Director of Public Prosecutions v Rotumah

[2022] VCC 1532

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR-21-00835

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOEL ROTUMAH

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2022
DATE OF SENTENCE:	7 September 2022
CASE MAY BE CITED AS:	DPP v Rotumah
MEDIUM NEUTRAL CITATION:	[2022] VCC 1532

REASONS FOR SENTENCE

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Subject:                   Criminal Law Sentence

Catchwords:  Koori Court Jurisdiction – Home Invasion – Aboriginal Community Justice Report – Aboriginal disadvantage and inter-generational trauma – Delay – Early plea of guilty.

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; DPP v Drake [2019] VSCA 293; DPP v Fernando (1992) 76 Crim R 58;  R v Gladue [1999] 1 SCR 688; DPP v Herrmann [2021] VSCA 160.

Sentence: Total effective sentence of two years and nine months’ imprisonment with a non-parole period of 23 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. Butcher	Office of Public Prosecutions
For the Accused	Mr T. McCulloch	Victorian Aboriginal Legal Service

HIS HONOUR:

1Noel Rotumah, you have pleaded guilty to one charge of home invasion, and to the uplifted summary charges of commit indictable offence whilst on bail, and contravene a conduct bail condition.

2The maximum penalty for home invasion is 25 years' imprisonment, for commit indictable offence whilst on bail, 3 months' imprisonment or 30 penalty units and for contravene a conduct bail condition, 3 months' imprisonment or 30 penalty units.

3You have admitted relevant prior criminal convictions.

4The circumstances of your offending are clearly and succinctly set out in the summary of prosecution opening which was Exhibit A on the plea and forms part of these reasons for sentence.

Circumstances of Offending

5The circumstances of your offending are as follows.

6On 25 October 2020 your victim, Mr Palodino, was asleep at home with his partner.  At approximately 3.50 am, you were captured on CCTV along with your co-offender, Mr Robins and an unknown third offender arriving outside the Ambon Street, Preston address in Robins' car.  You and your co-offenders got out of the vehicle and entered the garden of the premises.  You climbed the rear retaining wall and entered the property of the apartment complex.

7You and your co-offenders walked up the stairwell leading to the victim's apartment.  Your co-offender, Troy Robins, used a crowbar to force open the metal security door, damaging it in the process.  You then all entered the victim's home together.  You commenced looking for items to steal in the lounge room, whilst your co‑offenders entered the victim's bedroom.

8Your victim awoke to your co-offenders standing over him.  Your co-offenders proceeded to assault him with an object the victim described as sounding like a taser.  Your co-offenders restrained your victim and beat him with an unknown object causing injuries to his face.  You were not involved in the assaults to your victim.  You are not complicit in those acts and you are not charged in relation to those injuries.

9A neighbour overheard thumping sounds and called Triple 0.  That neighbour observed you stealing the victim's electric bicycle from his apartment.  You and your co-offenders then left.

10The victim then came outside, distressed and bleeding.  His right hand was under his chin and his hand and face were both covered in blood.

Arrest and Investigation

11As the neighbour had phoned Triple 0 the Victoria Police Air Wing was near the scene, in a helicopter.

12You and your co-offenders ran back towards Robins' car and drove off as the Police Air Wing commenced following you.  The Air Wing maintained constant observation of the vehicle as you drove through Northland Shopping Centre car park at Ivanhoe.  Police in the helicopter saw you leaving the car via a rear passenger seat before the car drove off again.  At around 5.08 am ground police patrolling the area were notified of your location and they intercepted you walking along Green Street.  You were then arrested and taken to Heidelberg Police Station.

Objective Gravity of Offending

13Turning to the objective gravity of the offending.  Home invasion is a very serious offence.  The seriousness is reflected in the maximum penalty being 25 years' imprisonment.

14Your offending had a number of serious features attaching to it.  It was premeditated with a reasonable degree of planning.  You and your co‑offenders were wearing facemasks in an attempt to hide your identity which also added to the terror of the episode.

15You drove and parked in a street parallel to where the victim lived and scaled a rear wall of another person's residence to gain access to the apartment complex where your victim lived.  Your co-offender had a crowbar used to gain forceful entry to the apartment, damaging the metal security door in the process.  You had the reasonable expectation that your victim would be at home at the time of your offending, given that it occurred late at night and your co-offenders immediately went into the bedroom after entering the apartment.  You were both on bail at the time of your offending.

16I take into account the impact your offending has had on the victim.

Personal Circumstances

17Turning to your personal circumstances.  You are a 34-year-old proud Gunditjmara and Bunitj man.  You are the second child of your mother Joanne Dwyer, a Gunditjmara woman and your late father Peter Rotumah, a Gunditjmara and Bunitj man.

