Director of Public Prosecutions v Paulino

[2017] VCC 397

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL JURISDICTION

Revised Not Restricted

Suitable for Publication

Case No. CR-16-01422

CR-16-02043
Indictment No. G1610910
C1610659

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER PAULINO

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATEOF HEARING:	27 October 2016, 29 November 2016 and 1 February 2017
DATEOF SENTENCE:	21 March 2017
CASE MAY BE CITEDAS:	DPP v Paulino
MEDIUMNEUTRAL CITATION:	[2017] VCC 397

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:          Sentence – theft – criminal damage – affray – aggravated burglary – recklessly causing injury – negligently dealing with proceeds of crime – commit an indictable offence whilst on bail – wilfully trespass in a public place – contravene certain conduct conditions whilst on bail – plea of guilty – sentencing considerations

Legislation Cited:     Crimes Act 1958 (Vic), s18, s74, s77(1), s194(4), s464ZF(2); Bail Act

1977, s30B; Summary Offences Act 1966, s24(2); Sentencing Act 1991 Cases Cited: DPP v Tang [2016] 1631

Sentence:                 Convicted and sentenced to a total effective sentence of five years and seven months’ imprisonment, with a non-parole period of three years. Section s6AAA declaration: conviction and sentence of seven-and-a-half years’ imprisonment with a non-parole period of four-and-a-half years.

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Ms J Fallar  Solicitor for the Office of Public Prosecutions

For the Accused  Ms J Munster  Victoria Legal Aid

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

HIS HONOUR:

Introduction

1Paul Paulino, you have pleaded guilty to a large number of charges. I propose to deal with each set of charges separately.

2I will summarise your offending in the order that it occurred.

13 February 2016

3On 13 February 2016, unknown offenders, but persons known to you, stole a Ford Focus car. You were picked up by these co-offenders. You occupied the car for a couple of hours. You assumed that the car was stolen because the driver was wearing gloves, and I assume that was to avoid leaving traceable fingerprints or DNA.

4You were arrested on 24 February 2016. You admitted that you understood that the car was stolen, and that you were a passenger in the car for a short period of time. (Theft – Charge 1 on the second indictment).

5You were on bail at the time when you were a passenger in the car. (Breach of bail – Charge 2 of the second summary offences).

12 March 2016

6The annual Moomba Festival occurred over 11 to 14 March 2016. Information was obtained that youths belonging to “Apex” and “YCW” (Young Connected Warriors) and another gang known as “UK2K” were present in the Melbourne CBD, and more particularly, in the areas frequented by patrons of the Moomba Festival.

7There were approximately 150 youths on the concourse area of Federation Square at around 10.00pm. By about 10.15pm, there were two groups of youths of about 50 in total facing off at each other. There was a verbal altercation which then escalated into fighting. You were one of those youths. (Affray – Charge 2 on the second indictment).

8Members of the public were seen to flee the area where the fighting occurred.

Police were deployed, who had to use capsicum spray to try to stop the fighting.

9The fighting continued in other parts of the CBD near to Federation Square, again, forcing members of the public to flee. Much of the initial incident was captured by CCTV footage and photographs taken by journalists.

10The prosecution does not allege that you were involved in any other riotous behaviour after the initial fighting between the two groups of youths.

3 April 2016

11On 3 April 2016, you and two of your co-offenders were at the Melbourne Central Shopping Centre in the CBD.

12You were asked to leave level 4 of the Hoyts Cinema Complex. You refused to leave and police were called. You and your co-offenders were placed under arrest. (Wilfully trespass in a public place – Charge 4 of the second summary offences).

13You and your co-offenders were later seen loitering near the escalators on the lower ground level of the Melbourne Central Shopping Centre near the Myki barriers to the railway station. You were asked to leave. You refused to leave and police were called again.  You were placed under arrest.

14The police placed you and your co-offenders in the rear of a police divisional van. You were driven to the Collingwood Railway Station. Despite being asked to get out of the back of the divisional van, you and your co-offenders refused. Instead you behaved in an aggressive manner, holding up your middle finger to the police. Eventually, you and your co-offenders got out of the back of the divisional van.

