Director of Public Prosecutions v Raux
[2025] VCC 675
•23 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01257
CR-21-01890
CR-24-01891
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN RAUX and RAWIRI TALANOA |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2025, 28 March 2025 | |
DATE OF SENTENCE: | 23 May 2025 | |
CASE MAY BE CITED AS: | DPP v Raux & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 675 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Home invasion – armed robbery – theft – Bugmy – childhood deprivation – mental health – Verdins – early plea of guilty – Category 2 offending – youthful offenders
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Muldrock v The Queen [2011] HCA 39; Bugmy v The Queen [2013] 249 CLR 571; Azzopardi v The Queen (2011) 35 VR 43; R v Verdins [2007] VSCA 102
Sentence: Mr Talanoa – 18 months' imprisonment and a community corrections order for a period of 24 months
Mr Raux – Total effective sentence of 19 months’ imprisonment and a community corrections order for a period of 24 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Gabrielle Fitzgibbon | Office of Public Prosecutions |
| For Accused Mr Talanoa For Accused Mr Raux | Mr Thibaut Clamart Ms Olivia Thompson | Slink & Keating Solicitors Bowler & Co |
HER HONOUR:
1. Damian Raux and Rawiri Talanoa on 12 March 2025 you each were arraigned and pleaded guilty on Indictment C2400284 to one charge of home invasion, one charge of armed robbery and one charge of theft.
Circumstances of the offending
2. On the night of 28-29 April 2024, Ms Saihimaja locked the front door of her house and turned on the front light, as she always did. At about 12.30 am, you, Mr Raux and Mr Talanoa arrived at the premises. Mr Talanoa, you forced entry by kicking the front door in.
3. This noise woke Sushwanth Madireddy in the downstairs bedroom. Santosh Madireddy and Ms Saihimaja were awake in bed upstairs and heard the noise. In the other upstairs bedroom, Mr Gundam was also woken.
4.
You, Mr Raux and Mr Talanoa, opened the door to Sushwanth Madireddy’s downstairs bedroom. You were each wearing a black mask or face covering, dressed in black clothing and were armed with a black rod. You, Mr Raux and
Mr Talanoa, said 'give me the car keys'. Sushwanth Madireddy replied, 'I don’t have the car keys in my room, they’re upstairs, I’ll grab the keys'. The men said, 'come with us'.
5. You both rounded Sushwanth Madireddy with the rods and told him to go up the stairs. You accompanied him up the stairs to Santosh Madireddy’s bedroom.
6. The door was locked and Sushwanth Madireddy shouted to his brother to open the door and get the car keys. You, Mr Raux and Mr Talanoa, hit the door with your hands and kicked it with your feet. The door was opened and Santosh Madireddy and Ms Saihamaja saw Sushwanth Madireddy with one of you standing behind him wearing a black hoodie-type jacket, a black kerchief or cloth down around his lower face, a black cap, black gloves holding a black steel rod.
7. Santosh Madireddy also saw the other person, wearing a red and black hoodie and a kerchief over his whole face. This one of you, had his back to Santosh Madireddy.
8. One of you that was dressed in all black asked for 'laptops, phones, car keys, anything' and said, 'don’t tell or call anyone.' Ms Saihamaja threw her iPhone 13 mini.
9. Santosh Madireddy and Ms Saihamaja told you, Mr Raux and Mr Talanoa, that they did not have any car keys. Ms Saihamaja was yelling out to her cousin to get the car keys.
10. You, Mr Raux and Mr Talanoa, then forced entry into Mr Gundam and Mr Kotha’s bedroom, despite Mr Kotha attempting to hold the door closed. Mr Gundam saw one you standing at the door wearing a black mask and black clothes and another man standing at the top of the stairs, also wearing a black mask and black clothes. Both of you were holding black rods and had gloves on.
11.
One of you was standing at the door and yelled at Mr Gundam to give you his phone and keys. You had the rod raised at chest height and Mr Gundam feared that he was going to be hit with the rod. One of you then grabbed the keys to
Mr Kotha’s Mercedes and Mr Gundam’s Hyundai from the desk near the bedroom door and you both ran back down the stairs.
12. You, Mr Raux and Mr Talanoa, both left the vicinity in Mr Kotha’s Mercedes.
13. As you left you told Mr Kotha that you would kill him if he moved. You have not been charged for making a threat to kill and you do not fall to be sentenced for this utterance. The prosecution relies on this evidence to provide context and to explain the impact upon the victim Mr Kotha.
14. Mr Kotha called Triple 0 at 12.32 am after you had both left. He then went outside and saw that his Mercedes was gone from the driveway.
15. Police attended at the address at about 12.35 am. Mr Kotha advised that the Mercedes was connected to the 'Mercedes me' application which allowed for GPS live tracking of the vehicle. The log-in details and particulars were forwarded to the Victoria Police Monitoring and Assessment Centre (VPMAC).
16. The Mercedes was observed by a Narre Warren police unit on Gladstone Road, Noble Park North. It was travelling at a significant rate of speed, eastbound on Power Road in Dandenong. Police helicopter POLAIR observed the Mercedes stop on Aldridge Street, Endeavour Hills, and observed you, Mr Talanoa, exit the vehicle from the driver side and you, Mr Raux, exit the vehicle from the passenger side. You, Mr Raux, ran into the front yard of 7 Cardigan Street, discarding a pair of black gloves in the process, and you, Mr Talanoa, ran into the front yard of 5 Cardigan Street.
17. At about 1.20 am, police found you, Mr Talanoa, standing behind a side fence in the rear yard of the property. You were wearing a black Nike zip-up hooded jumper with red and orange strips across the arm sleeves, black trackpants and Nike TN sneakers.
18. At about the same time other police found you, Mr Raux, lying under a white Ford Everest in the driveway of 7 Cardigan Street. You were wearing a Champion branded zip bomber jacket with a grey Dickies shirt around your neck, black 'North Face' track pants and Nike Air Max sneakers.
19. You were both arrested and conveyed to Dandenong police station where you were interviewed. Mr Raux, you made a 'no comment' interview, other than stating that you had been in the Clayton area at the time seeing family members.
