Director of Public Prosecutions v Seualuga
[2022] VCC 1853
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT Melbourne
CRIMINAL DIVISION
CR-22-01534
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT SEUALUGA |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2022 | |
DATE OF SENTENCE: | 26 October 2022 | |
CASE MAY BE CITED AS: | DPP v Seualuga | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1853 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Burglary – intentionally damage property – aggravated burglary – theft – armed robbery – not eligible for youth justice centre order – youthful offender – one-man crime wave – drug and alcohol fuelled offending
Legislation cited: Criminal Procedure Act 2009; s145, s242; Sentencing Act 1991; s5(4)
Cases cited: Worboyes v R [2021] VSCA 169; R v Wyley [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA 372; R v Mills (1998) 4 VR 235
Sentence: Convicted and sentenced to four years and seven months’ imprisonment with a non-parole period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | Director of Public Prosecutions |
| For the Accused | Ms E. Byrt | Emma Turnbull Lawyers |
HIS HONOUR:
1 Vincent Seualuga, on 5 October 2022 you pleaded guilty to the following charges on Indictment No. N10750040:
· Charge 1, burglary in Larnook Crescent in Truganina. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 2, intentionally damage property belonging to Tarun Kumar. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 3, attempted aggravated burglary in Larnook Crescent in Truganina. This charge has a maximum sentence of 20 years' imprisonment.
· Charge 4, intentionally damaging property belonging to Mani Tata and Swathi Peeta. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 5, aggravated burglary in Starflower Way in Truganina. This charge has a maximum sentence of 25 years' imprisonment.
· Charge 6, theft of a Triumph motorcycle belonging to
Andrew McInnes. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 7, armed robbery of Usmair Hashmi. This charge has a maximum sentence of 25 years' imprisonment.
· Charge 8, theft from Usmair Hashmi. This was a rolled‑up charge. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 9, attempted aggravated burglary of a 7-Eleven store on the corner of Dohertys Road and Derrimut in Tarneit. This charge has a maximum sentence of 20 years' imprisonment.
· Charge 10, intentionally cause damage to 7-Eleven service station at Tarneit. This charge has a maximum sentence of 10 years' imprisonment.
· Charge 11, armed robbery of Shuath Mohammed. This charge has a maximum sentence of 25 years' imprisonment.
2 Pursuant to ss145 and 242 of the Criminal Procedure Act you consented to and pleaded guilty to six separate charges of committing an indictable offence on bail and one charge of contravening a condition of bail. Each of these seven charges have a maximum sentence of three months' imprisonment.
3 You have admitted a prior criminal history. On 27 February 2020, without conviction, you were fined an aggregate of $500 for charges of intentionally damaging property and resisting an emergency worker on duty, theft, and throwing a missile causing damage, and bail offences. On 17 March 2020 you were convicted and placed on a 12-month CCO for a carjacking, robbery, theft and obtaining property by deception. The prior criminal history is directly relevant to the offending before this court.
The s of your offendingcircumstance
4 At the time of your offending, you were 20 years old. The offending occurs over three days, but two periods of time. The circumstances of your offending are set out in the Prosecution Opening for Plea dated 29 September 2022. It was Exhibit “A”. A summary of your offending is as follows:
5 At 9.30 pm on 10 April 2022, you broke into a house in Larnook Crescent in Truganina by kicking in the back door. You had a hammer with you. The occupants of the house at that time were overseas. That is the burglary charge and contravening condition of bail.
6 The break-in was captured on CCTV in the house. You damaged the following items: the front security door, the internal door from the house to the garage, the LED television within the bedroom of the house, a 2014 Range Rover which had damage to the driver's side window and the rear quarter panel side right window, boot window and the left rear taillight.
7 You have then gone to the next door neighbour’s house in Larnook Crescent. The occupants, Tata and Peeta, were alerted to what was happening from the noise made by you. The occupants were in their front yard and they were aware that their neighbours had been overseas. You moved towards the two of them. You were wearing black clothes, a black mask with cut‑outs over your eyes and mouth, and gloves. The occupants then went back inside their house and shut the door. You banged on the door demanding the keys for next door. You have then banged on the glass panel which broke. That is the criminal damage charge. The value of that was $500.