15As the police drove off in the divisional van and stopped at a red traffic light, you and your co-offenders ran up to the divisional van and began kicking it repeatedly, causing damage to it.  (Criminal damage – Charge 3 of the second

indictment).1

16At the time of these offences you were on bail. Your presence in the CBD and the commission of an indictable offence whilst on bail were in breach of your bail conditions. (Breach of bail – Charges 5 and 6 of the second summary offences).

23 April 2016

17I sentenced one of your co-offenders, Bill Tang, on 9 November 2016.2 He pleaded guilty to a charge of aggravated burglary which occurred on 23 April 2016. I propose to repeat the summary I made of what occurred on that date.

18On 23 April 2016, you were in the company of Bill Tang, who was 18, “EA”, who was 16, “JY”, who was 16, “WW”, who was 17, and “KD”, who was 16, when you found your way to a house at Brighton East.

19The adult male and female occupants (husband and wife) of the house in Brighton East were asleep, as were their two children. The male occupant heard several loud bangs at about 3.00am. The adult male and female occupants were woken by these loud bangs. The male occupant went downstairs to investigate the cause of the noise. He saw three young African males wearing hoodies. They were holding beach umbrella poles which they had taken from the side of the house. (Aggravated burglary – Charge 1 on the first indictment).

20A fight broke out between the adult male and the intruders. The adult male was screaming at the intruders to get out of his house. Blows were exchanged. The adult male was swinging his fists at the intruders. One of the intruders struck him to his shoulder with an umbrella pole. The intruders then left the house and were joined by other males, and those other males were probably you and Tang.

1On 29 November 2016 Judge Misso made an order for compensation totalling $204.62 in relation to the charge of criminal damage, charge 3 on the second indictment.

2       DPP v Tang [2016] 1631

21The intruders, and perhaps you and Tang as well, took rocks from the garden outside the house and began throwing them at the adult male. He continued swinging his fists at all of you. (Recklessly causing injury – Charge 2 on the first indictment).

22The adult female was on the telephone to the police while this altercation was taking place. The police arrived at about 3.13am. The intruders and the other males fled in different directions. The adult male saw his garage door open and one of the intruders driving his BMW X5 down the driveway. (Theft – Charge 3 on the first indictment). The adult male attempted to open the driver’s side door. He was dragged along as the car sped off. He suffered injuries to his shoulder, elbows, left hand, thighs, knees and feet as a result of being dragged along as the car sped off.

23The prosecution does not allege that you entered the house. You have been charged with these offences because you were complicit or acting in concert with the intruders who entered the house, assaulted the adult male, and stole his car. The prosecution also does not allege that Tang entered the house, so it must be that it was your co-offenders who entered the house, or at least a number of them.

24You were on bail at the time of the aggravated burglary. (Breach of bail – Charge 19 of the first summary offences).

25On the same night, the following occurred. Seven students of Chinese origin were asleep in a house in Ormond when six men entered the house at about 6.00am. You were one of those men. One of your co-offenders was armed with a hammer. (Aggravated burglary – Charge 4 on the first indictment].

26“ZZ” and “HJ” were asleep in a room at the house. Three offenders entered their room and turned the lights on and off. One of the offenders struck “ZZ” on the legs with the hammer and punched him to the face and body. The offender

holding the hammer demanded that “ZZ” hand over his iPhone, provide the

password and change the phone setup to English.  (Assault – Charge 8 of the first summary offences).

27While this occurred, “HJ” woke up. A demand was also made of him for his iPhone, password and to change the phone setup to English. A demand was made of both “ZZ” and “HJ” for their car keys.

28The male armed with the hammer returned to their bedroom and struck “HJ” on the legs with the hammer, and then took a leather belt from a cupboard and began whipping both “ZZ” and “HJ”. (Assault – Charge 10 of the first summary offences).

29Three offenders entered the room occupied by “WF”. The offender armed with the hammer struck “WF” with the hammer, and with a closed fist, several times to the left side of his face, and also kicked him. Another male offender demanded “WF” hand over his phone, put in the PIN number and turn off the location setting. “WF” was then hit in the face again. He suffered bruising to his left cheek and a cut lip. (Assault – Charge 12 of the first summary offences).

