Director of Public Prosecutions v Saruhanyan

[2020] VCC 1682

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00645

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAREN SARUHANYAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2020
DATE OF SENTENCE:	20 October 2020
CASE MAY BE CITED AS:	DPP v Saruhanyan
MEDIUM NEUTRAL CITATION:	[2020] VCC 1682

REASONS FOR SENTENCE
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Subject:  Home invasion, Common law assault
Sentence: 3 years imprisonment with a non parole period of 2 years.
                Summary charges

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr D. Cole

HIS HONOUR:

1Karen Saruhanyan, you have pleaded guilty to a number of charges arising from crimes committed by you on 6 April 2019.

2Charge 1 is a charge of home invasion for which the maximum penalty is imprisonment for 25 years.  Charge 2 is a charge of common law assault for which the maximum penalty is imprisonment for five years.

3You have also consented to two summary charges being heard by me in this court and you have pleaded guilty to each of those charges summarily numbered 10 and 11.  Summary Charge 10 is a charge of impersonating a police officer.  The maximum penalty for this offence is a fine of 120 penalty units, or imprisonment for one year, or both.  Summary Charge 11 is a charge of committing an indictable offence whilst on bail.  The maximum penalty for this offence is imprisonment for three months or a fine of 30 penalty units.

4The circumstances of your offending are contained in an amended summary of prosecution opening dated 8 October 2020.  That document was read to the court by the learner prosecutor Ms Malobabic, and your counsel Mr Dunn QC, did not take exception to what is contained therein except for one matter.  Your instructions are that you did not punch one of the victims in the stomach but you pushed the victim.  I will deal with that matter later.  That matter aside, your counsel accepted the accuracy of the prosecution summary.  In those circumstances it is not necessary that I here again set out in full that which is contained in the amended prosecution summary, and I will do so only in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is set out in the amended prosecution summary which was tendered in evidence and marked as Exhibit “A”.

5The victims in this matter were a Vietnamese couple, their children and a relative.  Together they resided at a house in Noble Park.  The principal victim, Mr Hung Le was also engaged in criminal activity.  One of the rooms within the house was used to grow a cannabis crop by hydroponic means, and electricity to assist with the growing of the crop was stolen by means of a bypass.

6You offended with two others, namely, Nicholas Larsen and Michael Kristevski. They have also been charged and remain on bail.  They face a contested committal on 26 October next.

7On 25 March 2019 Larsen rented a silver Toyota motor vehicle.  On 6 April 2019 at approximately 3:24 am you were observed at the Caltex service station in Carnegie seated in the front passenger seat of this rented vehicle.  Shortly after this, at about 4 am, the victims were asleep in their home.  You, and your co-offenders arrived at the house in the Toyota with the registration number altered.  Kristevski’s girlfriend was also present but she did not take part in the offending and has not been charged.

8You and your co-offenders entered the property wearing Victoria Police issued uniform shirts and Police Association baseball caps.  You were each carrying backpacks with police style insignia and you were carrying crowbars.  Using the crowbars you opened the front screen door of the house and you forced entry through the front door whilst yelling “we are police open the door now”.  The three of you together forced your way into the property.  The occupants attempted to close the front door but you and your co-offenders were able to force your way into the house nonetheless.  The doorframe and security door were damaged in this process.

9A young child was crying in the arms of its' mother.  Your co-offenders started searching the house.  One of them was still carrying a crowbar.  You stood over the occupants and you pushed them both by their shoulders and told them to sit down.  When Hung Le attempted to resist you, you punched him in the stomach, as a result he fell to the floor.  In a statement later given by you to investigators you said you only pushed him.

10It was soon evident that you and your co-offenders were not police officers.  The occupants as victims begged you and your co-offenders not to hurt them.  One of the occupants tried to phone police but the phone was removed from her. Another of the occupants did manage to succeed in calling the police.  Kristevski or Larsen produced a toy samurai sword and handed it to you which you held as you stood watch over the victims.  You did not threaten them with it, but you had it.

11In the spare room, as I say the occupants were growing cannabis hydroponically.  Your co-offenders entered the spare room and commenced cutting the cannabis plants.  They were placed on a bed sheet which was produced from a backpack.  While this was going on police arrived outside the premises.  You and your co-offenders immediately decamped on foot leaving everything behind, including the cannabis plants and the car and uniforms and other items that you collectively had taken to the crime scene.