18Your parents separated when you were aged around about three and you saw your father on weekends thereafter.  As I understand it, both parents worked for and with Aboriginal communities over the years and were connected to culture.  You were raised by your mother in Seymour first, as I understand it, then in Collingwood.  Your mother re-partnered and this was when you moved with your mother and stepfather to high rise commission housing in Collingwood.

19You got on well with your stepfather yet he was not without his own troubles.  He was a member of what is called the Stolen Generation.  The impacts upon people belonging to and connected to those who do belong to that group of people are well documented, in amongst other documents the Bringing Them Home Report.  Your stepfather had a drinking problem, no doubt related to his past trauma.  It has been reported that he would go missing for days on end and your mother's relationship with him ended due to those difficulties.  As I understand it, after a period, the relationship resumed when your stepfather had given up alcohol, but then again ultimately ended.

20This was hard on you and you have described the years with your mother and stepfather as better than those that followed.  You were close to your father.  Your father was a well-known leader throughout Aboriginal communities in Victoria and beyond.  He was highly skilled and credentialed across several fields and worked hard as an advocate for Aboriginal people.  His passing in 2018 impacted very heavily upon you.  Your counsel described his passing as a huge personal blow to you and this is understandable.

21You have three children yourself and your love for your children was apparent during the sentencing conversation.  Your daughters are cared for by your mother and your sister, Nikita.

22You have struggled with addiction from a young age.  Details provided in the Aboriginal Community Justice Report filed in this proceeding, along with reports from your mother and sister that emerged during the sentencing conversation, suggest that the environment in the Collingwood flats in which you grew up exposed you to an extreme level of violence, drug culture and negative influences.  This led to considerable fear and hypervigilance on your part.  Given your position in the family and role as a male you felt the need to be a protector and became hardened and hypervigilant to threats in your environment.  This was very much a formative factor in your developing years. 

23You were exposed to cannabis at 14, amphetamine at 16 and methylamphetamine at 18.  You left school part way through Year 10.  There was a substantial police presence around the flats and your behaviour was criminalised at a young age.

24I accept all of these features.

25In 2010 your drug use escalated in response to your symptoms of depression and PTSD that I accept were linked to an assault by police during the course of an arrest which left you hospitalised.  You have sought treatment for your vulnerability to substance abuse over the years.  You are currently on the methadone program and are weaning yourself off so that you can re-enter the community free from dependence.

26You have been painting whilst on remand and this has provided you with a connection to culture that you have found wanting in your life over the years.  I was told you have not lived on Gunditjmara country and this is something that has caused you pain.  It is clear how connected to your Aboriginality you have been from a young age.  Attached to the Aboriginal Community Justice Report is a piece of schoolwork written by you when you were 12 entitled 'Footprints Story'.  I will not read it out but your identification with your Aboriginality and your yearning for a strong connection to your culture, your ancestors and your history is apparent from this piece of work.

27When you are released from custody, I am satisfied that you will have abundant support from your mother, sister and other family.  You have the ability to work and you are an experienced skilled labourer in the construction industry.

ACJR

28An Aboriginal Community Justice Report was filed with the Court.  At the same time it was filed with the prosecution and the defence in this matter.  It is Exhibit E on your plea.  Aboriginal Community Justice Reports provide a holistic view of someone appearing before the court such as yourself.  In your case, the sitting Elders were complimentary about the way the report was written.  I was told it had an authentic Aboriginal voice.

29In my published reasons I will go into some of the background underpinning the Aboriginal Community Justice Report project.  I will not recite that orally today but it will be in my published reasons.

Background

30In 2017 the ALRC recommended that State and Territory governments, in partnership with Aboriginal and Torres Strait Islander organisations ‘develop and implement schemes that would facilitate the preparation of “Indigenous Experience Reports.”

31In 2018 the Victorian Government and the Aboriginal Justice Caucus committed to piloting Aboriginal Community Justice Reports over the 5year period of Aboriginal Justice Agreement 4.

32The reports, modelled on Canada’s Gladue reports include a holistic account of individual circumstances, including as they relate to a person’s community, culture and strengths, as well as making recommendations regarding community -based options.

Canadian Gladue Reports

33In 1996, the Canadian Government amended sentencing laws to require judges to look at all reasonable options available other than jail when sentencing all individuals, but particularly when sentencing First Nations, Inuit and Métis persons.

34In the case of Gladue[1], the court considered that this amendment was intended as a remedy to the overrepresentation of First Nations, Inuit and Métis people in Canadian jails – and what flowed from it was the need to find a new way of determining a suitable sentence for First Nations, Inuit and Métis persons by considering the circumstances that brought them before the court.