30Three offenders entered the room occupied by “PD”. One of the males was holding a hammer. One of the offenders demanded that “PD” hand over his iPhone and provide the password. “PD” was unable to give his password. One of the offenders punched “PD” in the face and took the keys to his BMW car. (Assault – Charge 14 of the first summary offences).

31Two offenders entered the room occupied by “DZ”. One offender demanded that he provide his iPhone password.  The offenders then left in a hurry.

32The iPhones belonging to each of the five occupants of the house were stolen, as were other items which were set out in Schedule A attached to the first indictment. (Theft – Charge 5 of the first indictment]. The BMW car belonging to “PD” was stolen. (Theft – Charge 6 on the first indictment]. The Honda CRV car belonging to “ZZ” was stolen.  (Theft – Charge 7 on the first indictment).

33On the same day, you were arrested by police. A search of you revealed that you had $500 in cash in your wallet. (Negligently deal with the proceeds of crime – Charge 8 on the first indictment).

34Your co-offenders were also arrested. Much of the property that was stolen from the house in Ormond was in the possession of your co-offenders. “PD”'s BMW has not been recovered.

35The prosecution does not allege that you assaulted any of the occupants of the house at Ormond by striking or punching any of the occupants or making threats to any of the occupants.

36In relation to the theft of the Ford Focus car, your counsel submitted that you were not involved in the theft of the car. Your role was limited to being a passenger in a car which you knew was stolen. When you were arrested you made full admissions, and you entered a plea of guilty at the earliest opportunity.

37In relation to the events at Moomba resulting in you being charged with affray, your counsel submitted that you had played in a basketball tournament that day. You went home, and then went into the CBD not intending to become involved in any confrontational activity.

38You met your cousin, who was a member of a group of youths. He had suffered some sort of injury, presumably due to a confrontation with another group of youths. You became caught up in what was described as the “emotions” of the moment, with the result that you were part of a group of youths who were involved in fighting. You left when things died down and you went home.

39The Prosecution Opening refers to youths who were present in the CBD being armed with swords, machetes, baseball bats, knives, knuckledusters and hammers. The prosecution does not allege that you were armed with any weapons.

40In relation to the events which occurred at the Melbourne Central Shopping Centre, your counsel submitted that you became “cross” when you were asked to leave, because you felt that there was some racial discrimination at work on the part of those who asked you to leave. You could not understand why you were being asked to leave, and you remained “cross” from the time that event occurred until you were dropped off at the Collingwood Railway Station, and then committed the criminal damage to the police car.

41In relation to your breaches of bail, your counsel submitted that you were simply not thinking when you went into the CBD in breach of a curfew and a non- attendance condition of your bail. The other two breaches of bail occurred when you were engaged in offending conduct.

42In relation to the aggravated burglary of the house in Brighton East, you did not enter the house but likely remained outside with Tang, and maybe others. In relation to the aggravated burglary which was committed shortly thereafter of the house in Ormond, you entered the house, but you were not armed.

43The prosecution does not allege that your involvement in the offending was any greater than referred to by your counsel.

Your personal circumstances

44I will now turn to your personal circumstances. You were born in 1998 in Kenya.

You are now nineteen years of age. You arrived in Australia in 2005, when you were seven years of age, with your mother, father and siblings. You are the second eldest of seven children ranging in ages from one to twenty-one years.

45Your father is a security officer. Your mother is a childcare worker. Your primary school and secondary school years were unremarkable. You left your secondary school after completing Year 10. You have never worked.

46You were examined by Mr Crewdson, clinical and forensic psychologist, on 24 October 2016 at Port Phillip Prison. The history of your background recorded by him was emphasised by your counsel in her submissions. There are aspects

of that history which I will now refer to.

47You were probably exposed to distressing experiences in South Sudan because of the raging armed conflict that has engulfed that part of the world for so many years.

48You commenced using cannabis when you were thirteen or fourteen years of age. You used methamphetamine on a few occasions when you were about fourteen years of age, and that usage escalated when you were seventeen to eighteen years of age. You used methamphetamine prior to committing the aggravated burglaries and other associated offences.

