each of your cases. In the case of Mr Paucek I also sought a pre-sentence psychiatric report from Forensicare.
42I now turn to your personal circumstances.
43Mr Paucek, you were born in August 2001 in Sudan and are now aged 19. Your family fled Sudan when you were aged one and resided in a refugee camp in Egypt until 2015 when you migrated to Australia as a refugee. Following your arrival in Victoria, the family resided in Reservoir and then in Broadmeadows. You were educated to year 10 level and more recently you have been endeavouring to complete the VCAL qualification whilst in youth detention. Your working history is a limited one since leaving school and you have no formal or skilled qualifications.
44I have received in evidence a detailed Children's Court Clinic Report dated
5 March 2020 setting out your personal circumstances and developmental history. Against the setting of your development taking place as a refugee, your family life has been severely disrupted by your father's violence towards your mother and your siblings. It would also appear that your father has multiple families and also resides in Sudan. This dislocation and disruption in turn led to behavioural difficulties and drug abuse. The report concludes that you have 'a large number of the more behaviour features of psychopathy that reflect anti-sociality and lifestyle impulsivity'.45You are a high risk of reoffending and in particular violent offending. At the time of this assessment you were also experiencing psychotic symptoms and were receiving anti-psychotic medication. The author of the report was also of the opinion that you were suffering from post-traumatic stress disorder. After considering this evidence, I directed that you be assessed by Forensicare and I have received in evidence a Psychiatric Court Report dated 10 September 2020. The report concludes that you are not currently suffering from a major mental illness and you do not meet the criteria for a diagnosis of post-traumatic stress disorder.
46The report concludes that the significant diagnoses in your case are substance abuse disorders. Whilst you were treated with antipsychotic medication in custody for approximately eight months this has now ceased but you continue to received support and counselling from Orygen Youth Services.
47I have also received in evidence a Pre-sentence Report dated 8 October 2020 stating that you are not suitable for a Youth Justice Centre Order. The report details the extensive consultations and materials considered by the authors and sets out your current circumstances in youth detention.
48You are described as exhibiting pro-criminal and minimising attitudes to the use of violence. It is also clear that you have a history of assaults and other threats of violence towards staff in youth detention. Whilst it appears that the violent incidents in youth detention have to some degree moderated, you continue to demonstrate a propensity for violence. The report concludes that your prospects for rehabilitation in the Youth Justice system are poor and you are not an immature or impressionable young person.
49On the basis of this and the other evidence before me, I am satisfied that the protection of the community and specific deterrence are prominent sentencing considerations in your case.
50Your counsel submitted that the exceptional circumstances in your case which would support the making of a Youth Justice Centre Order are as follows -
(i) You were a child at the time of your offending;
(ii) Your disrupted background;
(iii) Your poor education;
(iv) You have spent in excess of 500 days on youth remand;
(v) You have experienced periods of lockdown whilst on youth remand;
(vi) The COVID-19 restrictions now imposed by reason of the pandemic;
(vii) Your early plea of guilty;
(viii) Your limited criminal history;
(ix) The fact that you have re-engaged with Orygen Youth Services; and
(x) The letter of apology written by you which is an expression of your current remorse for your offending.
51Having anxiously considered the matters relied on by your counsel, I am satisfied that you have demonstrated exceptional circumstances and it is therefore open to me to impose a Youth Justice Centre Order in your case.
52However, I am not satisfied that it would be appropriate for me to do so for the following reasons –
(i) The maximum term of Youth Justice detention available to me is four years and I do not accept that that maximum is proportionate to the gravity of your offending;
(ii) Whilst I am required to make my own assessment of the criteria set out in s.32 of the Act, I accept the contents of the comprehensive Pre-sentence Report which has been provided to the Court. As I observed during the plea hearing, the Pre-sentence Report does not qualify my obligation to have regard to your youth in the sentencing synthesis but in my opinion the report accurately sets out the factors and relevant considerations in relation to the s.32 criteria in your case;
(iii) In my opinion, your prospects of rehabilitation are to be approached with caution and you pose a very real risk to the community of further violent offending;
(iv) I do not accept that the sentencing principle of general deterrence would be addressed to the appropriate degree by the imposition of a Youth Justice Centre Order in your case;
(v) You must also be deterred from re-offending and I do not accept that a Youth Justice Centre Order would address this sentencing consideration. You have offered no cogent explanation to the Court as to why you carried out this series of grave offences and I do not accept that you fully comprehend the seriousness of what you have done.
