Director of Public Prosecutions v Tui
[2023] VCC 869
•25 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 22-00819
CR-22-01628
CR-22-01539
CR-23-00060
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TJ TUI |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2023 and 2 May 2023 | |
DATE OF SENTENCE: | 25 May 2023 | |
CASE MAY BE CITED AS: | DPP v Tui | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 869 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Home invasion – theft - armed robbery – dangerous or negligent driving whilst pursued by police – obtaining property by deception – carjacking – conduct endangering persons – possession of a drug of dependence – handling stolen goods – causing injury intentionally – assault custodial officer on duty – youthful offender – whether rehabilitation must give way to deterrence and denunciation.
Legislation Cited: Road Safety Act 1986; Sentencing Act 1991.
Cases Cited:Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; Bugmy v R (2013) 169 CLR 571; DPP v Malikovsky [2010] VSCA 130; Hogan v Hinch (2011) 243 CLR 506; Mohamed v The Queen [2022] VSCA 136; Papachristodoulou v The Queen [2017] VSCA 284; R v Mangelen [2009] VSCA 63.
Sentence: 7 years and 10 months’ gaol with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Butcher | Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1
T J Tui, you have pled guilty to the following offences. One charge of home invasion, 10 charges of theft, one charge of armed robbery, one charge of dangerous driving whilst pursued by police, three charges of obtaining property by deception, one charge of carjacking, one charge of conduct endangering persons, one charge of possession of a drug of dependence, one charge of handling stolen goods, one charge of causing injury intentionally and
one charge of assaulting a custodial officer on duty.
2 In addition, you have pleaded guilty to the following summary matters.
3 In relation to case number CR-22-01539. One charge of driving whilst disqualified, one charge of failing to render assistance, one charge of failing to give name and address to the owner of damaged property subsequent to a motor accident and one charge of deal with property suspected of being proceeds of crime.
4 In relation to case number CR-22-01628, one charge of failing to render assistance and one charge of driving whilst disqualified.
5 In relation to case number CR-22-00819, one charge of committing an indictable offence whilst on bail.
6
The maximum penalties for these offences are as follows. Home invasion,
25 years imprisonment, and s5(2)H of the Sentencing Act 1991 applies and that requires a custodial order; theft, 10 years' imprisonment; armed robbery,
25 years' imprisonment; dangerous or negligent driving whilst pursued by police, three years' imprisonment; obtaining property by deception, 10 years’ imprisonment; carjacking, 15 years' imprisonment; conduct endangering persons, five years' imprisonment; possession of a drug of dependence where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose related to trafficking in the drug of dependence, up to one year's imprisonment or 30 penalty units or both, otherwise a penalty of 400 penalty units or level 6 imprisonment or both; handling stolen goods, 15 years’ imprisonment; causing injury intentionally,
10 years' imprisonment - this is a category one offence and s5(2)G of the Sentencing Act applies, and therefore, a custodial order must be imposed. As the victim was a custodial officer, a custodial term of not less than six months' imprisonment must be imposed for this offence, pursuant to s10AA(4) of Sentencing Act, unless a special reason exists, pursuant to s10A; assaulting a custodial officer on duty, five years' imprisonment.
7 The maximum penalties for the summary offences are as follows.
8 Drive whilst disqualified, 240 penalty units or two years' imprisonment.
9
For failing to render assistance and failing to give name and address, the maximum penalty for these offences is determined by s61 of the Road Safety Act 1986. This section imposes obligations on drivers in the event of an accident resulting in injury or property damage. Different maximum penalties apply to different circumstances. Here, you have been charged for breaching various driver's obligations in instances involving property damage, not injury. In any event, I find that there is insufficient evidence to conclude that anyone was injured as a result of the accidents in question. Section 61(5) provides for a single offence for the breach of any provision of s61 in an instance without injury. Here you have pleaded guilty to two summary charges of failing to render assistance and one summary charge of failing to give name and address. You have no prior convictions for these offences. Accordingly, one of the summary charges for which I am to sentence you will be the first offence against this section and the other two will be subsequent offences. The maximum penalties for these offences are therefore as follows.
For the first offence, 14 days' imprisonment or five penalty units. For the subsequent offences no less than 14 days’ imprisonment and no more than
one month's imprisonment or 10 penalty units.
10 For dealing with property suspected of being the proceeds of crime, the maximum penalty is two years’ imprisonment and for commit an indictable offence whilst on bail, three months' imprisonment or 30 penalty units.
11 Your offending was summarised by the prosecution at your plea.
12
Charge 1, home invasion. On 2 September 2021, you and three co-accused, Fawwaz Al-Naqdi, Jehad Darwich and Tamara Dodd, attended at the home
of the complainants Braeden Macarcio and Donna Tolliday, located in Dimboola Road, Broadmeadows.