49Your counsel submitted that your offending conduct was a product of disengagement from your family and becoming involved with a peer group who became your co-offenders.

50Your counsel also submitted that I should pay regard to the opinion of Mr Crewdson, who concluded that you have symptoms consistent with an Adjustment Disorder, probably in combination with your drug use.

51Mr Crewdson described you as being vulnerable and brittle. That was a view he formed because of your reliance on your social network and your use of drugs. I am not sure I understand much about your psychological or psychiatric state. That is a conclusion I have reached based upon what I perceive was a difficulty encountered by Mr Crewdson in gaining an understanding of you in his attempt to provide a helpful opinion for my use in sentencing you.

52You appear to come from a good family. You appear to have two hardworking parents who are committed to raising a large family. It is clear to me that your parents are troubled by your offending conduct, as is your community. Pastor Yoa of the All Nations Presbyterian Church provided a reference in which he expressed the surprise of the congregation about your level of offending conduct.     He,  and  no  doubt  your  parents  and  other  members  of  the

congregation, consider you to be a decent young man, although your offending conduct paints a very different picture of you.

53Your counsel submitted that most of your offending conduct occurred on weekends when you were at something of a loose end. Whilst it might have occurred coincidentally on weekends, it is hardly an explanation for why you engaged in what is very serious antisocial and very serious criminal conduct, and I am particularly referring to the affray and the aggravated burglaries.

The sentence

54At the outset your counsel submitted that you should be detained in a youth justice facility. Alternatively, that if you are to be sentenced to a term of imprisonment, that it should be combined with a community correction order.

55You have a limited criminal history which you have admitted to. You were dealt with in the Magistrates’ Court on 4 April 2016 for contravention of a conduct condition of bail. It is relevant to your subsequent breaches of bail.

56I will now make some general observations about the gravity of your offending before turning to the relevant sentencing principles that apply to the sentence I must impose on you.

57On 13 February 2016, you had no hesitation getting into a car when you must have known it was stolen. You were on bail at the time, and you must have known that getting into that stolen car was a breach of your bail. It is obvious that you did not care, because you took no steps to get out of the car when you formed the belief that it was stolen. You were quite happy to go along for the ride, literally, despite the knowledge you must have had that you were engaging in offending conduct. That attitude is further demonstrated by your subsequent offending conduct.

58I do not accept that you simply wandered into the CBD to join in some fun with friends during the Moomba celebrations. You knowingly joined a group when you must have known that there were other groups assembling and there was

likely to be trouble. Again, you were happy to go along with what was happening and what subsequently developed. You put members of the public in fear and in danger.

59On 3 April 2016, you could have purchased a ticket to go to the cinema if that is what you and your friends wanted to do. I see nothing wrong with you being asked to move on. All you had to do on the two occasions when you were asked to move along, was to do just that. Instead, you became deliberately difficult, which led to you engaging in offending conduct. When the police removed you and took you to the Collingwood Railway Station, all you had to do was go home, but instead, you decided to take the police on by refusing to get out of the divisional van, and then engaging in the most appalling conduct of chasing the divisional van and kicking it.

60Aggravated burglaries have been described by our senior courts as a particularly nasty form of criminal conduct, where it involves multiple offenders carrying weapons intending to rob and injure victims. The first aggravated burglary had some of those features, and the second aggravated burglary had all of those features.

61The two aggravated burglaries at Brighton East, and later at Ormond, were very serious offending. They were both home invasions. Whilst you did not enter the home at Brighton East, your co-offenders certainly did, with your full knowledge of what they were going to do. You were happy to go along with what they did in invading that home and subsequently, stealing a car belonging to the occupants of that home.

62The second aggravated burglary which you engaged in on the same night was much worse. You and your co-offenders entered that home. One of your co- offenders was armed. You and your co-offenders deliberately confronted the sleeping occupants of that home and assaulted them. You knew that one of your co-offenders was armed with a hammer. You must have known that it was

to be used to confront the occupants of the home, and not only was it used but a number of occupants were struck by the blows by one or more of your co- offenders to subdue them in order to steal from them.