20. Mr Talanoa, you made multiple statements, including that you entered the house by yourself and drove away by yourself in the stolen Mercedes to Dandenong. You made no comment regarding where you went after you drove away from the house or how you came to be in police custody. When asked about Mr Raux’s presence in the car with you, you made no comment.
Nature and gravity of the offending
21. Home invasion and armed robbery committed in company are inherently very serious offences. Not only are they each punishable by a maximum term of imprisonment of 25 years but parliament has designated them as Category 2 offences. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a community correction order), unless at least one of the circumstances set out in subsections (a) to (e) can be established.[1] The consequence of this categorisation reflects parliament's very real concern that the sanctity of a person's home is to be protected from criminal interference.
[1] Sentencing Act 1991 (Vic) s 5(2H).
22. In your case, the offence of home invasion is made out because you acted in company with another person, and you were both armed with steel rods.
23.
The particular circumstances of your offending represent a serious example of offending of this nature. You each wore face coverings and black gloves demonstrating a degree of planning and preparation to avoid identification. You were each armed with a black rod and you both retained possession of these weapons throughout the incident. These rods were used to instil fear in each of the five victims and secure their compliance. At one point, one of you raised your rod to chest height while demanding Mr Gundam’s phone and keys and this caused
Mr Gundam to fear he would be struck.
24. The two of you acted together in deliberately entering the victims' home under the cover of dark in the early hours of the morning at a time they were likely to be present. You moved to different rooms within the house and although your presence was brief it was confrontational. You invaded the sanctity of the victims' home and robbed them of items that enabled you to steal a Mercedes motor vehicle.
25. I accept that your offending was of relatively short duration, did not involve actual physical violence, and that you both left the premises immediately after obtaining the car keys. In the circumstances, your offending lacks some aggravating features which are commonly associated with offending of this type. Further, the offences of home invasion and armed robbery have occurred in very close proximity to each other and are almost part of the same transaction.
26. Your offending as a whole demonstrates a brazen, violent and outrageous disregard for the safety and security of others. I find this to be a serious example, as I have said, of offending of this nature. In addition, Mr Raux, you were on a community correction order imposed by this court for very serious offending. You are in contravention of this order and this contravention is to be dealt with as part of this sentencing exercise.
27. No victim impact statements were filed, but I can infer given the invasion into their home by two men wielding weapons, that the five victims were in fear and have been traumatised by this event.
28.
So, Mr Raux, I am going to deal with matters personal to you first, and then
Mr Talanoa I will move to yours.
Personal circumstances - Damian Raux
29. Mr Raux, you are now 23 years old. Your parents immigrated from Sri Lanka to Australia, and you were born and raised in the south-east suburbs of Melbourne. You have an older and a younger brother, as well as an older and a younger sister. You are close to your brothers and sisters, in particular your brother Timothy, who is present in court today, and your sister Lianna, who was present in court on the last occasion. At times you have said that your childhood and family life were positive, without violence, neglect or substance abuse within your home.
30. However, this is different to DFFH departmental files that say you repeatedly experienced early and repeated exposure to violence and disrupted living situations.[2] It is also different to what you told Dr Bonnie Albrecht who was the Forensicare psychologist who saw you on the last occasion. You told her that your childhood was very difficult. You said that your father was violent towards your mother, your brothers and sisters and yourself, and described times you would actively come between your parents in order to try and stop your father assaulting your mother. Because of this violence your mother would often remove you and your brothers and sisters from the family home, and this started when you were six years old. You found this very difficult and confusing. You also said that your father would prevent anyone from seeking help. These home difficulties coloured all of your childhood and created an enduring anger within you, as well as an aggression towards both your parents and the world at large.
[2] Disability Overview Report of Shirley Hou dated, 26 October, 2022 page 2.
31. During this time, you attended St Peter’s Primary School in Clayton and later attended Mazenod College in Mulgrave. You did not do well at school. This was probably because of all you had going on at home and the fact that you had an intellectual disability which meant you had trouble learning and autism which caused social problems. You did enjoy sports and enjoyed some friendships at school. You were largely unhappy, you struggled academically, were bored, distracted by your home life, suffered bullying and had regular fights with your peers. Between 12 and 14 years of age you experienced frequent thoughts of suicide.
32. You left school early. You attempted a TAFE course but could not cope with this and left a short time later. Previous to your most recent time in the community, you had not had paid employment. You had some work in the prison laundry and have worked as a billet at other times.
33. When you were only 15 years old you were 'kicked out' of home because of an argument with your father. You found this confusing; one, because you were made to leave, and two, because you thought no-one cared that you had been kicked out. You have not had contact with your parents since that time. As a result, you were homeless, and this has pretty much stayed the same up to the time of the offending before the court. You have spent time in a variety of different houses, and you have also spent time sleeping in parks in the Melbourne and Dandenong area. You have in the past asked for help with housing and had support from services such as WAYSS which I understand is located in Dandenong.
34. In terms of substance use, you began drinking alcohol when you were very young, and you used cannabis daily from around the time you were 16 years old. You have also had problems with ice and more recently cocaine. You were abusing these types of substances at the time you offended.
35. You remain a single man and have no dependent children. Since mid-2020, as best I can tell, you have been the recipient of NDIS services.
36. In the past you have been in trouble with police and have appeared in the Children’s Court and Magistrates Court several times. You have committed offences including theft, deception, assault, robbery, affray, possess controlled weapon and breach of bail. You have spent some time in custody both in youth detention and adult gaol. You have also been sentenced to probation and good behaviour bonds.
37. In December 2022, this court sentenced you to two years' imprisonment for two serious offences of aggravated carjacking. 684 days of pre-sentence detention were reckoned as served. At this time, for other offences of attempted aggravated carjacking and unlawful assault, you were placed on a two-year community correction order with conditions of supervision, a Justice Plan and judicial monitoring. In mid-January 2023 you were released from custody onto the CCO. This CCO was operational at the time of your current offending and the contravention hearing is a matter I will deal with in due course.
38.
The plan for your release included appointments with Disability Justice, Corrections, NDIS providers, one of whom included Ms Sarah Markham.