13 You and your co-accused arrived at 3.30 am and at this time both Mr Macarcio and Ms Tolliday were at home. The four of you forced entry by kicking the front door. Tolliday fled by jumping over the fence and sought assistance from neighbours. Macarcio remained inside and asked Darwich, Al-Naqdi and you what you were all doing.
14 Al-Naqdi threatened him with a taser and he retreated into the kitchen. You and your co-accused began to search the belongings in the living room. Al-Naqdi placed some items into his jacket pocket and you placed some into your hooded jumper.
15 Charge 2, theft. When leaving the address, you, Darwich and Dodd were in possession of Macarcio's car keys, necklace, bags of clothing and a Samsung mobile phone. The stolen items were placed into a RAV4 and you drove away in that vehicle. The value of the stolen items was $1,000.00.
16
Charge 3, theft. Al-Naqdi was handed the keys to Tolliday's car, a blue
Holden Trax, and drove away in it. Police located the stolen Trax the next day. It had been abandoned outside an address in Meadow Heights. Subsequent forensic analysis revealed your fingerprints and palm prints on the vehicle.
You were located the following day by police and arrested.
17
Summary Charge 4, CR-22-00819, commit indictable offence whilst on bail.
At the time of committing the home invasion you were on bail in relation to
two matters. Moreover, there were two other matters for which you had previously been on bail but because you had failed to appear in accordance with bail outstanding arrest warrants were in place.
18 Charge 4, theft. On 24 November 2021, a white Volkswagen Golf belonging to Lucinda Ralph was stolen from an address in Wilkes Avenue, Malvern. The next day at approximately 1.30 pm, you drove the stolen vehicle into the carpark of a Bunnings Warehouse store located at 700 Hume Freeway, Craigieburn.
19
Charge 5, armed robbery. You can be observed on CCTV footage alighting from the vehicle and entering the Bunnings store. Inside you went to the tool section and loaded various items into your trolley, including a biscuit cutter, a circular saw and a hammer. The total value of the items was $1,331.00. Before leaving the tool section you picked up the hammer. You wheeled the trolley towards the exit of the store and staff requested that you pay for the items.
You threatened them with the raised hammer. At one point you raised the hammer at loss prevention officer, Chad Badaoui, and said, 'I swear on my mum's life, I'll fucking hit you'. You wheeled the trolley outside and loaded the items into the stolen Volkswagen.
20
Charge 6, dangerous driving whilst pursued by police. Summary Charge 13, CR-22-01539 fail to render assistance. Summary Charge 15, CR-22-01539, fail to provide details. You drove out of the Bunnings carpark at speed. Police attended the Bunnings store. Two patrolling police officers received information regarding your fleeing the store in a Volkswagen Golf. They observed you travelling southbound and stopped at a set of traffic lights.
The Volkswagen was bearing the stolen plates marked 1MC-6EI.
21 The officers turned on their lights to signal for you to pull over. You drove off at a fast rate of speed and turned into Cooper Street. You were observed on Cooper Street by two other police officers. They observed you driving around traffic and mounting nature strips. You crossed the grass of a median strip as you attempted to do a U-turn and collided with the front driver's side of another vehicle. The other vehicle was driven by Aisha Khalil and also in the car were Khalil's sister and three children. The children were aged 2, 6 and 12.
22
The collision pushed Khalil's car into the left lane where it collided with another vehicle driven by Sumeyye Kocak. Also, in this vehicle were three children
aged 10, 8 and 6. Ms Khalil's vehicle was driven at 60 kilometres an hour when you hit it. Ms Kocak's vehicle was travelling at 70 kilometres per hour when it was struck by Ms Khalil's vehicle.
23 As a result of the collision, Ms Khalil's vehicle was written off by RACV Insurance. Ms Khalil attended a doctor's clinic to obtain scans and Ms Kocak suffered from back pain, which she was advised was most likely due to whiplash.
24
You were observed exiting the Volkswagen and running away. Police were contacted and attended at the crash scene. They patrolled the area looking for you. A small cut out in a wire fence was found in the yard nearby. About
15 metres from the cut out a black jacket was found on the ground, matching the jacket you were seen wearing at Bunnings Warehouse.
25 Summary Charge 17, CR-22-01539, deal with property suspected of being proceeds of crime. The stolen Volkswagen Golf was processed by police and a number of stolen items were found in it. These consisted of hand tools, power tools, false registration plates marked TTG 100, other false registration plates marked 1MC 6EI and a video camera. At the time of driving the stolen Volkswagen Golf you were disqualified from driving pursuant to a court order dated 26 October 2021.
26
On 14 December 2021, you entered 3E Fitness at 15 Howes Street, Airport West. You found car keys belonging to a Hamish Jones in the bag storage area.