12You jumped the rear fence of the property and ran away.  Police gave chase to you and you were observed on the roof of a neighbouring property.  You were eventually arrested about 100 metres away from the house.  You were conveyed to the Dandenong Police station where you made a “no comment” record of interview, and you were remanded in custody and you have remained in custody since that time.  Four months of your time in custody relates to a sentence imposed on 25 May this year at the Melbourne Magistrates’ Court on a charge of burglary and theft that occurred in July 2017.  You were on bail in relation to those charges at the time of this offending that I must sentence you for.

13Investigating police seized various items identifiable with Victoria Police markings at the scene.  They also found crowbars and the imitation samurai sword, and gloves amongst other items.  A police motif issued uniform shirt was also found the following day by a neighbour along with a black belt containing handcuffs and other items.

14The occupants were investigated and charged relating to the growing of a cannabis crop.  Mr Hung Le identified you as the offender who assaulted him from a photo board.  As part of the investigation police seized phone contact records showing that you had contact with your co-offenders prior to the offence occurring.

15Your co-offender Larsen was arrested on 3 May 2019 and also provided a “no comment” record of interview.  Kristevski was arrested on 7 May 2019. Fingerprints and DNA matching yourself and your co-offenders were located on items seized from the Toyota vehicle and other items found at the house.

16The clear purpose of invading the house of the victims was to steal the cannabis crop within.  The fact you and others broke into the home of other persons who were also breaking the law cultivating a narcotic plant only goes to explaining why you offended and your motivation for offending in this way.  It does not excuse what you did.

17This home invasion by you in the company of others was a serious example of this offence.  It involved three offenders armed with crowbars entering the property in the early hours of the morning whilst the family within were asleep. The three of you forced entry to steal drugs which you must have known to be within the property.  The offending was planned, and you were disguised as police officers presumably to justify your entry.  There were cars parked in the driveway and you knew that there were occupants within.  The forced entry by you and your co-offenders caused a confrontation with the occupants, including with young children present, and it lasted for approximately eight minutes. Although there are no victim impact statements tendered, the circumstances of the way you and your co-offenders entered the house, confronting the victims within, must have been a very confronting and frightening experience for the victims.  Fortunately, there was limited violence used.  I accept you punched Hung Le in the stomach.  But again fortunately, there were no weapons used.  I accept you did not plan the offence.  Others did.  But you went along with it.  It was an important part of this offending that there were three of you involved and you were able to force the issue by weight of numbers.

18In my view, although a serious example of this offence in Charge 1, it probably falls at about mid-range for this kind of offending.  Charge 2 falls towards the lower end of the scale. 

19An aggravating feature here is the use of police uniforms and other police equipment.  Summary Charge 10.

20So far as you are concerned, a further aggravating feature is the fact this offending occurred whilst you were on bail, having been charged with burglary and theft, which offences were committed on 12 July 2017 about 20 months before this offending.  Summary Charge 11.

21It is conceded that at the time of offending you were drug affected having taken methamphetamine, and you are a long-term drug user.  The offending here occurred for the purpose of obtaining money to buy drugs.

22In sentencing for crimes of this kind, the court must have full regard to deterrence (both general and specific), denunciation, protection of the public, just punishment and your prospects for rehabilitation.  For reasons that I will shortly come to, I regard your prospects for rehabilitation as being, at best, guarded.  You are a long term drug user and previous dispositions imposed for past offending that were intended to assist with your rehabilitation, failed to achieve that desired end.

23You are presently aged 41 years.  When you pleaded guilty you admitted a number of prior convictions from nine previous court appearances between September 2007 and May of this year.  You have a number of prior convictions for dishonesty offences including burglary and theft.  In the past you have received a number of non-custodial dispositions including suspended sentences and a community corrections order.  All of your prior offending is related to the fact you are a long-term drug user.

24You have pleaded guilty to the charges and you have given an undertaking to give evidence if called upon against your co-offenders in accordance with a statement provided by you and dated 21 September of 2020.

25You were charged with this offending on 6 April 2019.  There were two committal mentions that were adjourned and the committal hearing was vacated on 6 April of this year due to the Covid-19 pandemic.  The charges resolved into a plea at a special mention on 8 May of this year.  For the purposes of sentencing I treat you as having pleaded guilty at the earliest opportunity.  For that you are entitled to receive, and will receive a reduction in sentence which I will refer to when I pass sentence shortly.