8 You have then put your hand through the broken glass panel and attempted to open the door. That was your attempted aggravated burglary and one of the charges of committing offence whilst on bail. You then demanded the keys and the occupants said they did not have them. They pushed the door shut. They had young children in the house who were crying in fear. They called triple zero and in the course of the incident Peeta suffered cuts. After a few minutes you left that place in the direction of Larnook Crescent.
9 You then went to a house in Starflower Way in Truganina. Mr McInnes was asleep in his house at the time. You had stolen his motorcycle, which was a Triumph Trident, from the garage where it had been stored with his helmet. The motorcycle was worth about $14,000. That was the charge of aggravated burglary, theft of the motorcycle and again committing an offence whilst on bail. The motorcycle was recovered.
10 Just past midnight between 10 April 22 and 11 April 22, Mr Hashmi, who was driving for Uber Eats and was performing a delivery in Truganina, had parked his car to complete a delivery and turned off his vehicle. You arrived on the motorcycle which you had stolen from Starflower Way. You were wearing the full protective equipment. You then asked Mr Hashmi for his phone. Mr Hashmi asked you not to take it as it had photographs of his young baby on it. You asked for the phone again and produced a hammer with a blue handle. You held up the hammer to Mr Hashmi and told him not to be a hero. You took the phone and saw it had a cracked screen so you gave it back to him. You asked Mr Hashmi for his wallet and he gave you $50. You have then got into Mr Hashmi's vehicle, which was a 2009 Toyota Camry, and driven it away. That is the rolled‑up charge of theft.
11 At about 12.30am on the morning of 11 April 2022 you had driven into a car park at 7-Eleven on the Derrimut Road and Dohertys Road intersection in Tarneit. There were customers in the store at the time. You have driven there in Mr Hashmi's vehicle. The front glass doors of the 7-Eleven service station were shut. You were wearing black clothes and a balaclava. You were still holding the hammer. The attendant at the store did not open the doors. You have then attempted to enter the store. You yelled for the doors to be opened. The attendant pressed the duress button and allowed two customers into the safety room as it is called.
12 You then kicked the glass door. You have hit the doors multiple times with the hammer. This caused damage to the glass, but it did not break. That was Charge 9, attempted aggravated burglary and Charge 10, intentionally damage property, and again, committing an offence whilst on bail. The damage to the door was approximately $2,000. I viewed the footage, which was Exhibit “B” of this offending. You were persistent in your attack to get inside the store. You failed to do so.
13
The third day, the second set of events was on 13 April 2022.
Mr Mohammed was working at a BP service station at Sayers Road in Williams Landing. On that day at approximately 9.30 am you jumped the counter. Mr Mohammed tried to leave but he could not. You then said, 'Don't run away. Give me the smokes.’ You were holding the hammer with the blue handle again. You took cigarette packets and put them in a green bag, which was Charge 11, armed robbery, and a related summary charge of committing offence whilst on bail.
14 When the bag was full of cigarettes you asked for money from the till. Mr Mohammed opened the till and about $200 in cash was taken by you. The total value of the cigarettes and cash was approximately $1,000. Mr Mohammed had pressed the distress button. You asked to enter the manager's office, but Mr Mohammed said he did not know the code. You have asked for a high-five, but it was refused by Mr Mohammed and you left.
15 On 14 April 2022 police executed a search warrant at your home in
Tylden Way in Truganina. You were arrested. They located items in your bedroom which included the green bag with the cigarette packets, other cigarette packets, gloves, $390 in cash, mobile phones, clothing which matched the CCTV, a black backpack, a motorcycle helmet and a hammer with a blue handle, and a balaclava.
16 You exercised your right not to make any admissions or no comment when you were interviewed by police. At the time of these offences, you were on bail for other offending. You have been in adult custody from the time of your arrest on 14 April 2022, that is a total of 195 days.