You found Jones' vehicle parked near the fitness centre and unlocked it and took a wallet containing Jones' Commonwealth Bank card, Bendigo Bank card, driver's licence and $50 in cash. Your theft of the wallet, its contents and the car keys constitute the offending under Charge 7.
27 Charge 8, obtain property by deception. Using one of Mr Jones' bank cards you then made three purchases totalling $176.50 at a supermarket and a service station.
28 Charge 9, theft. Charge 10, theft. On 21 December 2021, at about 5.30 am, Paul Meade parked his vehicle, a grey Kia Seltos, in the driveway of his workplace in Epping. He exited the vehicle to open the gates, leaving the keys in the ignition and the motor running. A white sedan quickly drove up behind Meade's vehicle. You exited the sedan, got into the driver's seat of Meade's vehicle and took off with it. Paul Meade had left his wallet containing bank cards and personal identification inside his car. Your theft of the car comprises the offending under Charge 9 and your theft of these items comprises the offending under Charge 10.
29 Charge 11, obtaining property by deception. Using one of Mr Meade's bank cards you made four purchases, totally $363.88 at various stores in Greenvale and Thomastown.
30 Charge 12, theft. At about 8.50 am that day a Joseph Farah parked his Porsche Cayenne outside a gym in Airport West. At 9.52 am a blue Kia Stinger pulled up alongside Farah's vehicle. You got out of the Kia, opened the driver's side door of Farah's vehicle and removed a backpack containing two ANZ Bank cards, one NAB Bank card, one American Express Bank card, a driver's licence, a Google Pixel laptop and $2000.00 in cash.
31 Charge 13, obtain property by deception. You then went to Highpoint Shopping Centre and made eight purchases using Mr Farah's American Express card. The purchases totalled $1,062.55.
32 Charge 14, carjacking. Later, at approximately 12.24 am, Christopher Dingey attended at an address on Sydney Road, Brunswick. He was there to pick up his partner Shweta Balasubramanian. He parked his Audi A5 sportscar and exited leaving his keys in the vehicle. He was standing by the vehicle when a white Kia Cerato sedan stopped on the other side of the road. You got out and approached Dingey's car. You said to Dingey, 'Get the fuck away or I'll cave your head in'. Dingey moved back and you got into his vehicle. You drove away followed by the Kia Cerato.
33 Charge 15, theft. Inside the stolen vehicle was Dingey's driver's licence and his partner's Qantas card, which you took.
34
Charge 16, conduct endangering persons. At approximately 12.26 am you were driving Dingey's vehicle at a fast rate of speed. You entered the intersection of Blyth and Nicholas Street, passing through a red light and colliding with a Holden Camry. The Camry was driven by Pavan Nerella and James Chambers was sitting in the rear driver's side seat. The vehicles continued across the road and collided with a Toyota Prius, driven by
Akashdeep Singh.
35 Summary Charge 18, CR-22-01628, fail to render assistance. Following the collision, you exited Dingey's vehicle and ran west on Blythe Street. You were eventually picked up by the Kia Cerato and left the scene.
36 Summary Charge 19, CR-22-01628, driving whilst disqualified. At the time of driving Dingey's vehicle you were disqualified from driving. This was pursuant to a court order made on 26 October 2021 which I have mentioned already in relation to Summary Charge 2 in case number CR-22-01539.
37
Charge 20, theft. On the previous day, 21 December, a Kia Stinger belonging to Kayla Danielidis was stolen from Caltex in Kalkallo. On 22 December, at approximately 5.10 pm, Danielidis's partner, Aaron Bond, saw the car driving past him on his way home from work. Bond followed the vehicle to
Walsh Street, Broadmeadows, and contacted police. You were later found at the scene in the rear yard of a nearby property. You fled from police but were subdued.
38
Charge 17, possess drug of dependence. Charge 18, handling stolen goods. You were searched by police and a small bag containing approximately 1 gram of methylamphetamine was located. Also in your possession was a taxi driver card in the name of Mohamed Abdel-Wahed, an identification card in the name of ‘Peter’ and a Fitness First membership card. Although this fact does not form part of Charge 18, police also recovered cards the subject of Charges 10,
12 and 16.
39 Charge 19, theft. Police also located a key belonging to a white Kia Cerato, registered 1SY 1PL. This was a stolen vehicle located nearby.
40 Charge 21, causing injury intentionally. On 13 March 2022, you were being held on remand at Port Phillip Prison. As a result of information provided by the Prison Intelligence Unit, namely, that a fight might break out within the prison, a decision was made by a correctional officer, Daniel Payne, to lock down the prisoners 15 minutes early that night. The announcement of an early lockdown was made over the loudspeaker. After the announcement you approached Daniel Payne and began to argue about being locked down. You said to him, 'I'm not locking down. Just fucking try it'. You took up a fighting stance.
