Director of Public Prosecutions v Tang
[2016] VCC 1631
•9 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01791
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILL TANG |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2016 | |
DATE OF SENTENCE: | 9 November 2016 | |
CASE MAY BE CITED AS: | DPP v Tang | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1631 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary, theft and associated offences – plea of guilty – youth offender – previously sentenced for similar offences to detention in a youth justice facility – sentencing considerations –increased detention in a youth justice facility
Legislation Cited: Crimes Act 1958, s18, s74(1), s77(11), s88(1); Bail Act 1977, s30B; Sentencing Act 1991, s32(1), s32(2), s6AAA
Cases Cited:Director of Public Prosecutions v Tang [2016] VCC 1160; Hogarth v R (2012) 37 VR 658
Sentence: Total effective sentence of two years and eight months’ detention in a Youth Justice Centre and disqualification from obtaining a license to drive a motor vehicle for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr N Power | James Dowsley & Associates Pty Ltd |
HIS HONOUR:
Introduction
1 Bill Tang, you have pleaded guilty to a number of offences. A summary of those offences is as follows:
· That you and Peter Paulino, on 23 April 2016, entered as trespassers of a building with the intent to steal therein, and at the time you knew that your co-offenders had with them an offensive weapon, namely an umbrella pole, contrary to s77(1) of the Crimes Act 1958, carrying a maximum penalty of 25 years’ imprisonment.
· That you and Peter Paulino, on 23 April 2016, recklessly caused injury contrary to s18 of the Crimes Act 1958, carrying a maximum penalty of five years’ imprisonment.
· That you and Peter Paulino, on 23 April 2016, stole a BMW X5 motor vehicle contrary to s74(1) of the Crimes Act 1958.
· That on 23 April 2016, you dishonestly handled stolen goods contrary to s88(1) of the Crimes Act 1958.
· That on 23 April 2016, you committed an indictable offence of aggravated burglary, recklessly cause injury, theft of a motor vehicle and handle stolen goods whilst on bail contrary to s30B of the Bail Act 1977.
Previous sentence
2 I sentenced you on 11 August 2016 to 18 months’ detention in a Youth Justice Centre on charges of aggravated burglary, theft of two motor vehicles and other items, dangerous driving and breach of bail. You are presently serving that sentence.
The present charges
3 The amended Prosecution Opening is very extensive and very detailed. It has been my practice to summarise the Prosecution Opening in some detail, but I will not do that on this occasion.
4 On 23 April 2016, you were in the company of Peter Paulino, who was 18, ‘EA’, who was 16, ‘JY’, who was 16, ‘WW’, who was 17, and ‘KD’, who was 16, when you found your way to Brighton East.
5 The adult male and female occupants (husband and wife) of a house in Brighton East were asleep, as were their two children. The male occupant heard several loud bangs at about 3.00am. The adult male and female occupants were woken by the loud bangs. The male occupant went downstairs to investigate the cause of the noise. He saw three young African males wearing hoodies. They were holding beach umbrella poles which they had taken from the side of the house.
6 A fight broke out between the adult male and the intruders. The adult male was screaming at the intruders to get out of his house. Blows were exchanged. The adult male was swinging his fists at the intruders. One of the intruders struck him to his shoulder with an umbrella pole. The intruders then left the house and were joined by other males, and those other males were probably you and Paulino.
7 The intruders, and perhaps you and Paulino as well, took rocks from the garden outside the house and began throwing them at the adult male. He continued swinging his fists at all of you.
8 The adult female was on the telephone to the police while this altercation was taking place. The police arrived at about 3:13am. The intruders and the other males scattered. The adult male saw his garage door open and one of the intruders driving his BMW X5 down the driveway. The adult male attempted to open the driver’s side door. He was dragged along as the car sped off. He suffered injuries to his shoulder, elbows, left hand, thighs, knees and feet as a result of being dragged along as the car sped off.
9 The prosecution does not allege that you entered the house. You have been charged with these offences because you were complicit or acting in concert with the intruders who entered the house, assaulted the adult male, and stole his car. The prosecution also does not allege that Paulino entered the house, so it must be that it was the other of your co-offenders who entered the house, or at least a number of them.
10 Police executed a search warrant at the family home of ‘EA’. You and two others were found in an alleyway behind the home of EA. You were eventually arrested and conveyed to a police station. Your mobile telephone was removed from you. An examination of it disclosed communication between you and number of your co-offenders.