Ms Markham began working with you whilst you were in custody in September 2022. Ms Markham is a highly skilled and experienced behaviour support specialist. Tendered during your last hearing was her comprehensive 75-page functional assessment and behaviour support plan. Upon your release you continued working with Ms Markham who undertook a variety of different programs with you, including AOD, alcohol and other drugs, in the form of the SMART program and a forensic disability program. You attended court for judicial monitoring, travelling into the court to attend in person. After a shaky start you settled into the requirements of the CCO. Your contact with Corrections for supervision was hit and miss, however, when you did attend you engaged well. Your contact with your Disability Justice co-ordinator improved over time. At the last judicial monitoring hearing Disability Justice noted a significant improvement in phone contact from you, with you consistently returning missed calls and you attending a physical meeting.
39. Initially, you were supported by Reconnect and were released to emergency motel type accommodation. You were successful in gaining share accommodation and despite changes to this accommodation you generally managed well. You expressed interest in dealing with your outstanding fines and you were successful in your application for disability support payments. Also, during this time in the community you were successful in gaining full time employment on two separate occasions. You were able to maintain your employment for a period of months and benefitted from the routine and financial reward. I witnessed your pride in this achievement firsthand. In addition, you undertook pro-social activities such as attendance at gym and boxing with a coach.
40. Importantly, you engaged well with Ms Markham. To her observation and on your report, you were abstinent from drugs for considerable periods of time. You completed the SMART AOD program and there were plans for you to move onto other programs. Unfortunately, these plans were interrupted by your offending and remand. It was apparent to this court that you have developed a valuable therapeutic relationship with Ms Markham, who on occasion attended the judicial monitoring hearings.
41. You have been back in prison now since 29 April 2024. Both Disability Justice and Ms Markham have consistently visited you in custody. You have engaged well with them and the therapeutic relationship has been maintained. The intensity and value of their work is limited given the prison environment. You have continued to experience difficulties in custody and have often found yourself in solitary confinement and management units. You have been in a management unit from 24 September until 3 October 2024 and then again from 27 November 2024 until now. Recently, you have been on observations and were confined to your cell for three days straight.
Mental Health
42. During your several plea hearings, I have received numerous reports from a variety of mental health professionals who have assessed and worked with you. In 2016, psychologist Cath Hughes indicated that your level of functioning fell within the borderline intellectual disability range. In a previous psychological assessment from 2008 your IQ fell within the first percentile. Your verbal comprehension, spatial skills, fluid reasoning and speed of information processing ranged from borderline to extremely low. Further, you displayed significant weaknesses in the areas of abstract reasoning, spatial processing and variable speed of information processing.
43. In 2014, a psychological assessment also conducted by Ms Hughes found that you met the criteria for autism spectrum disorder. You showed deficits in social language, impaired social interaction and restricted interests. You have also had problems with learning, intellectual functioning, impaired planning and organisation skills, limited social knowledge, limited problem-solving skills, poor impulse control and a lack of appreciation of the impact of your behaviour on others. In addition, you have been described as vulnerable to social influence. In her report dated 18 July 2022, Dr Bonnie Albrecht from Forensicare also considered that you endorsed indicators of ADHD.
44. Ms Cathy Leigh-Smith was your treating psychologist from 2020 until late 2022. Ms Leigh-Smith wrote two short reports and also gave evidence on your behalf at your previous plea hearing. In her view, you have experienced alienation and marginalisation for most of your life, you have impaired planning and organisational skills which make it difficult for you to create structure and routine. Ms Leigh-Smith was also of the opinion that you have a very rigid and inflexible thinking style and also you struggle to accurately interpret the intentions and behaviours of others, which results in you being vulnerable to their influence. She held concerns that you are at risk of becoming institutionalised and the longer you stay in custody the more difficult you will find it to fit back into the community.
45. A further report was tendered from Mr Warren Simmons. Mr Simmons did not appear to have access to the reports from Disability Justice and Ms Markham. He appeared to be unaware of the progress you had made in the community during 2023 and early 2024. Notwithstanding this he confirmed that you continue to experience considerable difficulties in custody as a result of your attempt to stand over others which has resulted in you being returned to solitary confinement and confinement in management units.
46. The court also received a MHARS report from senior mental health clinician Ian Berrisford. Mr Berrisford noted, as have other mental health professionals, that you are comfortable in prison. However, he also noted that you remain in management units, locked down for 23 to 24 hours per day, which, in his view, points to your poor judgement and difficulty regulating your impulses and capabilities due to your intellectual impairment.
Category 2 offending
47. As I have previously mentioned, the charges of home invasion and armed robbery when committed in a company are Category 2 offences. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a community correction order), unless at least one of the circumstances set out in sub-ss(a) to (e) can be established.[3]
[3] Ibid s 5(2H).
48. Your counsel submitted that the factors in 5(2H)(c) apply in your case.[4] That is your cognitive impairment is linked to your offending and substantially reduces your moral culpability, and further, you have impaired mental functioning that would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
[4] Ibid s 5(2H)(c).
49. Ms Thompson submitted that your experience of imprisonment is significantly more burdensome than other prisoners. Your limited social contact whilst in the management unit, combined with extreme deficits in your functioning, make you very vulnerable in the custodial setting. Mr Simmons opined of your custodial experience:
He is currently in an environment where he felt that he could assert himself as some sort of powerful figure in the correctional system where he has been aggressive and violent but only resulted in him ending in a management unit. He appeared to be unable to recognise that his behaviour is problematic or that it was never going to achieve his stated aims.
50. Counsel for the prosecution, Ms Fitzgibbons, submitted that Mr Simmons does not establish a necessary link between your diagnosis of an intellectual disorder, your autism spectrum disorder and your experience of custody. Mr Simmons, she submitted, does not provide any opinion on whether your actions in seeking to assert dominance by instigating assaults and fights which in turn land you in isolation, are connected to your impairment.
51. In my view, although there is some evidence that you appear to cope in custody, you have experienced harsh conditions, including long periods of social isolation. Your poor decision-making skills, impaired ability to make rational choices, vulnerability to negative peer influences and lack of appreciation of the wrongfulness or consequences of your actions are all enduring characteristics of your impaired mental functioning associated with ASD and intellectual disorder. In my view your tendency to 'assert yourself' in a custodial environment is likely the consequences of your impaired functioning.