41 Payne pressed the duress alarm on his radio. A number of other prisoners intervened. You were ushered away by the other prisoners and walked upstairs towards your cell. Payne assisted with the locking down of the prisoners and moved into the common area. You were at the top of the stairs but then ran down towards him. You began punching Payne, with a punch connecting with his right eye. Payne suffered two lacerations above his eye. A significant orbital haematoma, a periorbital fracture of the eye and a base thumb fracture of his hand which required surgery.
42 Charge 22, assault custodial officer on duty. Members of the Tactical Operations Group intervened in the attack and deployed oleoresin capsicum spray. You ran off before being detained by members of the Tactical Operations Group. As you were being detained you punched Tactical Operations Group officer Luke Clarke and resisted before being restrained.
43 Mr Barreiro, on your behalf, conceded that a lengthy gaol term was appropriate, one with a head sentence and non-period. He did not rely on the principles in Bugmy,[1] but drew the court's attention to your childhood which was affected by disadvantage and dysfunction, which explained your exposure to the criminal justice system from the age of 15 and the fact that you have numerous prior convictions and numerous prior sentences of detention since your mid-teens.
[1]Bugmy v R (2013) 169 CLR 571.
44 He urged the court to give full effect to the principle of totality given the number of charges and the grave nature of some of them. Your offending spans three months and he submitted it must be looked at as a whole.
45 As to the home invasion it was submitted that you were not responsible for the physical assault on Mr Macarcio and you are not to be sentenced on the basis that you knew a co-offender had a weapon upon entry. Although you were an enthusiastic participant in the home invasion and the property thefts, themselves.
46 As to the armed robbery at Bunnings, Mr Barreiro stressed that the threatened application of force was not made from close quarters and that you were never near enough to your victim to instil in him a fear of imminent physical attack.
47 As to the assault upon Mr Payne, a custodial officer on duty, whilst conceding that this was a serious example of its type, Mr Barreiro pointed to the actions taken by fellow inmates to de-escalate the situation and to the fact that you were quickly subdued. I pause to note that this does not qualify as a mitigatory feature.
48 It was conceded that general deterrence and denunciation are important sentencing principles in your case. He also conceded the protection of the community is of consideration of 'high importance'.
49
Whilst conceding that you are not a young offender, for the purposes of the Sentencing Act 1991, you are still a youthful offender and the door to your rehabilitation should be kept open in keeping with the observations of
Justice of Appeal Redlich in Azzopardi.[2] Mr Barreiro drew the court's attention to DPP v Malikovsky and Mohamed v The Queen as authorities for the proposition that rehabilitation represents the best hope for the community that a person in your position will never again engage in violent behaviour.[3] He also submitted that just punishment and protection of the community must be balanced against the risk that a crushing sentence may ultimately do more harm to the community than good.
[2]Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372.
[3] [2010] VSCA 130; [2022] VSCA 136.
50
Mr Barreiro acknowledged that a long sentence is inevitable but argued in his written submissions that I ought to consider providing a relatively short
non-parole period, as this would provide you with the opportunity to be given supervision in the community, which would benefit your rehabilitation.
51
Mr Teo on behalf of the prosecution submitted that your offending in all the circumstances is serious and warrants a head sentence with a non-parole period. He emphasised that all of this offending occurred whilst you were subject to a community correction order. He informed the court you were made the subject of a community correction order on 6 May 2020 and that that order was cancelled on 22 October 2021. The home invasion occurred on
2 September 2021. You were then taken into custody. You were released from custody on 12 November 2021 and the armed robbery was committed within days of your release from custody.
52 Mr Teo disputed that the armed robbery was a low level example of its type. Your offending can be compared with armed robberies occurring at a petrol station where a protective screen shields the worker. Mr Teo argues that the latter type of offending is still considered serious.
53
Chad Badaoui, the loss prevention officer whom you threatened at
Bunnings Warehouse, provided a victim impact statement to the court.
He describes that your actions in Bunnings that day had a significant effect on his life. He had been working full time in that line of work since 2014. However, after your offending he lost confidence in his ability to continue working in security. He says his partner noticed he was withdrawn and not talking following the incident. After being involved in a subsequent incident working as a crowd controller he could no longer work in security. He is now worried about his employment prospects and the effect that your offending might have on his ability to care for his elderly mother.
54
A victim impact statement was also provided by Donna Tolliday, a victim of the home invasion. She asked that her victim impact statement not be read to the court but it is important for this exercise for me to summarise its contents nonetheless. She explains that she had wanted to read her statement aloud in court herself but she was too scared and, in any event, she never wants to see your face again. Her life has been significantly impacted by your offending. First, the home invasion terrified her to the point that she feared she would die.
