Director of Public Prosecutions v Saengsourith
[2022] VCC 598
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02459
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SAENGSOURITH |
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JUDGE: | HIS HOUNOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 April 2022 | |
CASE MAY BE CITED AS: | DPP v Saengsourith | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 598 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Barrington | |
| For the Accused | Mr R. de Kretser |
HIS HONOUR:
1 Michael Saengsourith, you have pleaded guilty to:
· 1 charge of aggravated home invasion;
· 1 charge of possessing an unregistered handgun; and
· 2 charges of theft.
2 In addition, you have pleaded guilty to the summary offence of dealing with an unauthorised explosive, namely, fireworks, without approval of the appropriate authority. You have consented to this court dealing with that summary offence.
3 The circumstances of your offending were set out in length in the summary of prosecution opening for plea which was tendered as Exhibit A at your recent plea hearing.
4 The circumstances of your offending were as follows. On 10 July 2021, you with two acquaintances, carried out an aggravated home invasion at a residence in Balaclava which was occupied by two persons who you did not know.
5 It would appear that one of your acquaintances had advised you of a plan to commit an aggravated home invasion in that victim's residence and you agreed to participate. You brought with you a sawn-off double barrel shotgun with cartridges from your home where you resided with your parents. The shotgun was not registered.
6
Prior to approaching the victim's residence, you armed yourself with your
sawn-off double barrel shotgun, one of your acquaintances was given a hammer to arm himself with, the three of you walked to the front door of the residence and knocked on the door. You pretended to be interested in the purchase of medical cannabis.
7 The first of the victims indicated that he did not sell drugs of that nature and closed the door on you. You and your colleagues then walked to the rear of the residence from where you removed a security screen from a window, which led to the bedroom of one of the two residents of the home. You entered the premises through that window.
8 That conduct constitutes the offence of aggravated home invasion, Charge 1. Your possession of the unregistered sawn-off shotgun constitutes Charge 2.
9 One of the residents was sleeping in the bedroom when you entered it. He awoke quickly, you pointed the shotgun in his direction and told both residents to comply with your demands.
10 You then stood guard whilst your two colleagues commenced to search various rooms of the residence. One of those persons demanded from the victims the keys to a safe that they had located in one of the other bedrooms. One of the residents complied with that demand and opened the safe.
11 You stole from the safe various prescription medications and used a black bag, belonging to one of the victims, to secure the stolen items. Your colleagues then stole bank cards and a laptop computer. That conduct constitutes Charge 3, the offence of theft.
12 A quantity of prescription medication was stolen from the residence, including Palexia tablets, three full boxes of Kapanol tablets, three boxes of Murelax tablets, four boxes of Serepax 15 milligram tablets, four boxes of Serepax
30 milligram tablets, fish oil tablets and mirtazapine. One of your colleagues stole $100 cash and the bank cards belonging to one of the residents. This conduct constituted Charge 4, a further charge of theft.
13 Later, one of your colleagues attempted to use the stolen bank cards to withdraw money, but it is not alleged that you were involved in that attempt.
14 On 20 July 2021 you were arrested by members of Victoria Police at your home. In a field interview you made full admissions in relation to the alleged offending, told investigators that you had previously stored the shotgun under your bed in your bedroom, and agreed to take investigators to a location in the Myuna Wetlands in Doveton where you had disposed of the shotgun by dismantling it into three removable parts and throwing it into the water.
15 The prosecution concedes that at the time you made the statement of admissions you appeared to be remorseful to investigators and cooperated with them. In particular you took police to the spot where the dismantled shotgun had been disposed of. You were then arrested and remanded in custody on 20 July 2021. The sawn-off shotgun was recovered by police divers from the Wetlands on the following day.
16
By way of background, you are of Lao heritage. You were raised in Melbourne in the Doveton area. You were educated in primary school in
Doveton and then at Dandenong Secondary School from Year 7 to part way through Year 11.
17 You commenced using cannabis when you were 13 and methylamphetamine or ice when you were 14. You were suspended from school in Year 8 for dealing in cannabis and ceased school in Year 11 because you had become addicted to those drugs.
18 After leaving school you worked in various capacities, mainly as a cleaner and you had hoped to work as a counsellor. You commenced a course in community services but did not complete it.
19 You have a partner and infant daughter aged about 15 months. Your daughter you have not seen since being remanded in custody.