52. In light of the evidence from Dr Bonnie Albrecht, who is a senior forensic psychologist with Forensicare, Cathy Leigh-Smith, psychologist, Matthew Staios, neuropsychologist, Disability Justice co-ordinator Shirley Hou, psychologist Warren Simmons, and MHARS senior mental health clinician, Ian Berrisford, I am satisfied on the balance of probabilities that pursuant to s5(2H)(c)(ii), that a special reason exists in your case.[5] I note I made a similar finding in relation to your previous matter. Mr Raux, I find that you have impaired mental functioning, that is an intellectual disability, diagnosis of autism spectrum disorder and other psychological vulnerabilities, that have resulted in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment. I consider that your experience of being contained in management units, the high risk of institutionalisation and the further entrenchment of antisocial and pro-criminal values, exemplify this risk.
[5]Ibid.
53. Having made this finding, I do not propose to go on to consider whether a special reason exists under s5(2H)(c)(i).[6] I will go on to consider the other sentencing considerations that apply in your case.
Application of Verdins Principles
[6] Ibid s 5(2H)(c)(i).
54. Your counsel Ms Thompson submitted that your disabilities and limited reasoning capacity significantly reduce the moral culpability for your offending. She submitted that whilst Ms Leigh-Smith’s comments do not relate specifically to the offending before the court, the static nature of your condition enable a finding that your intellectual disability and ASD are causally linked to the offending before the court.
55. Although you admitted to substance use at the time of the current offending,
Mr Simmons suggests the degree to which this is related to you being intoxicated with whatever substance at the time is unclear given there has been a history of aggressive behaviour commencing before you started substance use. Your deficits, Ms Thompson submitted, are the catalyst for you developing a substance use disorder, rather than the cause of your offending behaviour.56. Ms Fitzgibbon submitted that it is accepted that you suffer from impaired mental functioning in the form of an intellectual disability and there appears to be some limited connection between that impairment and your offending, so as to reduce your moral culpability. However, Ms Fitzgibbon referred to the report of
Mr Simmons and his opinion that your impairment and your drug use were joint contributing factors that make it difficult to disentangle their respective influences. As I understood Ms Fitzgibbon’s submissions, although there should be some material reduction in moral culpability as a result of your intellectual impairment, the evidence did not support a finding that would enliven s5(2H)(c)(i).[7] As I have indicated, given my findings pursuant to s5(2H)(c)(ii) I have not gone on to consider this section.[7] Ibid.
57. I accept that the test in Verdins[8] is less rigorous than the statutory test in 5(2H)(c)(i). I find on balance that Verdins has application in your case. That is, I find there is a nexus between the dual diagnosis of your intellectual disability, your ASD and your offending. I consider your intellectual disability is a permanent and enduring condition which resulted in a lack of capacity for you to reason as an ordinary person might as to the wrongfulness of your conduct.[9] As to the impact of substance use, I agree with the submissions of Ms Thompson and the opinion of Mr Simmons that your intellectual disability and aggressive behaviour exists independently of your drug use.
[8] R v Verdins [2007] VSCA 102.
[9]Muldrock v The Queen [2011] HCA 39 .
58. Accordingly, in my view, your moral culpability for your offending ought to be reduced. This in turn reduces the punishment that is just in all the circumstances and means denunciation is less relevant as a sentencing objective. Further, both general deterrence and specific deterrence should be somewhat moderated.
Application of Bugmy principles
59. I have previously found the principles of Bugmy applied in your case and are a significant mitigatory factor that I should take into account.[10] The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court's assessment of moral culpability for the offence itself, and also for the court's consideration of the weight to be given to your prior criminal history.
[10]Bugmy v The Queen [2013] 249 CLR 571.
60.
In your case, I accept your childhood involved significant deprivation as a result of the following factors: your early and repeated exposure to violence at the hands of your father; disrupted living situations when your mother would repeatedly remove herself and the children from the family home for safety, only for the violence to resume upon return; and being 'kicked out' of home at the age of
15 thereby being left to fend for yourself in circumstances where you have an intellectual disability and autism. I note this history was in part confirmed by the report of Shirley Hou in the disability overview report dated 26 October 2022.
Ms Hou confirmed that 'according to the departmental file, Mr Raux experienced early and repeated exposure to violence and disrupted living situations’.
61. Ms Albrecht in her report made the following relevant findings:
Mr Raux experienced early and repeated exposure to violence and disrupted living situations. He struggled to understand and cope with his father’s violence and often experienced ruminative thinking and distress related to his homelife. Early inattentiveness at school seems likely related to joint contributions of a trauma response which interferes with one’s thinking patterns and beliefs, physiological arousal and reactivity and emotional experience; a learning disorder and potential neurodevelopmental disorders interfering with his attention, behavioural regulation, social interactions and understanding. The school attempted to provide support, but Mr Raux struggled to navigate the additional distress prompted by the efforts. He sought to avoid such thoughts and feelings by avoiding school and channelling his anger towards others. Unfortunately, this precluded his cognitive and mental health needs being attended to in a consistent manner and fostered early development of violent behavioural templates, building on behavioural models of his father’s violence and reinforced by the fiscal benefits of robbing strangers, catharsis from anger and social recognition from his older brother, and later, antisocial peers.
The current offending occurred in the context of these background factors, in addition to more acute distress relating to a friendship breakdown, daily poly-substance use and reinforcing, fun, relationship with the co-offender. He held little care for the impact of his actions on the victims and his violence use following internal templates of his helpfulness to effect desired outcomes (i.e. cars).
62. Although the opinion of Dr Albrecht referred to your past offending, in my view, it continues to have relevance. I consider there is both a foundation and nexus between your experience of significant childhood deprivation and the current offending and as a result I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and therefore put your prior convictions into context.
63. Having made findings under both Bugmy and Verdins, I must say I have been careful not to double count the mitigation that flows and I have tried to moderate it between both sets of principles.
Youth
64. I consider that at the age of 23 you are still a youthful offender and as such the principles that generally apply to the sentencing of youthful offenders continue to have application in your case.
