Director of Public Prosecutions v Ulutui
[2022] VCC 1452
•2 September 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00671
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAKI ULUTUI |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July & 31 August 2022 | |
DATE OF SENTENCE: | 2 September 2022 | |
CASE MAY BE CITED AS: | DPP v Ulutui | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1452 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated burglary – Theft – Assault with a weapon – Armed raid of residence in company – Mid-range offending – Dispute concerning post-offending conduct as an aggravating factor – Deprived upbringing – Low intelligence offender – Institutionalisation – Effect of delay – Current sentencing practices – Significant pre-sentence detention – Suitability to undertake a CCO
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Barnes [2015] VSCA 293; DPP v Myers [2014] VSCA 314; R v De Simoni [1918) 147 CLR 383; Bava v The Queen [2021] VSCA 34; Salapura v The Queen [2018] VSCA 255; R v Newman and Turnbull [1997] 1 VR 146; R v Ashdown [2003] VSCA 216; The Queen v Nobile [2006] VSCA 211; Elsayed v The Queen [2019] VSCA 113; Bugmy v The Queen (2013) 249 CLR 571; Brown v The Queen [2021] VSCA 204; Hogarth v The Queen [2012] VSCA 302
Sentence: Total effective sentence of 4 years’ imprisonment – 2 year Community Correction Order – s 6AAA declaration – 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Saunders | Office of Public Prosecutions |
| For the Accused | Mr C. Hooper | Garde Wilson Lawyers |
HIS HONOUR:
1Laki Ulutui, you have pleaded guilty to the following offences:
(a) One charge of aggravated burglary, contrary to s 77 of the Crimes Act1958 (Vic), which has a maximum sentence of 25 years' imprisonment; and
(b) One charge of theft contrary to s 74 of the Crimes Act1958 (Vic), which has a maximum sentence of 10 years' imprisonment.
2You have also pleaded guilty to the following related summary offence, a charge of assault with a weapon, contrary to s 24(2) of the Summary Offences Act1966 (Vic), which has a maximum sentence of two years' imprisonment.
3
I sentence you on the basis of the summary of prosecution opening, dated
23 June 2022, which is an agreed summary. The following is drawn from that opening.
Factual Background
4On 26 February 2019, in company with several others, you took part in a pre-mediated armed raid on a private property. The victim of your offending was Mr McDonald, a glazier who resides at and runs his business from a property in Coburg North. One of your co-offenders Grace Hillier, had met McDonald on an online dating application. Ms Hillier and Mr McDonald had several conversations on that app, and in those conversation Mr McDonald disclosed that he owned and raced several motorcycles. In one of these conversations it was arranged that Ms Hillier would attend at Mr McDonald's address in Coburg North on the morning of 26 February 2019.
5
Early on that morning, you and Ms Hillier travelled from the south-eastern suburbs to Coburg North in a silver VE Holden Commodore, bearing stolen registration plates. At approximately 8.56 am, the vehicle parked outside Benton's Plumbtec on Dairy Drive, Coburg North around the corner from Mr McDonald's address.
Ms Hillier got out of the vehicle and walked to Mr McDonald's address. Ms Hillier arrived at Mr McDonald's address at 9 am and went inside. Once inside Ms Hillier covertly called your mobile and let the phone call run enabling anyone listening to hear what was occurring inside.
6After about 10 minutes Ms Hillier told Mr McDonald that she'd left something in her friend's car and Mr McDonald agreed that her friends could drop it off for her at his address. At Ms Hillier's request she accompanied Mr McDonald to look at his motorcycles at the rear of the building and asked him if the roller door to the building could be left open so that she could hear when her friends arrive.
7
Internal CCTV from Mr McDonald's address, depicts Ms Hillier following
Mr McDonald to the motorcycles on the ground floor while using her mobile phone. The following SMS messages between Ms Hillier and your phone number were later recovered from her phone. At 9.07 am Ms Hillier sent your phone number an SMS advising that, 'There's three grams plus a TV, MacBook, Mac computer and cash and tools.' At 9.12 am the following reply was sent from your phone number, 'Bike'. At 9.22 am, Ms Hillier sent your phone number an SMS advising that, 'The roller door will be open in two seconds'. One minute later the following reply was sent from your phone number, 'Yeah sweet, you wanna drive in'. And at the same time Ms Hillier replied, 'Up to you, roller door is open now.'
8The prosecution does not contend that this court is able to be satisfied beyond reasonable doubt that you were using the phone or that you were the person who responded to the messages sent by Ms Hillier. I do not, in those circumstances take this into account as an aggravating feature of your offending.
9
At 9.25 am, you drove the silver VE Holden Commodore around the corner to
Mr McDonald's address. As Mr McDonald and Ms Hillier were looking at the motorcycles, Mr McDonald observed you and another male walking up the driveway of his premises towards him (Charge 1 – Aggravated burglary).