20
The agreement to plead was resolved when you agreed to plead guilty at the time of your committal hearing in November 2021. You remain on remand at
Port Phillip Prison to this time.
21
You have prior convictions dating back to the Children's' Court in August 2016
when you were found guilty of robbery and possessing a controlled weapon without excuse. You have other convictions for possessing prohibited weapons, possessing cartridge ammunition, and possessing an imitation firearm. You have convictions for possessing a drug of dependence.
22 I take into account the provisions of s5(1) and (2) of the Sentencing Act. The purposes for which I may sentence you are:
· to punish you to an extent in a manner which is just in all of the circumstances;
· to deter you and other persons from committing offences of the same or of similar character;
· to establish conditions within which it is considered by the court that your rehabilitation may be facilitated;
· to manifest the denunciation by the court of the type of conduct in which you engaged; and
· to protect the community from you.
23
The Act directs me to have regard to the maximum penalty prescribed for these offences. The maximum penalty for an aggravated home invasion is
25 years’ imprisonment. The offence of aggravated home invasion is a mandated Category 1 offence. By reason of s5(2G) of the
Sentencing Act 1991, in sentencing an offender for a Category 1 offence the court must impose a custodial sentence.
24 Section 10AC of that Act provides that in such a case the court must in addition fix a non-parole period of not less than three years unless the court finds that a special reason exists.
25
The term, special reason, is defined insofar as is relevant to your case, in
s10A(2) as being where the offender has assisted or given an undertaking to assist law enforcement authorities in the investigation or prosecution of an offence.
26 Secondly, if the offender proves, on the balance of probabilities, that he has impaired mental functioning, which I do not consider is applicable here, or he has impaired mental function which would result in him being subject to substantially materially greater than ordinary burden of risks of imprisonment, which I do not consider is the case here.
27 Thirdly, if there are substantial or compelling circumstances that are exceptional and rare and that justify doing so. I do not consider the circumstances here are substantial and compelling, but I do in the end consider that you have given assistance to law enforcement facilities, and I will come to that in moment.
28 In this matter your counsel submitted that a special reason does exist in relation to s10AC of the Sentencing Act and that a term of imprisonment with a non-parole period of not less than three years is not mandated by s10A.
29
Your counsel submitted that you have provided assistance to law enforcement authorities by guiding them to the location of the firearm that had been in your possession at the time of your offending and which you had disposed of in the
Myuna Wetlands in Doveton.
30 The prosecutor accepted that you had satisfied the exceptions set out in s10A(2)(a) in that you had assisted law enforcement agencies in the location of the firearm, and this amounted to a special reason as defined.
31 I am satisfied that after your arrest you made admissions to police that you had been involved in the aggravated home invasion, that you had in your possession at the time, the unregistered sawn-off shotgun and that you had disposed of that weapon by throwing it into the water at the Myuna Wetlands.
32 You were later escorted by police to those Wetlands where you identified to police the place where you had thrown the weapon into the water. You told them that the gun had been dismantled into three separate parts before doing so. Two days later, as I have said, police divers located that weapon, pretty well exactly where you had indicated to police where you had disposed of it.
33 Without your assistance, I accept that the firearm was unlikely to be promptly recovered. It was still, once reassembled, a dangerous weapon capable of inflicting significant harm.
34
I accept that the court must impose a custodial sentence in your case, but that the court's discretion in fixing a non-parole period is unfettered. The maximum penalty for the offence of theft is 10 years imprisonment. The maximum penalty for possessing an unregistered general category handgun is seven years imprisonment or a fine of 600 penalty units or both. The maximum penalty for dealing with an unauthorised explosive without approval is a fine of 100 penalty units, which on my calculations is something around
$18,000.
35 Your conduct in forcing your way into a private home with your two friends, armed with a dangerous weapon, with which you threatened the occupants of the house, stealing items of value from them, and in the process frankly terrorising them, was very serious offending indeed.
36 Both residents of the house presented victim impact statements to the court. It is plain that they have suffered greatly as a consequence of your offending. Your counsel correctly, in my opinion, described your conduct would have been terrifying for those occupants.
37
You have a number of prior convictions which I consider are relevant to sentencing of you. In October 2018, you were convicted of possessing a prohibited weapon, namely, knuckle dusters, possessing cartridge ammunition without licence or permit and possessing an imitation firearm without exemption or approval. You were sentenced to a 12-month
community correction order, subject to a number of conditions.