63You and your co-offenders stole items from the occupants of that home, and two cars. I do not have any doubt that you and your co-offenders had that in mind when you invaded that home. One of the two cars that you and your co- offenders stole has not been recovered.

64The occupants of the homes at Brighton East and Ormond were terrified by what you and your co-offenders did. Let me revisit the Victim Impact Statements of the male and female occupants of that home which I summarised when I sentenced Tang.

65You were present in Court when the Victim Impact Statements were read. The statements of the male and female occupants of the house in Brighton East described a terrifying episode of the invasion of their home in the early hours of the morning. The male occupant had to fight off the intruders. The female occupant and one of their children were exposed to the injuries he suffered in fighting off the intruders and attempting to prevent the theft of his car.

66To say that their life has been changed by this terrifying experience is an understatement. They no longer feel safe in their home. They react very differently to noises and to circumstances which previously they simply took in their stride. They have taken measures to make their home and their daily lives safer. Emotionally, their lives have changed very significantly.

67Two of the occupants of the home at Ormond made Victim Impact Statements. “WF” was in fear during the aggravated burglary. You and your co-offenders stole his mobile phone, laptop, computer and wallet. His laptop contained a final essay which he was unable to submit, with the result that he obtained no marks which then had a detrimental influence on his studies to the extent that

he failed a subject.  He suffers nightmares, psychological problems and has a

fear of people who resemble you and your co-offenders.

68“PD” suffered injuries as a result of being hit with the hammer. You and your co-offenders stole his TV, wallet, phone, laptop computer, money, clothes, shoes, a bag and his car. He was unable to finish work relevant to his studies because the documents he needed were on his laptop computer. He is afraid that you and your co-offenders will return. He is unable to sleep because of that thought. His parents were so worried that they purchased airline tickets, presumably to come and see him. He has otherwise been put to expense to cover the loss of the items which you and your co-offenders stole.

69The summaries I have made of the Victim Impact Statements probably do not do justice to the dramatic impact which the aggravated burglaries have had on each of these individuals.

Sentencing purposes

70Your conduct between 13 February 2016 and 23 April 2016 makes each of these sentencing purposes very relevant – specific deterrence, general deterrence, denunciation, just punishment and protection of the community, all of which figure prominently.

71Your counsel emphasised that the sentence I must impose on you must pay proper regard to the following:

·Your youth is a factor which must weigh heavily as a mitigating factor.

·Statements by our superior courts which emphasise that rehabilitation of an offender of your age is usually of more importance than general deterrence.

·That imprisonment in an adult prison of someone of your age may potentially cause damage to you for which the community may pay dearly in the long term, and that preference should be given to detention in a Youth Justice Centre which should only be displaced if there are powerful

factors in favour of a more punitive approach.

·Although you have now been in custody in an adult prison since 23 April 2016, you have otherwise not been sentenced to a term of imprisonment in an adult prison.

·I accept that you have expressed remorse.

·Your prospects of rehabilitation, which I think are rather more guarded, but I hope that someone of your age is not irredeemable.

·The admissions you made after you were arrested and the early pleas of guilty which have the utilitarian effect of saving the victims the trauma of a trial, and the State the cost of trials.

72I now return to the sentence I imposed on Tang for the aggravated burglary on the home at Brighton East, recklessly causing injury and the theft of a BMW car. The principle of parity requires me to consider whether I should impose the same sentence of two years for the aggravated burglary, six months for the recklessly cause injury and six months for the theft of the BMW car. Considering that you and Tang were involved in the same level of offending, I will impose a similar sentence for those offences. The effective sentence I imposed on him after ordering cumulation, was two years and eight months.

73I have had you assessed for a Youth Justice Centre Order and a Community Correction Order. You are considered unsuitable for a Youth Justice Centre Order for the reasons that are set out in a report dated 25 January 2017. You have been assessed as being suitable for a Community Correction Order. I do not consider that either alternative addresses the objective seriousness of your overall offending.

74Sentencing you is a very difficult exercise because of the breadth of your offending conduct over a relatively short period of time.  The nature of your

offending has elements of violence, indifference to other people’s right to be

safe in their homes and indifference to orderly conduct and respect for authority.