Victim impact statement
17 In this case the victims Tata and Peeta have filed victim impact statements. They are the victims of your offending in respect of Charges 3 and 4 on the indictment. It is clear from those statements that their sense of personal security for one another, and their children, has been shattered by your offending. The health and mental wellbeing of all persons in that house has suffered a severe setback as a result of your offending. They have placed improved CCTV and signs on their house so that only family members and people known to them come to the front door. The children are anxious about their security within the family home and have ceased playing in the street with other children in that street. The impact of your criminality on this family has been detrimental to all of them.
Your personal scircumstance
18 You are 20 years old; soon to turn 21. You were born in Samoa. You live with your parents, your elder half-brother and your younger sister. At five years of age your family moved to New Zealand from Samoa. You initially lived in Auckland. Your family then moved to Marton where you commenced your primary education. There was a culture of violence within your family, including from your father, half-brother and mother. Your father drank heavily and was a very violent man. In order to break the cycle of violence, drinking, and police attendance, your parents then decided to move the family to Australia when you were aged 13.
19
You initially lived in Craigieburn at a relative's house and later moved to Tarneit. Your father was employed as a slaughterman in an abattoir in the Tarneit area. You attended Baden Powell College in Tarneit for Years 7,
8 and 9. You moved to Tarneit Secondary College for Years 10 and 11. You completed VCAL subjects with an interest in mechanics. In Year 11 you were expelled from school. At aged 16 you were working at a wholesale fish company. You have worked and contributed financially to your family during and since your school days.
20
When you were 18 you had two court appearances in quick succession. The first appearance was for property damage and related offending which resulted in a fine without conviction. Within a month you were back before the Sunshine Magistrates' Court for carjacking, robbery and related offending. You were convicted and placed on a 12-month community corrections order (“CCO”) with work conditions, drug treatment and mental health assessment. You completed the CCO without incident and offended
12 months later. These are the matters here before the court now.
21
In the year immediately before your offending you had worked as a picker and packer for Kmart. You first used cannabis when you were 17 years of age. By 18 years of age, you were a regular user of cannabis. You have told
Mr McKinnon, a forensic psychologist, that you were under the influence of cannabis during the offending that brings you to this court. You are currently on remand in Fulham Prison. You have a job of food distribution within the prison. You have engaged in courses whilst you are in custody at the prison. Due to the distance from your family, you have not had face-to-face visits from them.
22 Mr McKinnon, the consultant psychologist, has examined you for the purposes of this proceeding. His report, which was dated 20 September 2022, was Exhibit 2 on the plea. He assessed your general cognitive function at the lower end of the adult range. He has diagnosed you as having the following disorders: (1), complex PTSD and (2), substance abuse disorder. You have expressed remorse to Mr McKinnon about the impact of your offending on your victims. You gave a history of using cannabis and alcohol prior to the offending in this case.
Sentencing considerations
23 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
24 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics of the sentences. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.
25 You have pleaded guilty to these charges. The plea of guilty was indicated in the circumstances of your case at a relatively early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
26 Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your part. Your plea of guilty has relieved your victims of the stress and inconvenience of giving evidence in a committal or a trial.
27 Your pleas of guilty have also a further utilitarian value because the plea is given at times due to the COVID-19 pandemic. You have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. The Worboyes discount, as it is called, applies to your sentencing process.
28 In addition, it is relevant to take into account the impact of the lockdown restrictions that have been imposed as a result of the COVID-19 pandemic and have been applicable to you and, indeed, other prisoners in Victoria whilst in custody. As a result of those restrictions, you have not had the opportunity of contact visits with your family. This is particularly onerous on you as you are young and this is your first time in custody.
29 You are a youthful offender. It is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored and take into account all other sentencing considerations to promote your rehabilitation. This approach serves the interests of the individual offender and the community.