(vi) In my opinion, you brazen and violent crimes must be unequivocally denounced by this Court by the imposition of a term of imprisonment; and
(vii) You are now 19 years of age.
53Mr Klocko, you were born on August 2001 in Kenya in a refugee camp and you are now aged 19. You are of Sudanese heritage. Your family migrated to Australia as refugees in 2004, initially residing in Perth before moving to Sydney. Your mother, yourself and your five siblings moved to Melbourne in 2016. Your family life was severely disrupted by the violence carried out by your father towards your mother. The violence was extremely serious, resulting in the imprisonment of your father and the hospitalisation of your mother.
54Your father also directed violence towards you and your siblings. Your parents are now divorced. Your father's criminal behaviour inflicted further poverty on you and your family and your education and personal development were seriously disrupted by this.
55You enrolled in secondary college when the family moved to Melbourne and you were able to complete year 10. You left school in 2018 and are now completing your VCAL certificate in youth detention. I have received in evidence your term one 2020 report and a letter from your teacher dated 4 August 2020 setting out your positive educational progress in detention. The letter speaks highly of you and your commitment to your personal development is to your credit.
56You have no significant work history or formal qualifications.
57I have also received in evidence a Psychological Report of Ms Gina Cidoni setting out your personal history and psychological profile. Ms Cidoni concludes that you exhibit some antisocial attitudes and are prone to alcohol and drug abuse. She further concludes that you suffer from an adjustment disorder and describes this as stress related. There is no doubt that the significant trauma you experienced as a child due to your father's violence has caused your maladjustment.
58It also appears that you have little family support and in recent years, and prior to your arrest and remand on these charges, you did not have a stable residence.
59The Youth Justice Pre-sentence Report in your case states that your offending occurred in the context of you being transient with negative peer associations and substance abuse. It states that whilst you have received extensive interventions in the Youth Justice system, you have failed to engage with case workers and staff. You are of large stature and are recorded as being involved in numerous violent incidents during your period in youth detention or on remand.
60The report also states, 'it is assessed that A has poor prospects for rehabilitation and resistance to targeted intervention suggest his motivation to desist from offending is minimal'. The authors state you have a poor attitude and no motivation to address your offending behaviour. It is also clear from the report that the authors do not regard you as impressionable or immature; quite the opposite.
61Your counsel submitted that the exceptional circumstances in your case are as follows –
(i) You were 17 at the time of the offending;
(ii) Your early plea of guilty;
(iii) Your limited criminal history;
(iv) Your background of severe disruption and disadvantage;
(v) Your adjustment disorder caused by family violence;
(vi) You have progressed well in relation to the VCAL certificate;
(vii) The restrictions imposed on you during the COVID-19 pandemic including periods of lockdown;
(viii) The lengthy time you have spent on youth remand; and
(ix) Your letter of apology and accompanying remorse.
62Having also considered carefully the matters relied on by your counsel, I have come to the conclusion in your case that you have demonstrated exceptional circumstances. It is therefore open to me to impose a term of Youth Justice Centre detention in your case.
63However, I am not satisfied that it would be appropriate for me to do so in your case for the following reasons –
(i) The maximum term of Youth Justice Centre detention available to me is four years and I do not accept that that would be appropriate to the gravity of your offending;
(ii) Whilst I accept that I am required to make my own assessment of the s.32 criteria as I have already stated, I accept the contents of the Pre-sentence Report that has been provided to me. You have not engaged positively in detention. You have a history of violent incidents and it would appear that you have a poor attitude. I accept that you have engaged with your VCAL classes but your pro-criminal attitudes have not materially changed. It is also clear that you are not impressionable, immature or at risk in adult custody. However, as I have already stated, I am nevertheless conscious of the role youth must play in the sentencing synthesis in your case.