Prospects of rehabilitation
65. Counsel for the prosecution, Ms Fitzgibbon, submitted that the court should find your prospects of rehabilitation to be guarded. This submission is consistent with the opinion of Mr Simmons. Ms Fitzgibbon relied upon your relevant criminal history; previous non-compliance with community-based and treatment-focused orders, including Justice plan conditions; a demonstrated pattern of irregular and inconsistent engagement with support services when offered and the fact that you were subject to a community correction order at the time of this offending and your longstanding history of substance use.
66. Your counsel, Ms Thompson, submitted that you have expressed willingness to engage with rehabilitative services. Your Disability Justice co-ordinator, Ms Kamar Ibrahim, reported that you are committed to making positive changes upon your release from custody. You have maintained contact with Ms Ibrahim every fortnight whilst in custody and you have conveyed to Ms Ibrahim that you plan to avoid old friends, focus on positive influences, engage in treatment programs and maintain an active lifestyle through gym, sports and works, and you are aiming to stay away from crime. Additionally, you have maintained contact with Ms Markham on a regular basis in custody.
67. You agreed to participate in referrals to offence-specific treatment and alcohol and other drug counselling. You believe that engaging in offence-specific treatment and alcohol and other drug counselling treatment programs will equip you with tools necessary to understand the root causes of your actions and develop healthier coping mechanisms. Additionally, you are interested in attending mentoring classes to speak with someone who may have experienced similar challenges and who could provide guidance and support.
68. Ms Thompson submitted that you have significant supports both through the NDIS scheme and through Disability Justice. You are currently a recipient of an NDIS plan to provide you with intervention and ongoing support in the community. You continue to be supported by your care team with whom you have an ongoing therapeutic relationship, as well as your sister, Lianna Raux. You are also hopeful about reconnecting with your family which is a strong motivating factor for you.
69.
Your NDIS specialist support co-ordinator, Tayla Wright, has secured supported accommodation options for you. You have been granted funding for supported independent living for a 12-month period. This support is structured at a
one-to-three ratio with four hours of one-to-one support in inactive overnight support. Upon notification of your release date, suitable accommodation will be secured to assist your transition and support you in the community.
70. I consider that you have reasonable prospects for rehabilitation in light of the efforts you made in the community on the last occasion and your continued connection with your care team.
Contravention of community correction order
71. I have previously detailed your compliance with the community correction order imposed by this court. I must take this into account when determining the contravention. You largely complied with the order for 15 months, although as indicated your attendance at supervision with corrections was inconsistent. You completed AOD counselling as part of the Justice plan and engaged in forensic disability counselling with Ms Markham.
72. I consider the fact that you were on the CCO at the time of the current offending to be an aggravating feature.
Personal circumstances – Rawiri Talanoa
73. Mr Talanoa, you are now 21 years old. You were born in Australia to parents of Maori and Tongan descent. Your parents were not married and separated soon after you and your twin sister were born. You have three maternal half-siblings and five paternal half-siblings.
74. Your biological father passed away when you were 10 years old. Following your father’s death, you lost contact with your paternal grandparents and cousins who were involved in your life throughout your childhood. You felt abandoned by their sudden withdrawal from your life. Your biological father had a criminal history for serious violent offending such as armed robbery and accessory to murder. As a result, he had been incarcerated on multiple occasions, and it is apparent that your father had a difficult childhood and a significant drug addiction. During your infant years you attended gaol to visit your father.
75. You remained in the care of your mother and during your early years your mother had a significant opioid addiction. One of your younger sisters was born drug dependent. Your mother’s drug use resulted in the intervention from child protection. Despite your denials of conflict or violence during your childhood, the author of the Youth Justice pre-sentence report noted that Department of Justice and Community Safety file and case notes provide more insight. They indicate that there was prior involvement with child protection including six notifications between 2004 and 2019. Initial notifications were related to your mother’s opioid dependence and inability to care for her children which resulted in the family temporarily residing with their maternal grandmother. Later notifications related to inappropriate discipline from your stepfather and grandmother and the onset of your offending and absconding behaviour.
76. You described your childhood in relatively positive terms to psychologist Andrea McNeill, that is, you saw your stepfather, with whom your mother was in a relationship with since you were born, as your own father. Your mother and stepfather remain partnered and are supportive of you. You have a good relationship with your family.
77. Further, you described being raised by your stepfather and mother, you lived in a private rental, and you felt the family was financially secure with a stable home life. Your stepfather worked steadily as a builder, had no substance abuse or use issues, or violence or physical abuse. Your mother worked at a butcher until your younger half-sisters were born and she became a stay-at-home mum.
78. You had a close and loving relationship with your family where you were afforded the opportunity for sports and hobbies, which you enjoyed. After the death of your father, you demonstrated aggressive conduct in the family home which escalated. You would at times hit your mum and siblings. There were arguments with your stepfather, noting these increased when your stepfather attempted to discipline or manage your behaviour. Attempted discipline measures would result in you running away from home. Your absconding behaviours increased in your early adolescence where you would leave for a few months, staying with friends, until police brought you back home.
79. You attended three primary schools and experienced difficulty concentrating, listening, following directions and hyperactive behaviour. You were diagnosed in prep with attention deficit hyperactivity disorder (ADHD) and
commenced medication, describing mixed compliance. You were expelled from school in
Grade 1 for fighting behaviours and then attended a school for behavioural interventions for Grade 2 where your aggressive behaviour continued and was even normalised because your peers also came from difficult behavioural backgrounds. You had physical outbursts and were often aggressive towards teachers and students.
80. You had a one-on-one aide afforded to you at all times, however, it is uncertain whether this was due to your impulsive and aggressive behaviour or for learning assistance and support, or both. You experienced difficulty with concentration which impacted your ability to learn but you perceived yourself to have no learning disorders.
81. You attended one public secondary school where your behavioural issues continued. You self-exited mid-Year 9. You stated you had incurred suspensions and detentions for aggressive behaviour. You were largely absent from school, often truant, and not engaging in academic activities offered due to disinterest.
82. After leaving school you worked as a labourer with your stepfather for four months. You then worked for around two out of the last three years before your current incarceration where you were employed in a factory packing boxes.