75I have moderated the sentence I will impose on you because of your age. The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.

76I would now ask you to stand please.

77On Charge 1 on the second indictment – theft of the black Ford Focus sedan – you are convicted and sentenced to fourteen (14) days’ imprisonment to be served concurrently with the base sentence.

78On Charge 2 of the second summary offences – breach of bail – you are convicted and sentenced to one (1) month’s imprisonment to be served cumulatively with the base sentence.

79On Charge 2 on the second indictment – affray – you are convicted and sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the base sentence.

80On Charge 4 of the second summary offences – wilfully trespass – and Charge

3 on the second indictment – criminal damage – you are convicted and sentenced to an aggregate term of imprisonment of fourteen (14) days to be served concurrently with the base sentence.

81On Charge 5 of the second summary offences – breach of bail – you are convicted and sentenced to one (1) month’s imprisonment to be served cumulatively with the base sentence.

82On Charge 6 of the second summary offences – breach of bail – you are convicted and sentenced to one (1) month’s imprisonment to be served cumulatively with the base sentence.

83On Charge 1 on the first indictment – aggravated burglary at Brighton East – you are convicted and sentenced to two (2) years’ imprisonment with twelve

(12) months to be served cumulatively with the base sentence.

84On Charge 2 on the first indictment – recklessly cause injury – you are convicted and sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the base sentence.

85On Charge 3 on the first indictment – theft of the BMW X5 car – you are convicted and sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the base sentence.

86On Charge 19 of the first summary offences – breach of bail – you are convicted and sentenced to one (1) month’s imprisonment to be served cumulatively with the base sentence.

87On Charge 4 on the first indictment – aggravated burglary at Ormond – you are convicted and sentenced to three (3) years’ imprisonment. This is the base sentence.

88On Charges 8, 10, 12 and 14 on the first summary offences – assaults at Ormond – you are convicted and sentenced to an aggregate term of imprisonment of three (3) months to be served concurrently with the base sentence.

89On Charge 5 on the first indictment – theft of various items – you are convicted and sentenced to three (3) months’ imprisonment to be served concurrently with the base sentence.

90On Charge 6 on the first indictment – theft of the BMW car – you are convicted and sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the base sentence.

91On Charge 7 on the first indictment – theft of the Honda car – you are convicted and sentenced to six (6) months’ imprisonment with three (3) months to be served cumulatively with the base sentence.

92On Charge 8 on the first indictment – negligently deal with proceeds of crime – you are convicted and sentenced to one (1) month’s imprisonment to be served concurrently with the base sentence.

93This is a total effective sentence of five years and seven months and I will fix a minimum sentence of three years before you will become eligible for parole.

94I will order that the time you have spent in pre-sentence custody of 332 days, not including today, be reckoned as time served under the sentence. This will be noted in the records of the Court.

95You are disqualified from obtaining any licence to drive a motorcar for a period of 24 months. The period of disqualification is to commence from today.

96I will make an order for the taking of a forensic sample pursuant to s464ZF(2) of the Crimes Act 1958 (Vic). I will make a disposal order sought by the prosecution. I will make a forfeiture order for the amount of $500 cash.

97Pursuant to s6AAA of the Crimes Act 1991 (Vic), if it had not been for your pleas of guilty, I would have sentenced you to seven-and-a-half years’ imprisonment with a minimum of four-and-a-half years before you would become eligible for parole. You may now be seated.

98Do you have the orders that you wish me to sign?

99MS BYE:  Your Honour, I believe that they were emailed to your associate.

100HIS HONOUR: It looks like I have them. Can I have the appearance sheet please?

101MS BYE: I have some if you don’t have them, Your Honour.

102HIS HONOUR: Ms Chaya, is that right?

103MS CHAYA: Yes, Your Honour.

104HIS HONOUR:  Do you have anything to say about these orders?

105MS CHAYA:  No, Your Honour. The ancillary orders, Your Honour?

106HIS HONOUR:  Ms Munster told me that there would be no objection to the making of these orders.

107MS CHAYA: No objection, that’s correct, Your Honour.

108HIS HONOUR: You may remove Mr Paulino, please.

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