She injured herself as she climbed the fence to escape. She could not kneel even 12 months after the event. Her right elbow was still sore to the touch and the tops of her toes were scarred.
55
In her statement she says she has become a completely different person.
She says she was once extremely friendly and had a bubbly personality.
Now she has lost trust in everybody. She has become what she describes as a 'nervous wreck'. She jumps at the slightest noise. She started taking Valium and antidepressants to cope with the emotional impact of your actions.
Her post-traumatic stress disorder has affected her relationship with her partner, Braeden and her children. She says that even the task of preparing her victim impact statement has her body trembling and her tears flowing.
56
Your personal circumstances were summarised in the psychological
report authored by Ms Pamela Matthews and Ms Dario Sizenko dated
8 September 2022 that was tendered on your plea.
57 You are the fifth of seven children. Growing up you experienced frequent violence between your parents and you reported to Ms Matthews and Ms Sizenko that you were often getting into fights with your father to defend your mother. Although your mother also engaged in physical discipline you indicated that you did not feel she was overly violent. Your father was also a heavy drinker, drinking every night.
58 You also described to psychologist, Warren Simmons, who interviewed you on 29 September 2021, that your childhood was characterised by significant financial distress. You recall having the gas and electricity cut off, not having enough to eat and being beaten by your father when he was drunk. You recount a handful of outings either to the beach or the cinema during your entire childhood and these were organised by your older sisters when they were working.
59 Despite these privations you played rugby for the Melbourne Storm development team when you were 12 and performed well academically at Coolaroo South Primary School. At age 12 your mother had a stroke, resulting in personality changes and a subsequent deterioration of your relationship with her. She was left with cognitive impairments and gradually declined. She developed a paralysis and became unable to care for you. This led to you leaving home, staying on the streets or with friends for the next several years. You lived for a time in a tent in a park in Werribee.
60
You reported that at school you performed well academically but had poor behaviour. You left school in Year 8 but completed Year 10 through
Parkville College whilst in custody. You started working at the age of 14, primarily as a labourer. You attempted a carpentry apprenticeship but frequent disagreements with employees and co-workers meant you were unable to complete the apprenticeship and you changed jobs frequently.
61
Your most recent relationship began when you were 16 years old. You have a daughter from this union who is now five years old. You describe this partnership as violent and troubled, as both you and your partner were using drugs. The relationship came to an end due to your partner's infidelity.
You reported that you started having regular contact with your daughter whilst in custody.
62 Regarding your substance consumption, you reported smoking cigarettes at the age of nine, cannabis at the age of 10, smoking 7 grams of cannabis a day until the age of 18. You commenced using methylamphetamine at the age of 12, smoking it daily until the age of 15. You also reported occasional MDMA and prescription medication use from the age of 14 or 15. You commenced using GHB at the age of 19, consuming up to 18 millilitres per day.
63 You reported that you have attempted withdrawal from the consumption of methylamphetamine, your longest period being 12 months at the age of 17. Likewise, you attempted to withdraw from consuming GHB, although you would experience severe withdrawal symptoms if you did not consume the substance daily. You also reported that you experienced a number of GHB overdoses between 2018 and 2021, although you did not seek any medical attention for any of them.
64 You have also had trouble managing gambling habits, using poker machines typically under the influence of methylamphetamine, at times spending up to $3,000.00.
65 Regarding your physical health, you reported that you have been in a number of car accidents and have suffered from multiple head injuries as a result of fights. You have not sought medical assistance for any of these but you suggested that it is likely that you have been concussed on several occasions. You reported to Matthews and Sizenko that you experienced bouts of low mood and irritation throughout your life and you experienced episodes of feeling suicidal when you were younger and during previous incarceration periods. You attempted suicide around the age of 16 years. Despite this, you have not received any formal diagnoses.
66
Your assault of Mr Payne is a serious instance of the offence of intentionally cause injury and your moral culpability for that offence is high. He was a corrections officer working in a volatile and highly charged environment, endeavouring to keep the peace. You targeted him, charged at him and struck him viciously. This is a category 1 offence under the Sentencing Act 1991 and s5(2)G applies. Section 10AA(4) of the Sentencing Act requires that a term of not less than six months be imposed in the absence of a special reason.
No special reason has been identified here.
67 The armed robbery is a mid-range example. I accept that Mr Badaoui was not placed in imminent danger but the effect upon him of your offending has been profound. It took place during the day. You were not in company and not disguised. Mr Badaoui had the support of other staff members but you were very aggressive with him and your actions were witnessed by other shoppers. This is not a category 2 offence under the Sentencing Act 1991 and s5(2)H does not apply but your offending nonetheless calls for a substantial gaol term.