83. You have no issues making friends and have maintained prosocial friendships from high school. Who continue to assist and support you. You have elected not to enter into a committed intimate relationship due to fear of negatively impacting the potential partner. However, you have had sexual relationships in the past.
84. In terms of your drug and alcohol use, you started using cannabis at the age of 14, smoking up to two grams a day. Your use continued until your current incarceration. You commenced smoking methamphetamines around the age of 19 using several points of substance throughout the week. Your use exacerbated in 2023 following the suicide of a cousin. You also started using MDMA and ecstasy in large amounts. In terms of your alcohol use, you only drank alcohol occasionally but increased your alcohol consumption prior to your incarceration.
85. You have relevant prior convictions for armed robbery, aggravated burglary, affray property damage and others. You have been sentenced to a variety of Children’s Court supervisory orders which have usually resulted in breach proceedings. You have spent several periods in Youth Justice detention.
86. It appears that your last prior conviction was in October 2021. At that time, you were sentenced to 10 months' Youth Justice Centre order, and 150 days or five months was reckoned as served. On my calculation, had you served this sentence in full you would have been released in approximately March 2022. In the two years from then until April 2024 you were working and had been living at the family home. Several months before your offending, or the offending before this court, one of your cousins, who was also a work colleague of yours, committed suicide. This had a devastating impact upon you, and you relapsed into the use of drugs. The cultural bereavement process was very difficult for you and numerous relatives converged on your family home. Your work performance suffered, and you were terminated from that job. In this context, that is grief, unemployment and drug addiction, you made the decision to steal a car hence you committed the offences of home invasion and armed robbery and theft of motor vehicle.
Mental health and psychological assessment – Mr Talanoa
87. Mr Talanoa, turning to your mental health. Two reports were tendered on your plea. The first of those was authored by Andrea McNeill and the second by Dr Sami Yamin.
88. Ms McNeill detailed that you were diagnosed with ADHD in primary school and were medicated with dexamphetamine whilst in your early primary school years. Your presentation to Ms McNeill caused her to comment that you appear to have adapted well to custody and that you had the appearance of a young man who was resigned to a life of institutionalisation. In her view, you did not have symptoms of depression or anxiety, and you have very little insight into your psychological state. Testing for ADHD saw you score in the very low range. Ms McNeill considered there were likely several reasons for this and notwithstanding your score opined that ADHD remained a likely diagnosis. Testing on the MCMI-IV showed results that were largely consistent with your presentation and evidence of a young man who is highly institutionalised and emotionally detached, with severe substance use disorder and parental attachment trauma which serves as a means of self-protection. Ms McNeill also considered there to be evidence of an antisocial personality disorder with narcissistic traits and a variety of substance use disorders.
89. It was Ms McNeill’s opinion that you have experienced parental incarceration, interrupted school attendance and educational opportunities, juvenile incarceration and periods of unemployment. Further, she opined that parental incarceration results in various impacts such as stigma, separation and attachment disruption, which may negatively impact a child’s sense of self, belonging, mental health and wellbeing. Your periods in custody interrupted and precluded you from mainstream education and created further marginalisation and negatively impacted your future employment opportunities.
90.
Ms McNeill considered you to be of moderate to high risk of re-offending.
Ms McNeill highlighted your youth as an important consideration. She opined that there is a significant difference in the maturity of young adults aged 18 to 25 compared to adult offenders. This was due to neurological development continuing beyond this age and psychological limitations such as impaired understanding of consequences, increased impulsiveness, disproportionate emotional arousal and deficiencies in decision-making abilities.
91. Recommendations put forward by Ms McNeill include mental health treatment, AOD support including inpatient rehabilitation, employment and training services and transitional support to assist you to resettle in the community after prison.
92. In Dr Sami Yamin’s neuropsychological assessment you were diagnosed with severe cognitive impairment with your functioning falling into the second percentile. Your intellectual function was in the extremely low range at the time of your offending. You were also assessed to be of reduced intellectual function, memory and learning and executive function.
93. Your assessment performance was consistent with a DSM-V diagnosis of an intellectual disability of mild severity and the reported functional difficulty that you continue to experience. Individuals with your level of function have difficulties in reasoning, problem solving, planning, abstract thinking, judgment, learning from instruction and experience, and practical understanding. Furthermore, they have deficits in areas of more complex adaptive function such as self-management across life settings including personal care, school/job responsibilities, money management, recreation and self-management of behaviour.
94. Dr Yami opined that these deficits represent an immaturity in your thinking and therefore would have influenced your behaviour by impairing your ability to exercise appropriate judgment and to make clear and rational choices. The results of the assessment also indicate that you were likely disinhibited at the time the offences were committed. Your ability to reason and consider your choices is not the same as other individuals your age and this should be taken into consideration.
Application of Verdins and Muldrock principles
95. Your counsel Mr Clamart, in reliance on the opinions of Dr Yami, submitted that your intellectual disability reduces your moral culpability and reduced the emphasis the court should place on punishment and denunciation.
96. The prosecutor Ms Fitzgibbon conceded that your intellectual disability constitutes impaired mental functioning and that there appears to be a connection between your disability and the commission of the charges before the court. Ms Fitzgibbon conceded some reduction in moral culpability should be allowed by the court but submitted the evidence was not sufficient to enliven a finding pursuant to s5(2H)(c)(i) of the Sentencing Act.[11]
[11] Sentencing Act 1991 (Vic) 5(2H)(c)(i).
97. In my view Verdins and/or Muldrock are enlivened in your case such that a reduction in moral culpability is warranted. Additionally, in my view general and specific deterrence should be somewhat moderated. I do not find on balance that s5(2H)(c)(i) is enlivened on the strength of the evidence in your case.
Bugmy Principles
98. I have outlined the principles in the case of Bugmy with regard to your co-offender Mr Raux.[12] Your counsel submits your experience of childhood deprivation enlivens these principles in your case. In particular, he relied upon the child protection reports, your father’s incarceration and drug abuse history, your mother’s history of drug abuse, the death of your father and the periods of physical abuse. Mr Clamart also relied upon the opinions of Ms McNeill to which I have already referred.