(iii) In my opinion, your prospects of rehabilitation must also be approached with caution and you also pose a risk to the community of further serious offending. You too have offered no cogent explanation to the Court as to why you carried out these serious crimes;
(iv) I do not accept that the sentencing principle of general deterrence would be addressed to the appropriate degree by the imposition of a Youth Justice Centre Order in your case;
(v) You must also be deterred from reoffending and I do not accept that a Youth Justice Centre Order would address this sentencing consideration;
(vi) As I have already stated, your brazen and violent crimes must be unequivocally denounced by this Court by the imposition of a term of imprisonment; and
(vii) You are now 19 years of age.
64Mr Shields, you were born in November 2001 in a refugee camp in Egypt and you are now aged 18 years. You will turn 19 next month. You too are of Sudanese heritage and migrated to Australia with your family as a refugee in 2004 and then resided in Sydney. Your childhood and developmental years were seriously disrupted by your father's serious violence directed towards your mother, yourself and your siblings. Your father's violence was of sufficient seriousness to result in his imprisonment and ultimately his deportation from Australia in 2017. Your education was disrupted and attended numerous primary and secondary schools. This in turn led to behavioural and social problems.
65You have an extensive criminal history in New South Wales and were the subject of youth detention in that state. Whilst these court appearances were not part of the criminal history admitted by you in this proceeding they are referred to in a number of pre-sentence and psychological reports in evidence before the Court. Your family, namely your mother and five siblings moved to Victoria in 2018. At that time you were the subject of a New South Wales Youth Parole Order and two New South Wales Youth Probation Orders.
66Shortly after arriving in this state you reoffended and on 16 December 2018, you were placed on a Youth Supervision Order by the Children's Court of Melbourne for the offences of attempted armed robbery and possession of a controlled weapon. Further, following this you appeared in the Children's Court at Melbourne on 22 February 2019 charged with robbery and associated offences and were released on Youth Intensive Bail.
67It is clear your criminal history is significant in this case and you were the subject of a number of court orders at the time of your serious offending, the subject of the charges before this Court. You too are currently undertaking the VCAL qualification in youth detention. You have no formal qualifications or relevant work history. I have received in evidence a Psychological Report of
Ms Pamela Matthews dated 3 August 2020 setting out your background, personal circumstances and psychological profile. Ms Matthews describes you as articulate and cooperative and not exhibiting any signs of psychosis. You are of average intelligence.68Ms Matthews concludes that you exhibit, however, symptoms of post-traumatic stress disorder but there are no mental health issues directly related to your offending in her opinion. She concludes that your risk of reoffending and violent reoffending is high. You suffer from polysubstance abuse disorder.
Ms Matthews' findings are consistent with the Psychological Report prepared by Ms Leanne Cusak in 2018. A number of Youth Supervised Bail Reports have also been tendered in evidence detailing your progress whilst on bail in Victoria and prior to the commission of these offences.69I have also received in evidence a series of letters prepared by your youth workers and teachers setting out your progress in youth detention. It appears that you have maintained positive relationships with some of your workers and you are engaged in a positive way with the educational services delivered to you. The Youth Justice Pre-sentence Report prepared for this hearing concludes, however, that you are not suitable for a Youth Justice Centre Order. The authors of the report consulted widely with your case workers and relevant psychologists. The report records that you have made progress towards a pro-social lifestyle and have exhibited some insight into your offending.
70Nevertheless, your overall behaviour in youth detention is recorded as unsatisfactory involving numerous acts of violence directed at staff and other detainees. You are currently facing further criminal charges of affray, assault an emergency worker on duty and other offences of violence allegedly committed by you whilst in youth detention. The report addresses the s.32 criteria in the Act and concludes that your behaviour in detention, 'demonstrates an entrenched criminal attitude characterised by violence and a disregard to the opportunities provided to him by the court'.
71The report notes that due to your age you may be vulnerable in adult custody but you perpetuate violence of your own accord and by implication you are not properly described as impressionable or vulnerable.