26By your pleas of guilty you have saved the time and costs of a trial and importantly here you have saved the victims from having to give evidence against you.  By your pleas of guilty you have taken responsibility for your crimes and you have advanced the administration of justice.  I accept that you are remorseful for your conduct.  All of these things go to mitigate the sentence you will receive and need to be taken into account in arriving at an appropriate sentence.

27Further, in your case, as I said before you have given a statement to police about the offending, your role in it and the involvement of your co-offenders.  Before me you have given an undertaking to give evidence if called upon to give evidence in accordance with that statement.  At the plea I was told the prosecution takes issue with some of the matters referred to in your statement.  However, since the plea the court has been advised by the instructor of Ms Malobabic by email that the prosecution will call you as a witness in the upcoming committal proceeding against your co-offenders.  

28The important thing here is that you have volunteered to give evidence.  In doing so you have compromised your own personal safety in a prison setting and you will have to be housed in protective custody whilst in prison, making your time in prison more burdensome for you.

29Sentencing principles have long recognised that offenders who assist with the prosecution of others put themselves at risk, often consigning themselves to protection in custody making their time in custody more burdensome and are deserving of a substantial reduction in sentence.  By doing so, the administration of justice is advanced.

30In your case I have taken this matter fully into account in arriving at a reduced total effective sentence, and in fixing what I consider to be a very short non-parole period.  This is especially so in your case because the sentence of you must have full regard to specific deterrence because of your past criminal history of burglary and dishonesty.

31Mr Dunn filed with the court a helpful written outline of his submissions dated 5 October 2020 which I marked as Exhibit 1.  Attached to that exhibit is a chronology of your life prepared on 29 September 2020.

32Mr Dunn submitted that there had been some undue delay in bringing these charges before the court.  I do not accept that to be the case.

33It is important that I have full regard to your background and I borrow from the submissions to the court by Mr Dunn.

34You are 41 years of age and you were born in Uzbekistan to Armenian parents. Mr Dunn acknowledged that you have a long-standing drug problem.

35You came to Australia as part of the Uzbekistan boxing team for the 2000 Olympics in Sydney.  Whilst in Australia you met your wife to be.

36In 2001 you returned to Uzbekistan after your father died suddenly.  You later obtained a spousal visa to enter Australia.  You soon after married and began working as a plasterer in general building and construction.  However, there were difficulties in your marriage caused by the fact that the because you were not Jewish, your mother-in-law did not approve of the marriage.  In 2006 your brother aged 17 came to live with you and your wife in Australia.  In January 2006 your son now aged 14, was born.

37You are a permanent resident of Australia.  Conviction for these offences may place you at risk of having that status revoked and you may be deported from this country when released from prison.  That prospect will make your time in custody more burdensome than for other prisoners not in the same position and I have taken this into account.

38In 2007 you and your wife separated.  As a result you apparently became depressed and turned to drugs.  From 2008 onwards your life spiralled further into drug addiction.  In 2007 you had your first two court appearances in the Magistrates’ Court.  So it was, that you had continuing problems being accepted by your mother-in-law and your drug use exacerbated the problems in your marriage.  Your work ethic dropped off.

39I was told and accept that your drug addiction and associated psychological problems with depression remained untreated.  In 2010 your wife’s parents separated, and in 2012 they divorced.  Although you had both separated, you and your wife maintained a relationship and your wife tried to assist you to rid yourself of heroin.  This included naltrexone injections.

40In 2017, I was told and accept, that you ceased using heroin but turned to methyl amphetamine, Ice.  There were problems within the family with sick elderly parents and the difficulties of your mother-in-law approving of you not unexpectedly continued.  In 2017 you were charged with two burglaries.

41In 2019 you committed these offences that I must sentence you for, and as I say, whilst you have been in custody since the time of this offending you have also completed a four-month sentence imposed in May of this year for offences of burglary committed in 2017.

42I was told and accept whilst in custody you have attempted to withdraw from drugs.  Your wife is prepared to have you at home and is committed to her relationship with you.  I was told and accept that she is committed to doing all she can to help you rid yourself of drugs.  Whilst in custody you have maintained daily contact with your wife and son.  I also received into evidence as Exhibit 2 a letter from Amanda Brown at Lambert & Associates dated 19 April 2020 which was prepared to support a bail application.

43I received into evidence a lengthy statutory declaration from your mother-in-law as Exhibit 3.  That document sets out much of the history of the relationship between yourself and your wife and your wife’s parents.  It is clear to me that you fortunately enjoy good family support, notwithstanding your long term drug use and offending.  Your mother-in-law also gives evidence that you have changed for the better since being in custody and that you are determined to do something about your drug addiction.