68 The carjacking was brazen, flagrant and intimidating. This is a category 2 offence under the Sentencing Act 1991 and s5(2)H of the Act applies. None of the exceptions to the presumption of immediate imprisonment are engaged in your case.
69
The charge of dangerous or negligent driving whilst pursued by police to which you have pleaded is an especially grave example of that type of conduct. You sped in the stolen car, entered an intersection against a red light, and caused a collision between two vehicles, endangering six children and placing
two members of the community in danger of serious injury. The gravity of that offending is high. Your driving was dangerous.
70
Your participation in the invasion of Mr Macarcio's home was marked by contemptuous disregard for his privacy and his property. It is a serious example of a serious offence. You and your co-offenders kicked down his front door at approximately 3.30 am, threatened him with violence and helped yourselves liberally to his possessions. This offending occurred at night. He was overwhelmed and outnumbered. The effect on Ms Tolliday was far reaching. This is a category 2 offence under the Sentencing Act 1991 and s5(2)H applies to mandate the imposition of a gaol term, unless one of the exceptions in
s5(2)H (a) to (e) has been made out. No reliance has been placed on any of these exceptions in your case.
71 The various thefts and related dishonesty offences to which you have pleaded display a contemptuous disregard for the property of others.
72 You have pleaded guilty to all charges prior to a criminal trial, pleading to Charges 1-3 and 7-20 prior to any contested committal and pleading guilty to Charges 4-6 and 21 and 22 following a contested committal hearing. These pleas have the utilitarian benefit of saving the court from running a contested trial on each of these charges and for Charges 1-3 and 7-20 you have saved witnesses the burden of having to give evidence on these charges.
73
Although not at the earliest stages, I find that your pleas are early pleas of guilty and I have moderated your sentence accordingly. You have also pleaded guilty during a time where the courts continue to experience the effects of the
COVID-19 pandemic and thus your plea has additional utility, which justifies further mitigation.
74
You have an extensive and relevant criminal history. I should note, however, that the offending the subject of Charges 1-3 and of Summary Charge 7,
CR-22-00819, occurred prior to the date of the latest entry in your criminal history, namely, 26 October 2021.
75 Your offending consists of prior convictions for intentionally damaging property, theft from a shop, robbery and attempted robbery, intentionally causing injury, contravening a conduct condition of bail, breach of a youth supervision order, obtaining property by deception, obtaining financial advantage by deception, committing an indictable offence whilst on bail, breach of a youth attendance order, recklessly causing serious injury, assault with a weapon, criminal damage, theft, riotously assemble together, recklessly cause injury, assault with an instrument, intentionally damaging property, possession of a dangerous article in a public place, resisting a police officer, escape from lawful custody, contravening a family violence intervention order, unlicensed driving, assaulting an emergency worker on duty, stating a false name when requested, possessing methylamphetamine, dishonestly undertaking the retention of stolen goods, theft of a motor vehicle, dealing with property suspected of being the proceeds of crime, driving whilst disqualified and other offences.
76 Your extensive criminal history is disheartening and does not inspire confidence in your prospects of rehabilitation, although I note that you are still youthful and you still have time to change.
77 You were 21 at the time of the offending for which you stand to be sentenced and it was submitted by Mr Barreiro that I take into account your youth when I stand to sentence you. As mentioned, I was taken to the case of Azzopardi for the proposition that when sentencing youthful offenders, the law recognises the utility of rehabilitation. The Court of Appeal there distilled three principles that govern how youthful offenders stand to be sentenced:
“Firstly, young offenders being immature are therefore ‘more prone to
ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct …[4] (citations omitted)
“Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending …[5] (citations omitted)
“Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.”[6] (citations omitted)
[4]Azzopardi (n 2) at [34].
[5] Ibid at [35].
[6] Ibid to [36].
78 These principles have been widely cited and remain relevant. However, the Court of Appeal has also recognised that the youth of an offender can be given less weight in certain circumstances. In particular, the court in Papachristodoulou held that,
“ … the weight to be given to the youth of an offender, as a mitigating circumstance, generally is reduced where the offence committed by the offender is serious, and particularly where the offence is of a kind commonly committed by offenders who are young and immature. In such cases, it is recognised that the youth of the offender, while still relevant as a mitigating circumstance, must to a material degree give way to the requirements of general deterrence, specific deterrence and denunciation.”[7]
[7]Papachristodoulou v The Queen [2017] VSCA 284 at [37].
79 The courts have long recognised that serious offending may require that the rehabilitation of a youthful offender give way to principles of deterrence and denunciation.