30 In the case of Mills the three propositions about sentencing of youthful offenders is set out. Youth of an offender, particularly a first offender, which is not you, should be a primary consideration of a sentencing court where the matters properly arise. The second one is in the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may, in fact, lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as you the offender. In your case that will be reflected in a non-parole period. The third proposition is a youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effects of his past criminality. The benchmark of what is serious and just, defines adult imprisonment may be quite high in the case of a youthful offender where the youthful offender has not previously been incarcerated, a shorter term of imprisonment may be justified.
31 The last proposition in particular is a general principle expressed in s5(4) of the Sentencing Act. In more recent times the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley President Maxwell said as follows:
'Mills constantly reminds sentencing courts, and this court on appeal, that there is a great public benefit in the rehabilitation of an offender, and in maximising the prospects that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others DPP may point towards a period, or a long period of imprisonment, rather than a non‑custodial sentence. Thus understood, the latter cases of the DPP v Lawrence and R v Nguyen are not to be viewed as "Excluding the principles of Mills" but simply as instances of how those principles are to be applied.
'As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of cases, however, general deterrence may have a particularly important part to play. The present case is of that kind. Violence of this kind [and that is what this case is about here], in the circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence may vary with the circumstances of each case.'
32 That last part is applicable in your case. Your offending calls for a measure of general deterrence.
33 These issues were recently considered in Azzopardi v The Queen by Justice of Appeal Redlich, as he then was, and Justices of Appeal Coghlan and Macaulay agreed with him, and they said as follows:
'The general proposition which flows from these authorities is that where the degree of criminality of the offences requires sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.'
34 Your offending is very serious. The maximum sentence for each charge set down by Parliament clearly indicates how serious your offending is viewed by the community. The offending is compressed into a period of over three separate days. The indicators of the seriousness are:
(1) you have offended against six sets of victims in an alcohol and drug‑fuelled rage, as I would describe it;
(2) the offending is all at night-time;
(3) on occasions you are masked;
(4) you were armed with and used a hammer as a weapon;
(5) on three separate occasions you offended at people's homes;
(6) on two occasions you offended at soft targets, as I describe them, they are the convenience stores part of petrol stations;
(7) on a single occasion you offended against a civilian in the street working as an Uber delivery driver; and
(8) your offending encompasses violence, dishonesty and attacks on property and persons.
35 All of this offending occurred whilst you were on bail. You were acting as a one-man crime wave in your own suburb. The only explanation put forward is that you have transferred your anger about your father's alcoholic-driven violence onto the victims of your offending whilst you were under the influence of alcohol and cannabis.
36 I assess your prospects of rehabilitation as guarded due to your rapid escalation to very serious offending between the ages of 18 and 20. You successfully completed a CCO by March 2021. You are young and enjoy the support of your mother. Your father's influence in your life is problematic given your history of his violence to you and other members of your family. As I say, your prospects of rehabilitation are made more problematic due to your drug and alcohol use.
37 I have taken into account the risk, as it has been described, of your deportation upon release. That is a matter for administrative decisions by other authorities not in my control. It is a risk that you face, but nevertheless you also have the same chance, or a chance, of remaining within this country. I am unable to determine what that chance is.
38 I have had you assessed for a Youth Justice Centre order. I have received a pre‑sentence report, which was dated 24 October 2022, and I have marked that Exhibit “C”. In short, you have been assessed as unsuitable for a Youth Justice detention order. The reasons for your unsuitability are set out in that report. In summary, the reasons are as follows:
(1) your offending is increasing in severity and frequency;
(2) you demonstrated a level of planning to rob others for financial gain;
(3) you had poor compliance with the previous CCO. A breach is to be heard on 31 January 2023;
(4) you have demonstrated limited victim empathy;
(5) you have had a custody incident with a staff member whilst on remand;
(6) you are at the upper end of chronological and developmental age, that is, you are 21 on 29 October this year;
(7) you are unable to delay gratification for your financial gain;
(8) you have managed adult custody since your remand date, albeit your first time in custody; and
(9) Mr McKinnon assesses you as coping in prison despite his diagnosis of your PTSD and substance abuse disorder.