44I also received into evidence a letter from one Leon Komm, the partner of your mother-in-law.  His company is prepared to give you employment as a builder's labourer when you are released from prison.

45Mr Dunn submitted that whilst in custody since April 2019, you have tried to rid yourself of drugs.  You have been on the methadone program whilst in prison.

46Mr Dunn acknowledged the seriousness of this offending and the fact you have a number of relevant prior convictions.  There is no dispute here as to the relevant and applicable sentencing principles.  Mr Dunn submitted that I should impose a custodial sentence and a Community Corrections Order which should see you released from custody relatively soon.  He relied upon the principles expressed by the Court of Appeal in Boulton.  Mr Dunn submitted that a combination sentence of a term of imprisonment coupled with a Community Corrections Order with appropriate conditions will achieve all the relevant purposes of sentencing in this case and will ensure you get appropriate treatment for your drug problems and appropriate counselling after a reasonably lengthy time in custody. 

47You have served 443 days pre-sentence detention and four months for the Magistrates’ Court sentence imposed on 25 May this year.  Whilst in custody you have had to endure the effects of conditions imposed because of the
Covid-19 pandemic.  These have meant you cannot have had family visits, and your movements within prison have been restricted and you have not been able to engage in all of the programs normally available to prisoners.  In passing sentence I have taken all of this into account.

48The prosecution submitted that notwithstanding each of the matters relied upon in mitigation on your behalf, a combination sentence in this case is not appropriate.  The prosecution submits that having regard to the seriousness of your offending and your past criminal history and history of drug addiction there is a need for the sentence to properly reflect both general and specific deterrence and the need to protect the public.  The prosecution submits that a combination sentence of imprisonment and a Community Corrections Order will not properly achieve the purposes of sentencing in this case.  It submits the only appropriate sentence is to fix a term of imprisonment and a non-parole period.

49I accept the prosecutions submissions here.  As I have said, I think your prospects for rehabilitation are at best, guarded.  You have had non-custodial dispositions in the past but you have not taken advantage of them and you committed this offending whilst on bail.  Although I had you assessed as to suitability for a further Community Corrections Order, and you have been assessed as suitable and as being of medium risk of re-offending, I have concluded that a combination sentence will not achieve all of the purposes of sentencing in this case.  In this case there is a need for specific deterrence to be properly addressed in the sentence.

50In my view the sentence of imprisonment that I will impose, both as to total effective sentence and in the fixing of a minimum term, properly takes into account all of the circumstances of this case and addresses all of the appropriate sentencing purposes and principles.

51On Charge 1, home invasion, you are convicted and sentenced to a term of imprisonment of three years.

52On Charge 2, assault, you are convicted and sentenced to a term of imprisonment of one month.

53On summary Charge 10, impersonating a police officer, you are convicted and sentenced to a term of imprisonment of three months.

54On summary Charge 11, committing an indictable offence on bail, you are convicted and sentenced to a term of imprisonment of two months.

55I make no orders for accumulation making a total effective sentence of three years imprisonment.

56I direct that you serve a non-parole period of two years imprisonment before being eligible for parole.

57I declare there has been 443 days pre-sentence detention of the sentences passed this day and direct that 443 days be reckoned as having been already served and be entered into the records of the court and deducted administratively.

58For the purposes of s. 6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty to the charges and the fact you have given an undertaking to give evidence against your co-offenders, I would have imposed a total effective sentence of six years' imprisonment and I would have fixed a minimum term of four and a half years before you would have been eligible for parole.

59Are there any questions arising out of that, Ms Malobabic?

60MS MALOBABIC:  No, Your Honour, there is only one issue in relation to the disposal order the Crown sought in the plea. 

61HIS HONOUR:  I am sorry, I could not - could you say that again? 

62MS MALOBABIC:  Yes.  There is only one issue in relation to the disposal order.

63HIS HONOUR:  Yes, we have a disposal order which I understand is not opposed.  Is that right Mr Cole?

64MR COLE:  Yes, Your Honour.

65HIS HONOUR:  Is the making of the disposal order - - -

66MR COLE:  That is correct, Your Honour, not opposed. 

67HIS HONOUR:  Yes, I will sign that order.  Do you have any matters, any questions arising out of the sentence, Mr Cole?

68MR COLE:  No, Your Honour. 

69HIS HONOUR:  Yes, very well.  Thank you, well I will arrange to have the transmission terminated.  Thank you everyone. 

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