80 It was submitted by the prosecution and conceded by Mr Barreiro that you stand to be sentenced as a youthful offender but not a young offender, as defined by the Sentencing Act 1991. These offences are characterised by an obliviousness of their consequences and a disregard for your own safety and those who stand in your way, a contemptuous disdain for the property of others and the damage you inflict on strangers who happen to encounter you, coupled with a loathing for those in authority who try to regulate your behaviour.
81 To the extent that your offending can be explained by impetuousness and an inability to reflect and exercise restraint, it may be said to be classically youthful and immature. Your criminal history is already extensive and runs to 30 pages. It makes for depressing reading.
82 You have been trialled on therapeutic dispositions, community-based orders, short sharp sentences and dispositions tailored to educate and rehabilitate you. Your offending has worsened. The gravity of this offending means that your rehabilitation needs to give way to denunciation and general deterrence.
83
Mr Barreiro conceded that you have guarded rehabilitation prospects.
This chimes with the assessment conducted by Ms Sizenko and Ms Matthews. In their report, the result of the IORNS test demonstrated high results on a number of risk assessments.
84
The prosecution added that this offending occurred whilst you were on existing community-based orders and that you committed an armed robbery within four days of your release from custody
in 2021.
85 Your prospects of rehabilitation are difficult to assess given your age. I was told that you had become an enthusiastic reader of self-help books, biographies and fiction whilst in custody. I was also told that you would like to become a Youth Worker upon your release. You completed Year 10 at Parkville College whilst you were in custody and that demonstrates that you have some academic potential and that you are capable of applying yourself to pro-social and self-improving objectives.
86 You have also re-established contact with your daughter and see her, your siblings and your father by video weekly. Your prospects of rehabilitation hinge on maintaining these connections which will provide you with structure and some stability on your release.
87 I intend to impose a sentence that provides for your rehabilitation but which reflects the gravity of your offending. I was taken to the case of Mangelin on your behalf for that court's reinstatement of the principles of totality.[8] And I quote:
“Historically, the principle of totality has been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender's criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentence and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences, so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved the sentence which the offender is required to serve will be moderated, so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.”[9]
[8]R v Mangelen [2009] VSCA 63.
[9] Ibid at [28].
88 I have taken into account the remarks of Justice of Appeal Redlich when considering issues of cumulation and concurrency.
89
Section 5 of the
Sentencing Act
1991 provides that the only purposes for which you may be sentenced are: A, punish you in a manner and to an extent which is just in all the circumstances; B, to deter you or others from committing similar offences in the future; C, to facilitate rehabilitation; D, to manifest the denunciation of your conduct; E, to protect the community; or, F, a combination of two or more of these purposes.
90 In your case the protection of the community and general and specific deterrence are important considerations. On this point it was submitted by
Mr Barreiro, that community protection is served through fostering your rehabilitation. I was taken to the case of Malikovsky where the court said, 'There is a vital community interest in maximizing the prospects for rehabilitation of an individual who has been convicted of a serious crime. The prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in violent behaviour.’[10]
[10]DPP v Malikovski [2010] VSCA 130 at [51].
91 To this I would add the comments made by Chief Justice French in the case of Hogan v Hinch: 'Rehabilitation, if it can be achieved, is likely to be the most effective guarantor of community protection and is clearly in the public interest.’[11]
[11]Hogan v Hinch (2011) 243 CLR 506, 537 at [32].
92 I will now sentence you, Mr Tui. Please stand.
93 T J Tui, I sentence you as follows.
94 On Charge 1, home invasion, three years' imprisonment. This forms the base sentence.
95 On Charge 2, theft, nine months' gaol. I order that be served concurrently with Charge 1.
96 On Charge 3, theft, 12 months' gaol, three months to be served cumulatively upon Charge 1.
97 On Charge 4, theft,12 months, three months to be served cumulatively upon Charge 1.
98 On Charge 5, armed robbery, three years, 12 months of which are to be served cumulatively upon Charge 1.
99 On Charge 6, dangerous driving whilst pursued by police, 18 months,
three months cumulative upon Charge 1.