[1]R v Gladue [1999] 1 SCR 688

35Gladue Reports became an important tool in providing the judiciary with information about the background and circumstances of a First Nations, Inuit or Métis person in order for the judge to properly consider the circumstances of the individual before them for the purposes of crafting a suitable sentence.

36The Canadian Gladue Reports paint a picture of a First Nations, Inuit or Métis person for the judge. They contain information about the background of the individual and the circumstances that brought them before the court, including the effect colonisation has had on them, their family and community. Gladue reports help judges assess the individual’s need for alternative measures in the community and ability to be successful via these measures.

37In the Victorian jurisdiction common law cases such as DPP v Fernando,[2] Bugmy v The Queen (“Bugmy”)[3], Drake (“Drake”),[4] and DPP v Herrmann,[5] have provided a basis for considering disadvantage in an individual's childhood and adolescence and in particular early exposure to alcohol, substance abuse, family violence and other trauma, as factors that have shaped the person's behaviour and responses and provide insight and explanation for their circumstances and offending.  Moral responsibility for criminal offending is assessed in light of these factors.

[2]DPP v Fernando (1992) 76 Crim R 58

[3]Bugmy v The Queen (“Bugmy”) (2013) 249 CLR 571

[4]DPP v Drake (“Drake”) [2019] VSCA 293

[5]DPP v Herrmann [2021] VSCA 160

38In any case where an individual's background of disadvantage or exposure to trauma is relied upon in mitigation, it is necessary to point to material establishing that background.  In your case that background and those matters are set out in the Aboriginal Community Justice Report and were expanded upon during the sentencing conversation.

39Aboriginal Community Justice Reports or ACJRs provide a wider lens that brings perspective on the collective experiences of the individual, family and community, as well as a relevant history of colonisation and its impacts, as well as an outline of contemporary interventions, circumstances, policies and laws that have impacted Aboriginal people and communities.

40Exhibit E provides me with the evidentiary basis to consider all of the relevant circumstances that have shaped you and your responses throughout your life.  Exhibit E provides a much more detailed and in-depth level of information about your circumstances, your family and community, than is usually provided to a court.  This report also provides a greater opportunity for you and your loved ones, those close to you, to tell your story yourselves, rather than have others tell it.

41In that way it is consistent with and enhances the Sentencing Conversation.  It is also consistent with the recommendations in the report on the
Royal Commission into Aboriginal Deaths in Custody relating to Aboriginal participation and accessibility in the court process.

42Historical trauma and the way it has impacted your family and yourself is also a matter that is covered in Exhibit E and I take it into account in your case.

43I have had regard to all the matters raised in Exhibit E.  I will mention only some of those matters that I have had regard to and accept but that is not to say that there are not other matters that I have not also given weight to.

Exhibit E

44I accept the fact that inherited traumas endure amongst the Gunditjmara descendants today due to the history.  Not just the early history but the continuing history which spans early contact, dispossession, massacres, the Eumerella wars, the legacy of trauma stemming from places such as Lake Condah Mission, Framlingham Mission and the instruments that underpinned those missions and subjugated Aboriginal people.  The tragedy which was a daily tragedy for those affected and their families decade after decade of the Stolen Generations is also a matter that sits in that history and has continuing repercussions up to the present.

45The ACJR makes the point that Victorian Aboriginal communities were impacted very heavily from those misguided practices and policies and make specific reference to the Bringing Them Home Report.

46You, Mr Rotumah, are deeply connected to all of these reference points.  The stories behind each of these reference points that I have touched upon fills many volumes, of course.  It is beyond the scope of these sentencing remarks to do justice to the continuing trauma that has flowed through your community and family from at least as far back as the first recorded massacre in 1834 to the present day.

47I just raise that as one example, amongst the many, of the continuing impacts of dispossession, segregation, subjugation, assimilation policies, systemic racism and discrimination that Aboriginal communities have suffered and that have led to disadvantage and further trauma.  Alongside that history, of course, sits the amazing resilience, leadership and strength shown by many of your community and family and that your Elders have set as examples and urge you to look towards for inspiration in the future.

48Other examples or reference points of that history that I have spoken about and are touched on in the ACJR is the personal story to you in relation to your great grandmother and hiding young Peter Rotumah.  Again, these are reference points that are underpinned by many and lengthy sad stories that have continued.  They do not sit at a particular point in time.

49Exhibit E sets out how intergenerational harms have impacted you in your life.  I accept that intergenerational trauma is relevant to your circumstances and the criminality before me.  I commend the report writers for their rigorous academic approach to the preparation of the report.  It is a thorough report and well expressed.

50It is significant that the prosecution make the following concessions based upon the report.  The prosecution accepts that intergenerational trauma impacted your childhood with specific reference to the report's commentary on children being raised by Stolen Generation members. The prosecution submission also states and I quote.