38 Less than a year later, in May 2019, you were convicted of breaching that community correction order. A further community correction order was made with varied conditions.
39
In your favour, I accept, firstly that you cooperated with police after being taken into custody. Secondly, that you have pleaded guilty to these charges at a relatively early time, which I accept demonstrated probable remorse for your offending. It also has utilitarian value in that witnesses, and in particular, the two victims were not required to give evidence in a trial and valuable court resources were saved, which is especially important in this era of the
COVID pandemic.
40 I take into account that a period of incarceration during the COVID pandemic is likely to be harsher on prisoners than would normally be the case. Regulations relating to visitors, rehabilitation and educational programs and prohibitions during lockdowns are likely to make incarceration more onerous than would normally be the case.
41 I take into account that you have, since your arrest, seen little or nothing of your family and young daughter. I have read and take into account the reports of Pamela Matthews, a forensic psychologist dated 3 March 2022 and also Debra Kindle, a senior psychiatric nurse, dated 1 October 2018.
42 I accept that you have suffered from symptoms of depression and anxiety for some years and have suffered from a drug dependency since you were aged about 13, and that you have been diagnosed with stimulant disorder.
43 I note Ms Matthews views concerning your immaturity and that you are likely to benefit from drug treatment and behaviour support in custody and I would suggest after your release, one hopes.
44
I take into account the undated letter written by you and addressed to the
Magistrate, which was tendered at your plea hearing. I am not sure whether this letter was written for this court appearance or some earlier one.
45 I also take into account the other character references that have been provided by your partner, Alexandra Domenici, and your brothers Jack and William and your cousin Adrian.
46 In all the circumstances, I sentence you as follows in relation to these offences.
47
On Charge 1, being aggravated home invasion contrary to s77B of the
Crimes Act 1958,you are convicted and sentenced to five years’
imprisonment, which I will describe as the base sentence.
48 On Charge 2, that of possessing an unregistered handgun contrary to s7B of the Firearms Act 1996, you are convicted and sentenced to one year of imprisonment to be served concurrently with the base sentence.
49 On Charge 3, theft of the computer, bank cards and the Tosca bag, you are convicted and sentenced to six months’ imprisonment to be served concurrently with the base sentence.
50 Charge 4, theft of the bank cards, cash and drugs that were stolen from the property, you are sentenced to six months’ imprisonment to be served concurrently with the base sentence.
51 On the summary charge of dealing with an unauthorised explosive, you are convicted and fined the sum of $500.
52
It follows that I have sentenced you to a total effective prison sentence of
five years and I direct that you not be eligible for parole until you have served
two and a half years of that term.
53 I have imposed a lesser non-parole period principally because of your age, and because it seems to me that you would be assisted by a slightly longer period of parole, if indeed you are granted parole. During that period of parole, it is likely that you would receive supervision from authorities.
54 I should say that whether or not you are granted parole at that time or any other time, is not a matter for this court, but a matter for the parole board solely.
55 Now, I was advised this morning, gentlemen correct me if I am wrong, that you have served 267 days by way of presentence detention, not including today. I declare that such period, 267 days, be deemed as a period served in part satisfaction of the sentence which I have just pronounced.
56
Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total effective sentence of seven years’ imprisonment with a non-parole period of
four and a half years.
57 Now, at the last occasion, I was handed a number of orders. There was a forfeiture order, which related to the double barrel shotgun. There was a disposal order, which related to a zip lock bag containing fireworks, two boxes of Anaverol tablets and one Winchester cardboard box. I think that's all, is that right, Mr Prosecutor?
58 MR BARRINGTON: It is, Your Honour, those are the two ancillary orders.
59 HIS HONOUR: And I think on the last occasion, Mr de Kretser, you indicated that they were not opposed, those orders.
60 MR DE KRETSER: That's correct, Your Honour, none of the disposable forfeiture orders are opposed.
61 HIS HONOUR: I make those orders forthwith. Are there any other matters that either counsel consider that I've omitted to refer to?
62 MR BARRINGTON: No, Your Honour.
63 MR DE KRETSER: No, Your Honour.
64 HIS HONOUR: No other matters that require my attention this morning?
65 MR BARRINGTON: Not from me, Your Honour.
66 HIS HONOUR: Yes, thank you. That being the case, I will adjourn the court to half past 10 where an unrelated matter waits to be heard.
67 MR BARRINGTON: As Your Honour pleases.
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