[12] Bugmy v The Queen (n 11).
99.Ms Fitzgibbon submitted that Bugmy was not enlivened in your case as although you experienced childhood difficulties they did not support a finding of profound childhood deprivation of the kind contemplated by the High Court in Bugmy.[13] Further, Ms Fitzgibbon submitted that your offending was not causally related to any significant disadvantage in your background. To support her submission Ms Fitzgibbon referred to evidence in the materials that you were observed to be happy and well cared for, that your mother overcame her drug addiction, you were noted to be thriving at the age of three despite some earlier reports of challenging behaviour.
[13] Ibid.
100.The principles in Bugmy can operate both directly and indirectly, and I am satisfied on the basis of the evidence of Ms McNeill and also the pre-sentence report from Youth Justice that your experiences of childhood deprivation are sufficient to enliven the principles of Bugmy in a general way, that is, I consider that the circumstances in which you have been raised mitigate the sentence because I consider your moral culpability is less than the culpability of an offender whose formative years have not been marred in that way.[14]
[14] Ibid.
Youth
101.At the time of the offending, you were 20 years of old. Whilst you were still a young offender and eligible for a Youth Justice Centre order, I requested a pre-sentence report from Youth Justice. You were assessed as unsuitable. You indicated to the assessor that you preferred to remain in adult custody for a number of reasons, including that you were currently incarcerated with an uncle who was likely to be deported in the future. Youth Justice did not consider that you satisfied the s32 criteria.
102.You are now 21 years of age and, as such, whilst you no longer fit the definition of a young offender within the meaning of s3 of the Sentencing Act,[15] you are still to be dealt with as a youthful offender. In my view, although the offending before the court is very serious, it is not so serious as to entirely displace the principles that generally apply to the sentencing of young offenders. These principles include:
[15] Sentencing Act 1991 (Vic) s 3(1).
(a) that the youth of an offender should be a primary consideration for a sentencing court where the matter properly arises;[16]
[16]R v Mills [1998] 4 VR 235.
(b) young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c) courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) incarceration can impair rather than enhance a young offender's prospects of rehabilitation.[17]
[17]Azzopardi v The Queen (2011) 35 VR 43, 34.
103.I find that your age and circumstances at the time of your offending reduces your level of moral culpability and reduces the weight that the court must put on general deterrence. Notwithstanding your significant prior history, I find that you do have prospects for rehabilitation, however, you will need to work hard on your reform.
Category 2 offending
104.As I have previously mentioned, the charges of home invasion and armed robbery, when committed in a company, are Category 2 offences. Section 5(2H) of the Sentencing Act provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a community correction order), unless at least one of the circumstances set out in sub-s(a) to (e) can be established.[18]
[18] Sentencing Act 1991 (Vic) s 5(2H).
105.In determining whether any or all of these subsections have application, I must regard general deterrence and denunciation of your offending conduct as having greater importance than other sentencing purposes set out in s5 of the Sentencing Act.[19] Further, I must give less weight to your personal circumstances than the nature and gravity of the offending and I must not have regard to your early guilty plea, your prospects for rehabilitation or parity with other offenders.
[19] Ibid s 5(1).
106.Your counsel relied upon each of the sub-sections in s5(2H).[20] After careful consideration of the circumstances of your case, I consider that there are powerful mitigatory factors that, in combination, satisfy the exception in s5(2H)(e).[21] I find there are substantial and compelling reasons that are exceptional and rare that justify not making an order under Division 2 of Part 3 of the Sentencing Act.
[20] Ibid s 5(2H).
[21] Ibid s 5(2H)(e).
107.In summary these powerful factors include:
(a) Your youth;
(b) The death of your cousin and the cultural bereavement process that occurred prior to your offending;
(c) Your recent diagnosis of intellectual disability;
(d) My findings with respect to Muldrock and Bugmy;[22] and
[22] Muldrock v The Queen (n 10); Bugmy v The Queen (n 11).
108.Having made that finding, I now intend to move to other mitigatory factors that I can take into account.
Plea of guilty
109.I take into account that each of you, Mr Raux and Mr Talanoa, have pleaded guilty to these charges at a very early stage in proceedings. No witnesses were cross- examined at committal sparing them the need to relive what would have been a traumatic experience. Additionally, you have saved the court the time and expense of a trial. In these circumstances, I accept that your pleas have considerable utilitarian value and demonstrate your desire to facilitate the course of justice. I propose to allow an appropriate discount to you both for your pleas of guilty.
Parity
110.The principles that govern parity are well established. Equal justice requires that like offences be treated alike but also that relevant differences between offenders be capable of being treated as justifying different outcomes. I consider your circumstances to be sufficiently similar that there should be no great difference in the sentences imposed on each of you. So, Mr Talanoa, you were younger, but you have more prior convictions, and Mr Raux, you were on a community correction order at the time of the offending.
Sentencing Principles
111.The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I have moderated the application of just punishment, general and specific deterrence in each of your cases based on the findings I have made pursuant to Bugmy and Verdins or Muldrock and the application of the principles that apply to young offenders.[23] To be clear, I do not find that these sentencing principles are extinguished, I consider in light of the seriousness of the offending and your prior histories that each still has a role to play in the sentencing matrix.
[23] Ibid; R v Verdins [2007] VSCA 102.
112.I have had regard to current sentencing practices as one of the factors in the instinctive synthesis and have considered sentencing statistics in recent cases to determine the sentencing landscape for the offences of home invasion and armed robbery. I am also mindful of the guidance provided by the Court of Appeal in the case of Boulton.[24]
[24]
113.I have had each of you assessed for a community correction order and a Justice plan. So, Mr Talanoa, you have been assessed as suitable by Corrections for a Community Correction Order, but you were not granted a certificate of intellectual disability that is required for a Justice Plan. Mr Raux, you were assessed as unsuitable for a community correction order, but you do have a certificate of intellectual disability and you have been assessed as suitable for a Justice Plan.
Sentence – Damian Raux
114.So, dealing first with you Mr Raux, you are convicted of each of the charges, so that is Charge 1 of home invasion, Charge 2, armed robbery and Charge 3 of theft.