The prosecution acknowledges the contents of the ACJR and accepts that structural and systemic racism and colonisation influenced Mr Rotumah's personal circumstances and outcomes in life thus far.

51This is a very significant concession but it is one well made and well supported by the Aboriginal Community Justice Report.  It is also one that I accept.  I commended the prosecution for the concession during the sentencing conversation and I do so again now.

52I too accept that structural and systemic racism and the continuing impacts of colonisation have shaped you and your life circumstances thus far.  The ACJR helps demonstrate how your life circumstances sits in that continuum and trauma that I have touched upon and is connected to it.

53I also accept that your participation in the ACJR process is to your credit and something I take into account in a similar way to your participation in the
Koori Court sentencing conversation.

Participation in Sentencing Conversation

54You participated fully in the sentencing conversation.  It was not easy for you.  You were challenged and the content of the discussion was at times distressing for you.  Your sister and your mother also participated in the conversation.  The challenge presented by their observations of you and your life was not easy for you to grapple with also.

55The Elders, Uncle Wally Harrison and Aunty Pam Pedersen, were focused on you being ready to apply for parole, as well as you having the skills and supports available to you when released on parole.

56You have good insight into the support you require and I note that some of this is covered at pp6 and 7 of the ACJR but Aunty Pam and Uncle Wally urged you to be meticulous about your planning.  To seek help.  To be strong, and they urged you to understand that ultimately it is up to you.

57I take into account your engagement in the sentencing conversation as a matter in mitigation.

Other Matters in Mitigation

Delay and Guilty Plea

58I view your guilty plea to home invasion as coming at a relatively early stage of proceedings given the history of the matter.  Your case resolved prior to trial to the present indictment from the more serious charge of aggravated home invasion and complicity in the causing of injury.  I understand you had offered to plead guilty to lesser charges at an earlier stage of proceedings.

59You have been on remand for almost two years.  You have had the matter hanging over your head and the prospect of a longer gaol term hanging over your head if convicted at trial of the more serious charge of aggravated home invasion and the injury charge.  I take that into account.

60Your plea has significant utilitarian value, particularly so during the crisis in the trial lists due to the pandemic backlog.  Your time on remand has been difficult due to lockdowns, quarantine, isolation and reduced access to programs.  The same with visits and calls to family.  Your access to cultural activities or supports has also been restricted.  I take these matters into account.

61This has been the longest period you have ever spent in custody.

Prospects of Rehabilitation

62I turn to your prospects of rehabilitation.  You appear to be genuine in your plans to remain drug free in the community, to work, and to re-connect with your family.  I was able to assess your demeanour during the sentencing conversation and I am satisfied that you were genuine.  The hard work, of course, will begin if you are admitted to parole.

63You will soon be eligible for parole.  With the right supports on parole including cultural supports, in relation to drug counselling, housing, and work I am satisfied that your prospects are good.  As I have mentioned this is also your longest period in custody and that will have had an effect upon you.

64The offence for which I am sentencing you is a category 2 offence and therefore I must make a custodial order, being a head sentence and non-parole period, as there is no exception established.

65General deterrence and denunciation are important considerations in arriving at the appropriate sentence in your case.  Taking into account the nature of your offence and where it sits in the range of seriousness of this type of offending, as well as the matters personal to you and the mitigation to which I have referred, I sentence you as follows.

Sentence

66On the charge of home invasion, you are sentenced to two years and nine months' imprisonment.

67On the relevant summary offences, the bail offences, you are sentenced to one month imprisonment on each charge.

68I direct that all sentences are to be served concurrently.

69That makes a total effective sentence of two years and nine months.

70I set a non-parole period of 23 months.

71I declare that you have served 682 days as pre-sentence detention.

72Is that it Mr McCulloch or is there an update for that?

73MR McCULLOCH:  No, that's the correct figure, Your Honour.

74HIS HONOUR:  That's correct.  Ms Butcher nodding, 682 days.

75MS BUTCHER:  Yes, it is.

76HIS HONOUR:  Thank you.  All right.  So you have served 682 days of that, Mr Rotumah.  Pursuant to s 6AAA were it not for your plea of guilty, Mr Rotumah, I would have sentenced you to three years and nine months imprisonment with a three-year non-parole period.  All right.  Now are there any other orders that I need to make, Ms Butcher?

77MS BUTCHER:  No, Your Honour.

78HIS HONOUR:  Mr McCulloch, that covers everything?

79MR McCULLOCH:  Those are the matters, Your Honour.

80HIS HONOUR:  All right.  Well Mr Rotumah, as I understand it, you will be essentially eligible for parole now or very soon after now.  So you will have to go through the normal process in relation to that but I wish you all the best in that process.  Yes, we will adjourn the court.

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