39 The prosecutor submitted that a Youth Justice order was within the sentencing range in your case at the date of your plea. Your offending is, as I have said before, very serious and the level of violence was frightening to each of your victims. I have assessed that the imposition of a Youth Justice Centre order would be setting you up to fail in one regard and of itself would not properly reflect the level of your criminality over the three-day period of your crime wave. I have taken into account your youth and the fact that this is your first term in custody when imposing the cumulation between the sentences in respect of each charge.
40 The sentencing principle of totality also directs that a court moderate the cumulation of individual sentences so as to avoid imposing a crushing sentence upon you. In the course of your plea hearing, I raised with counsel and the prosecutor whether an aggregate sentence would be appropriate in your case. I have considered an aggregate sentence but the number of offences, the number of individual victims and the offending occurs over three separate days, makes such a disposition inappropriate.
41 The sentencing principles of general and specific deterrence, denunciation of your actions, just punishment, and a combination of the protection of the community and your rehabilitation, dictate that the only appropriate sentence is a total effective sentence with a non-parole period. The Adult Parole Board will be able to supervise and direct your continuing rehabilitation upon your release from custody.
42 Will you stand, please. I am dealing with the sentence in respect of the indictment first.
43 Charge 1, you are convicted and sentenced to one year imprisonment.
44 Charge 2, you are convicted and sentenced to nine months' imprisonment.
45 Charge 3, you are convicted and sentenced to three years' imprisonment - that is the base sentence.
46 Charge 4, you are convicted and sentenced to nine months' imprisonment.
47 Charge 5, you are convicted and sentenced to two years' imprisonment.
48 Charge 6, you are convicted and sentenced to one year imprisonment.
49 Charge 7, you are convicted and sentenced to two years' imprisonment.
50 Charge 8, you are convicted and sentenced to one year imprisonment.
51 Charge 9, you are convicted and sentenced to two years' imprisonment.
52 Charge 10, you are convicted and sentenced to nine months' imprisonment.
53 Charge 11, you are convicted and sentenced to two years' imprisonment.
54
I will now deal with the accumulation. The base sentence, as I said, is
Charge 3, which is three years' imprisonment. To that is to be cumulated and cumulated on one another from Charge 1 two months, Charge 2 one month, Charge 5 three months, Charge 6 one month, Charge 7 three months,
Charge 8 one month, Charge 9 three months, Charge 10 two months,
Charge 11 three months.
55 That is a total effective sentence of four years and seven months' imprisonment. I fix a non-parole period of three years.
56 Now, before I will just go on, in relation to the related summary charges: Charges 3, 4, 7, 11, 16, 20 and 23, you are convicted and sentenced to one month on each of those charges. All of them are to be served concurrently with the sentence I have just announced.
57 So the total effective sentence is four years and seven months, with a non‑parole period of three years' imprisonment.
58 Section 6AAA declaration: but for your plea of guilty I would have sentenced you to six years and nine months, with a four year and six-month non-parole period.
59 I declare that you have served 195 days pre‑sentence detention.
60 And I have signed a disposal order.
61 On Charges 6 and 8 of the indictment charges, all licences are cancelled and you are disqualified for a period of 12 months from 26 October 2022.
62 Can I ask counsel just to check the arithmetic first of all.
63 MR GOODENOUGH: Your Honour, I apologise, I missed what the cumulation on Charge 4 was.
64 HIS HONOUR: Charge 4, none.
65 MR GOODENOUGH: None. Then I didn't miss it. Thank you, Your Honour.
66 HIS HONOUR: You can take a seat. Does that add up?
67 MR GOODENOUGH: We think that's right, Your Honour.
68 HIS HONOUR: Thanks. And it was only just a disposal order sought, wasn't it?
69 MR GOODENOUGH: Yes, Your Honour.
70 HIS HONOUR: Thanks, Officer, you can remove the prisoner. Thanks, counsel, for your assistance.
71 MR GOODENOUGH: Thank you, Your Honour.
72 MS BYRT: If Your Honour pleases.
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