72Your counsel submitted that the following exceptional circumstances exist in your case –
(i) Your age at the time of your offending;
(ii) Your disrupted and disadvantaged background characterised by extreme domestic violence;
(iii) Your disrupted education;
(iv) The findings of Ms Matthews and in particular your symptoms of post-traumatic stress disorder;
(v) Your early plea of guilty;
(vi) Your remorse for your offending demonstrated by your letter of apology;
(vii) The progress you have made in your education;
(viii) The COVID-19 restrictions including periods of lockdown in youth detention; and
(ix) The support of your family.
73I have also carefully considered the matters relied upon by your counsel and I have concluded that you have demonstrated exceptional circumstances and it would be open to me to impose a Youth Justice Centre Order in your case.
74However, I am not satisfied that it would be appropriate for me to do so in your case for the following reasons –
(i) The maximum term of Youth Justice Centre detention available to me is four years and I do not accept that it would be proportionate to the gravity of your offending;
(ii) Whilst I accept that I am required to make my own assessment of the s.32 criteria, as I have already stated, I accept the contents of the Pre-sentence Report that has been provided to the Court. You have an extensive history of violent offending and you have engaged in repeated acts of violence whilst in youth detention. You have also offended in a serious way whilst in the community and the subject of various court ordered dispositions which you have breached by reoffending. Whilst I accept that you have made some educational progress, you continued to resort to violence to resolve the personal issues you face. Nevertheless, I am conscious of the role that youth must play in the sentencing synthesis in your case;
(iii) In my opinion, the protection of the community from you is an important consideration in your case and I do not accept that youth detention would adequately address this;
(iv) Your prospects for rehabilitation are to be approached with caution and you too have offered no cogent explanation to this Court why you carried out these serious crimes;
(v) I do not accept that the sentencing principle of general deterrence would be addressed to the appropriate degree by the imposition of a Youth Justice Centre Order in your case;
(vi) Specific deterrence is also an important sentencing consideration in your case and youth detention has to date failed to deter you from offending. Although I accept that you have now spent a long period of time in youth detention;
(vii) Your brazen and violent offending must also be unequivocally denounced by this Court by the imposition of a term of imprisonment; and
(viii) You will soon turn 19 years of age.
75In relation to the offending the subject of the charges on the indictment, all three of you are charged with the aggravated home invasion at Bentleigh East and associated charges and the subsequent aggravated carjacking at Port Melbourne. These offences were committed pursuant to a joint criminal enterprise.
76Thereafter Mr Paucek and Mr Shields are charged with aggravated home invasion and associated offences at Derrimut. Mr Klocko is the only one of you charged with the aggravated home invasion and theft at Mernda. Mr Paucek is charged with the theft of the motor vehicle at Mernda.
77It is therefore clear that following the aggravated carjacking at Port Melbourne you each played different roles in the subsequent offending and I have taken this into account in formulating the appropriate sentences in your case. I also accept that your personal circumstances differ but, in my opinion, those differences are not such as to warrant a disparate sentence in any particular case or cases.
78This was accepted by your counsel and the prosecution and in fact you all share a number of personal circumstances and your respective prospects of rehabilitation. In the result, the sentence of the court is as follows -
79In relation to Stuart Paucek, on Charge 1, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.
80On Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
81On Charge 3, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
82On Charge 4, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for two years.
83On Charge 5, the charge of aggravated carjacking, you are convicted and sentenced to be imprisoned for two years.
84On Charge 6, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.
85On Charge 7, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
86On Charge 8, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
87On Charge 9, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
88On Charge 10, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for two years.
89On Charge 12, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
90On the related summary offences, you are convicted and sentenced to be imprisoned for one month.
91The sentence imposed on Charge 1 is the base sentence. I direct that six months of the sentence on Charge 4, six months of the sentence on Charge 6, six months of the sentence on Charge 5, 18 months of the sentence on
Charge 6 and six months of the sentence on Charge 10 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.92This makes for a total effective term of imprisonment of six years.