100 On Charge 7, theft, four months, one month cumulative upon Charge 1.
101 On Charge 8, obtaining property by deception, four months, one month cumulative upon Charge 1.
102 Charge 9, theft, 12 months, three months cumulative upon Charge 1.
103 Charge 10, theft, six months, two months cumulative upon Charge 1.
104 On Charge 11, obtaining property by deception, six months, one month cumulative upon Charge 1.
105 On Charge 12, theft, 12 months, three months cumulative on Charge 1.
106 On Charge 13, obtaining property by deception, nine months, one month cumulative upon Charge 1.
107 On Charge 14, carjacking, 18 months, six months cumulative upon Charge 1.
108 On Charge 15, theft, six months, one month cumulative upon Charge 1.
109 On Charge 16, conduct endangering persons, 12 months, six months cumulative upon Charge 1.
110 On Charge 17, possession of a drug of dependence, four months to run wholly concurrently.
111 On Charge 18, handling stolen goods, three months to run wholly concurrently with the sentence in Charge 1.
112 On Charge 19, theft, 12 months, two months cumulative upon Charge 1.
113 On Charge 20, theft, 12 months, two months cumulative upon Charge 1.
114 On Charge 21, causing injury intentionally, 18 months, six months cumulative upon Charge 1.
115 On Charge 22, assault custodial officer, two months to run concurrent.
116 On Summary Charge 7, CR-22-00819, commit indictable offence whilst on bail, I convict and discharge.
117 On Summary Charge 13, CR-22-01539, failure to render assistance, I convict and discharge.
118 On Summary Charge 15, CR-22-01539, fail to provide details, one month’s gaol concurrent with the sentence in Charge 1.
119 On Summary Charge 17, CR-22-01539, deal with property suspected of being the proceeds of crime, two months’ gaol to run wholly concurrently with the sentence in Charge 1.
120 On Summary Charge 2, CR-22-01539, driving whilst disqualified, four months’ gaol, one month cumulative upon the sentence in Charge 1.
121 On Summary Charge 18, CR-22-01628, fail to render assistance, one month’s gaol to run concurrent with the sentence in Charge 1.
122 On Summary Charge 19, CR-22-01628, driving whilst disqualified, six months’ gaol, one month cumulative upon the sentence in Charge 1.
123 It follows that I sentence you to a total effective sentence of 7 years and
10 months’ imprisonment. I declare that you are not eligible for parole until you have served four years of that term.
124 You can sit down now, Mr Tui.
125 There are provisions in the Sentencing Act which deal with mandatory license cancellations and disqualifications. Moreover, s89A of the Sentencing Act provides a discretion to suspend or cancel existing licenses and to disqualify an offender from obtaining a license for any offence.
126 The prosecution submits that there is evidence that some or even all of
these offences were committed when you were under the influence of
drugs or alcohol. This evidence is as follows. At your apprehension on
22 December 2021, a small quantity of methylamphetamine was found on your person. On 23 December 2021, police attempted to conduct an interview with you but you said that you had not slept in three days due to being on a “bender” and needed to sleep before the interview as you were tired.
127 Given the three-day time period, this evidence would potentially relate to Charges 9 to 20 and Summary Charges 18 and 19 on CR-22-01628.
128 Reports provided by Warren Simmons and Pamela Matthews indicate a history of offending whilst under the influence of drugs, such that you have little recollection of having committed these offences.
129 Paragraph 2 of the Defence submissions dated 26 April 2023 state that you are before the court for offending which occurred whilst you were using a cocktail of illicit substances. There is insufficient material before me to permit a finding that your motor vehicle thefts, that is Charges 3,4, 9, 19 and 20, were committed under the influence of alcohol or drugs. Accordingly, I decline to make such a finding pursuant to s89C of the Sentencing Act 1991.
130 However, on Charges 3, 4, 9, 19, and 20, I disqualify you from obtaining a
motor driver's license for 12 months from today's date pursuant to s89(4) of the Sentencing Act1991.
131 In relation to Charge 14, I do not have sufficient evidence before me to find that your offending arose out of the driving of a motor vehicle whilst under the influence of alcohol or alcohol and a drug. I therefore decline to make an order pursuant to s87P(f)(vi) of the Sentencing Act 1991. However, pursuant to s89(3), I disqualify you from obtaining a motor driver's license for a period of 18 months and order this period of disqualification is to be served cumulatively upon the disqualification ordered for Charges 3, 4, 9, 19, and 20.
132 On Charge 16, again there is insufficient material before me to find that the conditions in s87P(f) are made out. I order that you be disqualified from obtaining a motor driver's license for a period of six months pursuant to s89A of the Sentencing Act 1991, cumulative upon the disqualification ordered for Charge 14.
133 As to Charge 17, possession of a drug of dependence, it was not asserted that your possession was for the purposes of trafficking and the evidence before me would not permit such a finding. I have therefore sentenced you on the basis that your possession of a small quantity of methylamphetamine was for your own use.
134 A number of disposal orders were sought by the prosecution. I understand those orders are consented to and I therefore make those orders.
135 Pre-sentence detention?
136 MS BUTCHER: Five hundred and nineteen days.
137 HIS HONOUR: Five hundred and nineteen days.
138 MR BARREIRO: That's agreed, Your Honour.
139 HIS HONOUR: Very good. I order that you have served 519 days by way of pre-sentence detention. 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 10 years’ gaol with a non-parole period of seven.
140 MR BARREIRO: As the court pleases.
141 MS BUTCHER: If the court pleases.
142 HIS HONOUR: Very well.
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