11 Police executed a search warrant at your home. What they found was one grey Apple iPhone; one gold Apple iPhone; two silver Apple iPhones; one Apple iMac computer, and one black Toshiba laptop. Each of these items were traced to their owners.
12 You were interviewed by police. You initially denied being involved in the aggravated burglary at Brighton East. However, you admitted that you received the items found at your home. You said that they were given to you by ‘KD’.
13 After you committed the offences for which I sentenced you in August, you were granted bail. When you committed these offences, you were denied bail and you thus were remanded in custody.
Your plea
14 I provided your counsel with a copy of my Sentencing remarks[1] after you were arraigned. Essentially, the plea made on your behalf on this occasion adopted the plea material that was put before me on the previous occasion, and additionally, your counsel submitted that you should be detained in a Youth Justice Centre rather than an adult prison.
[1]Director of Public Prosecutions v Tang [2016] VCC 1160
15 I will summarise some of your background, because it is necessary to create the context of your background and how you have behaved while in custody to understand the basis upon which I will sentence you:
· You were born in Ethiopia on 27 January 1997. You are now 19 years of age.
· Your father passed away when you were six years of age. You have been raised by your mother. You are one of four children. You have a brother, who is 26 years of age, who was present in Court to support you, and three sisters, who are 23, 14 and 13 years of age.
· You completed your secondary education to Year 12 without incident. Otherwise there is nothing exceptional about your early life, nor your schooling.
· It was submitted that it was a combination of your lack of sophistication and maturity, and the fact that you lived in close proximity to your co-offenders, that you fell into their company and into this offending.
· I was provided with a letter from you dated 1 August 2016; a letter from Timothy Patterson, Youth Prison Mentor, dated 3 August 2016; three certificates from the Kangan Institute certifying completion of three courses; a note from the coordinators of Narcotics Anonymous that you had attended three sessions; and a prison progress report dated 8 August 2016 prepared by Ms Anne Hooker.
16 In my earlier sentencing remarks, I referred to Hogarth v R (2012) 37 VR 658 in which the Court of Appeal described a home invasion involving multiple offenders carrying weapons who intend to rob and injure victims as a particularly nasty form of criminal conduct. Those observations apply equally here.
17 The Court of Appeal made a number of observations which have relevance to you on this occasion. One of them is that the key indicator in the objective seriousness of this offence is the fact that the Parliament has fixed a maximum penalty of 25 years’ imprisonment. What is now abundantly clear to me is that the former sentencing practices have changed, and individuals who engage in aggravated burglary face the imposition of a very stern sentence.
18 In anticipation of the plea hearing, a pre-sentence report was obtained, dated 21 October 2016. This was prepared by a parole officer of Southern Melbourne Youth Justice and a team leader of the Parole and Custody Liaison Team of Southern Milne Youth Justice. The authors of that report consider that you are suitable for detention in a Youth Justice Centre. I will set out what they have said about all of which is no doubt based on a close interaction with you:
· You have taken responsibility for your actions and not attempted to minimise the seriousness of your offending.
· You have demonstrated an awareness of the impact of your offending on your victims.
· Your attendance at Youth Justice supervised appointments has been very good, and you have behaved appropriately and in an open and honest manner regarding your current circumstances, offending behaviour and general wellbeing.
· While in custody you have shown the utmost respect for staff and have not been involved in any negative events or incidents.
· You have demonstrated motivation to address factors relevant to your past offending and to engage in support programs aimed at improving your prospects of rehabilitation.
· You have positive goals for the future, and while in custody you have engaged positively in all activities and programs offered to you. You have expressed positive aspirations for your life when you are released.
· You have been supported socially and emotionally by your mother and your siblings.
· You have significant vocational experience and some work experience, and you appear to be motivated to resume your education and to obtain employment soon as you are able to.
19 The authors are no doubt individuals who are closely associated with young offenders. I accept their carefully worded observations of you which have led them to recommend that taking into account matters of age, prospects of rehabilitation, your impressionable and immature personality, and the undesirable influences you would be exposed to in an adult prison, that detention in a Youth Justice Centre is the most desirable outcome for you.
20 However, all that should not overwhelm the fact that while you were on bail for the charges on which I sentenced you in August, you went in company with the persons I have already referred to and engaged in the conduct which brings you before me again.