93I direct that you serve three years before becoming eligible for release on parole.
94I declare that you have served 506 days by way of pre-sentence detention not including today. But for your pleas of guilty I would have imposed a total effective term of imprisonment of eight years and fixed a non-parole period of five years.
95In relation to Ben Klocko, the sentence of the court is as follows –
96On Charge 1, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.
97On Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
98On Charge 3, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
99On Charge 4, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for two years.
100On Charge 5, the charge of aggravated carjacking, you are convicted and sentenced to be imprisoned for two years.
101On Charge 11, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.
102On Charge 12, the charge of theft you are convicted and sentenced to be imprisoned for three months.
103On Charge 13, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
104On each of the related summary offences, you are convicted and sentenced to be imprisoned for one month on each of those charges.
105The sentence imposed on Charge 1 is the base sentence. I direct that six months of the sentence on Charge 4, six months of the sentence on Charge 5, and 18 months of the sentence on Charge 11 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.
106This makes for a total effective term of imprisonment of five years and six months.
107I direct that you serve two years and six months before becoming eligible for release on parole.
108I declare that you have served 505 days by way of pre-sentence detention not including today. But for your pleas of guilty, I would have imposed a total effective term of imprisonment of seven years and fixed a non-parole period of four years.
109Kale Shields, in your case the sentence is as follows –
110In relation to
Charge 1, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.111In relation to Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
112On Charge 3, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
113On Charge 4, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for two years.
114On Charge 5, the charge of aggravated carjacking, you are convicted and sentenced to be imprisoned for two years.
115On Charge 6, the charge of aggravated home invasion, you are convicted and sentenced to be imprisoned for three years.
116On Charge 7, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
117On Charge 8, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
118On Charge 9, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
119On Charge 10, the charge of false imprisonment, you are convicted and sentenced to be imprisoned for two years.
120On the related summary offence, you are convicted and sentenced to be imprisoned for one month.
121The sentence imposed on Charge 1 is the base sentence. I direct that six months of the sentence on Charge 4, six months of the sentence on Charge 5, 18 months of the sentence on Charge 6 and six months of the sentence on Charge 10 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.
122This makes for a total effective term of imprisonment of six years.
123I fix a non-parole period of three years in your case. I declare that you have served 444 days by way of pre-sentence detention not including today. But for your pleas of guilty, I would have imposed a total effective term of imprisonment of eight years and fixed a non-parole period of five years.
124I will make the disposal order sought by the prosecution. Are there any further orders required?
125MR PICKERING: Your Honour, there was a compensation order.
126HIS HONOUR: Yes.
127MR PICKERING: That was the only other one.
128HIS HONOUR: That was in relation to the damage to the motor car, is that right?
129MR PICKERING: Yes, Your Honour, it is about $930.
130HIS HONOUR: I have not received any material in relation to that. What is the position, gentleman, in relation to that order?
131COUNSEL 1: Not opposed, Your Honour.
132HIS HONOUR: It is not opposed, yes, all right.
133COUNSEL 2: Similar, Your Honour, for Mr ‑ ‑ ‑
134MR PICKERING: Yes.
135COUNSEL 3: (Indistinct words).
136MR PICKERING: And I will correct myself, Your Honour, it is actually $981.82.
137HIS HONOUR: All right, well look if you could just file the appropriate order or if your instructor could please, Mr Pickering and ‑ ‑ ‑
138MR PICKERING: Yes, Your Honour. I do not know whether it has been filed, Your Honour, I thought it had but I will have it re-filed again today.
139HIS HONOUR: It has been. My associates tell me it has been. Yes, all right, thank you. So, I will make that order.
140HIS HONOUR: All right, thank you. So, there are no further orders required. Those remarks will be uploaded onto the media portal as I have said, subject to the various conditions that I have already announced. The orders will be prepared and signed and will be distributed by my staff to the parties.
141MR PICKERING: If Your Honour pleases.
142HIS HONOUR: Thank you. So, we will adjourn now until is it 10.30 - 10.30 on Monday. Thank you all for your assistance. The court will now adjourn.
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