115.In relation to Charge 1, home invasion, I sentence you to 15 months' imprisonment.
116.In relation to Charge 2 of armed robbery, I sentence you to 15 months' imprisonment.
117.I order that three months of the sentence on Charge 1 be served cumulatively on Charge 2, making a total effective sentence of 18 months' imprisonment.
118.In relation to Charges 1, 2 and 3, you are placed on a Community Correction Order for a period of two years from the date of your release from custody.
119.The conditions of the Community Correction Order include that you comply with the Justice plan prepared by Disability Justice and also judicial monitoring.
120.So, I want you to come back and see me in about six months' time, or thereaboutsand I have done that because I am really interested to see how you go, I want to keep you motivated and make sure you are doing the right thing. You have some really good therapeutic relationships in place, you have been continuing to work with Ms Ibrahim, you have been continuing to work with Ms Markham, you have a good connection with Ms Wright, from NDIS and importantly you have supported accommodation in the community and I expect that this time around you can pick up where you left off, and, , with the extra supports that are there for you that you can continue on your path of reformation and stay out of trouble in the long term.
121.Now, the first judicial monitoring will be on 15 December at 9.30 am. It won't be that long after your release, but I do want to check in with you before the end of the year.
122.So, in addition to the conditions I have imposed there are standard conditions of a Community Correction Order. So, the first and foremost of these is that you do not commit any offences which could be punished by imprisonment for the next two years, and you must also report to Werribee Corrections within two working days of your release.
123.So, you are required to advise your supervising Corrections officer of any change of address where you are living and working, and this must be done within two clear working days.
124.It is a term of all community correction orders that you must submit to visits as directed and you must obey all the instructions and directions of the Community Correction Officer.
125.You cannot leave the State of Victoria without prior permission.
126.If you do breach by re-offending or if you do not comply with the conditions, you will be charged with contravention and you will be brought back before me, and I might be required to re-sentence you on these charges.
127.So, Mr Raux, do you understand what is required of a community correction order.
128.ACCUSED RAUX: (Witness demonstrates.) Yeah, I do, Your Honour, I understand.
129.HER HONOUR: Do you agree to doing an order.
130.ACCUSED RAUX: Yeah, I do.
131.HER HONOUR: Now, in relation to Charge 3, your licence is cancelled, and you are suspended from obtaining a licence for three months. And that is from today's date.
132.HER HONOUR: Now, in relation to the contravention of CCO, I find the breach proven, and what I am going to do is cancel that order and I am going to re-sentence you on the two charges that it relates to.
133. There is an attempted aggravated carjacking and unlawful assault, so what I am going to do is impose an aggregate sentence of six months' imprisonment and I am going to order that one month of that be served cumulative on the sentence on Indictment C2400284.
134.So, what this means for you is that you have a total of 19 months' imprisonment. I am going to reckon the time that you have already served in custody which I estimate is about 13 months, I think about 389 days. So, that means that I think that you will be released in about six months' time, so around about November, and then you will be out onto the order. So, it gives time for your care team to get accommodation and everything in place and you can continue working towards transition into the community. All right.
Sentence - Rawiri Talanoa
135.HER HONOUR: So, Mr Talanoa, you are convicted of each of the charges. So, in relation to Charge 1 of home invasion I sentence you to 15 months' imprisonment.
136.In relation to Charge 2 of armed robbery, I sentence you to 15 months' imprisonment and I order that three months of the sentence on Charge 1 be served cumulatively on Charge 2.
137.So, that makes a total effective sentence of 18 months' imprisonment for you.
138.The time that you have served in custody will be reckoned as time served and I understand that to be 389 days as well. So, that means that you have about five months to serve, so you will probably be released sometime around late October or thereabouts.
139.So, in relation to Charges 1, 2 and 3, so each of the charges, you are placed on a community correction order for a period of two years from the date of your release from custody.
140.Now the conditions of the Community Correction Order include supervision, assessment and treatment for drug addiction, assessment and treatment for mental health and programs to reduce re-offending.
141.I am also going to include judicial monitoring, and I do that because I am interested to see how you are going, to motivate you and to make sure you don’t get into trouble. I am also interested to make sure that you have some services there to assist you in the community.
142.The first of the judicial monitoring that I will do is on 16 December at 9.30 am. So that will be about two months or so after you are out, it will be before the end of the year.
143.So, in addition to the conditions I have imposed there are standard conditions on a Corrections order. So, I went through these with Mr Raux, I will go through them for you.
144.First and foremost of these is that you do not commit any offences which could be punished by imprisonment for the next two years. I think you have been able to achieve this when you were released from Youth Justice last time, so that is what I am asking you to do again.
145.You must also report to the Dandenong Corrections office within two working days of your release.
146.You are required to advise your supervising Correction officer of any change of address where you are living and working, and that must be done within two clear working days.
147.It is a term of all Corrections orders that you must submit to visits as directed and obey all instructions and directions of the community Correction officer.
148.You cannot leave the State of Victoria without prior permission.
149.If you do breach by re-offending or if you do not comply with the conditions I have imposed or the standard conditions, you will be charged with contravention and you will be brought back before me and I might be required to re-sentence you on these charges, and that could involve a term of imprisonment.
150.So, Mr Talanoa, do you understand what is required of you on a community correction order.
151.ACCUSED TALANOA: Yes, yes, I do.
152.HER HONOUR: And do you consent to doing a community correction order.
153.ACCUSED TALANOA: Yeah.
154.HER HONOUR: In relation to Charge 3, your licence is cancelled and you are disqualified from obtaining a licence for three months.
155.As I have said, I have ordered that the 389 days each of you have served by way of pre-sentence detention is taken into account, it will be deducted from your sentence.
156.Now in relation to 6AAA, but for your pleas of guilty the sentence I would have imposed – and this is on each of you – is three years with a non-parole period of 18 months.
157.Mr Roux, Mr Talanoa, keep your heads down, I expect you to do well on your orders, I will see you in December.
158.ACCUSED RAUX: Yeah.
159.ACCUSED TALANOA: Thank you.
160.HER HONOUR: And stay out of trouble. All right, we will adjourn the court.
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