21 You were present in Court when the Victim Impact Statements were read. The statements of the male and female occupants of the house in Brighton East described a terrifying episode of the invasion of their home in the early hours of the morning. The male occupant had to fight off the intruders. The female occupant and one of their children were exposed to the injuries he suffered in fighting off the intruders and attempting to prevent the theft of his car.
22 To say that their life has been changed by this terrifying experience is an understatement. They no longer feel safe in their home. They react very differently to noises and to circumstances which previously they simply took in their stride. They have taken measures to make their home and the daily lives safer. Emotionally, their lives have changed very significantly.
23 You had no hesitation in receiving the mobile telephones and computers that one of your friends brought to your home and gave to you. You must have known they were stolen, and it is obvious you could not have cared less.
Sentencing principles
24 The major sentencing principle which applies in your circumstances is general deterrence. Individuals who think that invading people’s homes and assaulting them need to think twice, because it is now the case that they will face stern sentences for this kind of offending. Your conduct must be denounced in the most serious way, and the community must be protected from people like you who engage in this kind of offending. Specific deterrence also figures as a relevant sentencing principle, because this is the second time you have engaged in conduct of this kind, and your offending on this occasion is aggravated by the fact that you were on bail for the very same kind of offending at the time when you engaged in this offending.
25 There are a number of factors which your counsel referred me to which go to moderation of the sentence I must impose on you:
· You are to be regarded as a youth offender because you are only 19 years of age.
· You initially denied involvement in this offending, although you made admissions early on regarding handling the stolen goods. You eventually pleaded guilty at a special mention on 14 October 2016.
· Although you pleaded guilty to the major charges only recently, I accept that you have demonstrated some remorse by your pleas of guilty and from what I have read in the presentence report.
· Your counsel told me that you now understand that one way you can avoid becoming involved in offending of this kind again is to break your ties with your co-offenders. It is something you acknowledge that will be difficult for you to do, but something which you acknowledge that you must do.
26 It is fortunate for you that your detention in a Youth Justice Centre has been profitable, in that you have obtained the maximum benefit from your time there to the extent that the authors of the pre-sentence report are impressed by you, your attitude to your offending, and your insight into offending and the steps you need to take to avoid falling into this pattern of offending again.
27 However, the offences with which you have been charged are of the most serious kind. You are deserving of a stern sentence. Had it not been for the plea made on your behalf and the recommendations in the pre-sentence report, I was seriously considering sentencing you to a term of imprisonment in an adult prison.
28 I propose to sentence you to a period of detention in a Youth Justice Centre. In order to do that I must sentence you for the individual offences with which you have been charged.
29 The sentences I now impose on you are proportionate to the gravity of your offending in the light of the objective circumstances of your offending.
30 Please stand.
31 On the charge of aggravated burglary, you are sentenced to two (2) years’ imprisonment. This will be the base sentence.
32 On the charge of recklessly causing injury, you are sentenced to six (6) months’ imprisonment, with three (3) months to be served cumulatively with the base sentence.
33 On the charge of stealing the BMW motor vehicle, you are sentenced to six (6) months’ imprisonment, with three (3) months to be served cumulatively with the base sentence.
34 On the charge of handling stolen goods, you are sentenced to three (3) months’ imprisonment, with one (1) month to be served cumulatively with the base sentence.
35 On the charge of breach of bail, you are sentenced to two (2) months’ imprisonment, with one month to be served cumulatively with the base sentence.
36 You are disqualified from obtaining a license to drive a motor vehicle for a period of eighteen (18) months. The period of disqualification is to commence from today.
37 This is a total effective sentence of two years and eight months. I have paid due regard to each of the matters set out in s32(1) and (2) of the Sentencing Act 1991 in reaching the conclusion that rather than sentencing you to a term of imprisonment in an adult prison, that you should be sentenced to detention at a Youth Justice Centre. I order that you be sentenced to such detention for two (2) years and eight (8) months.
38 I have given account to the principle of totality by paying regard to the previous sentence of 18 months’ detention at a Youth Justice Centre, and the sentence I have just imposed on you for these charges.
39 The sentence which you are presently undergoing will automatically be served concurrently with the sentence which I have just imposed on you.
40 If it had not been for your plea of guilty, then, pursuant to s6AAA of the Sentencing Act 1991, I would have sentenced you to four years and three months’ imprisonment with a non-parole period of two years and three months.
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