10While you stood next to him, the other male in your company pointed a shot gun at Mr McDonald's head and yelled, 'Get on the ground and put your hands behind your back' (Summary Charge 24 – Assault with a weapon).
11Mr McDonald complied with the demands and laid down on the ground while the other male in your company pressed the shot gun at Mr McDonald's head, you bound Mr McDonald's hands together behind his back with an octopus or occy strap and you covered his face and eyes with a white cloth. While this was occurring, two other male co-offenders entered the premises next door, which was owned by a complainant, Mr Parker. You are not charged with any offences in relation to this entry.
12Police believe that Mr Parker's address was attended in error, with Mr McDonald's address being the intended target. Mr Parker observed the two further co-offenders on his CCTV system and at approximately 9.30 am he called emergency Triple 0, which triggered a police response.
13Shortly thereafter, the two male co-offenders left Mr Parker's address and entered Mr McDonald's premises to join you, Ms Hillier and the male offender who was armed with the shot gun, who still stood with it pressed against Mr McDonald's head. You and Ms Hillier then proceeded upstairs and began searching for and stealing items (Charge 2 – Theft).
14At 9.38 am, you exited Mr McDonald's address and entered the driver's seat of the silver VE Holden Commodore which was parked in the driveway of the premises. You, in company with one of the male co-offenders accelerated away from the address towards an unmarked police car which was approaching, forcing the police vehicle to stop. Your getaway vehicle swerved narrowly avoiding a collision with the police car and sped away from the scene.
15You and your co-offenders left Mr McDonald's address with the following stolen items, an Apple iPhone, an Apple iPad, an Apple MacBook, a safe and an Oppo mobile phone. The Holden Commodore now travelling at great speed, was pursued by several police cars. However, the pursuit was called off due to the danger to the public and the getaway vehicle was last seen at the entrance to the Western Ring Road.
16
A sample of DNA was later obtained from the octopus strap that had been used to bind McDonald's hands linking you to the strap. In the early afternoon of
29 March 2019, members of the Special Operations Group, attended
49 Yarraman Road, Noble Park where you were arrested without incident and transported to the Dandenong Police Station. You made a 'no comment' interview as is your right.
17Ms Hillier pleaded guilty to one charge of aggravated burglary, one charge of theft, and one charge of possession of a drug of dependence. She was a first time offender at age 26.
18On 22 May 2020, she was sentenced to 158 days' imprisonment and a two year Community Correction Order. She was unaware of the use of a firearm and her offending was characterised by His Honour Judge Murphy as at the lower end of the range.
19The co-offender who had the weapon in his possession pleaded guilty in the Children's Court in July of this year. The charges against two other males arising from this incident are listed for trial in this court on 26 October 2022.
Objective Gravity
20I turn to an assessment of the objective gravity of your offending.
21
Aggravated burglary is a very serious offence. Its seriousness is reflected in the maximum penalty of 25 years' imprisonment. Central to the offence is a trespass with criminal intent, in your case an intent to steal. As
Acting Justice of Appeal Croucher recognised in the case of DPP v Barnes, ‘the unlawful invasion of another's home with a weapon and a violent intention can be, and usually is a very serious one'.[1] That remains the case where as here, intention was to steal and your co-accused had the firearm.
[1] DPP v Barnes [2015] VSCA 293, [48].
22In the case of DPP v Myers[2], the Court of Appeal identified a number of considerations which are relevant to an assessment of the seriousness of particular incidents of aggravate burglary. Applying those considerations to the circumstances of your offending, the following are aggravating features. That you were in company and that your co-accused was, to your knowledge, carrying a shotgun. The presence of a firearm in cases of aggravated burglary and home invasion is a very significant aggravating feature. However, you were not the person who held the gun.
[2] [2014] VSCA 314.
23Although I do not have a victim impact statement from Mr McDonald, I infer that the aggravated burglary would have been frightening, a matter that I take into account. You told Mr Armstrong, the psychologist who assessed you for this court case, that you accepted that your actions have had a significant impact on the victim.
24While there was clearly a degree of pre-meditation and planning associated with the burglary, the extent to which you participated in that planning is unclear. When you spoke to Mr Armstrong, you denied being a central aspect to the planning and maintained that you were asked to participate on the day. There's no other evidence before the court on this point. I therefore do not sentence you on the basis that the offending was your idea, or that you were involved in the planning. I note that one of your co-offenders Ms Hillier conceded to an undercover police operative that the offending was her idea, although the judge who sentenced her was not convinced that was so. As noted earlier, two of the alleged offenders are yet to face trial.
Disputed Matters
25There was a dispute at the hearing of your plea, about whether certain conduct by you can be taken into account by this court as an aggravating feature of your offending. As I noted earlier, you restrained Mr McDonald with an occy strap and placed a hood over his head. Mr Saunders, for the Director of Public Prosecutions submitted that this is an aggravating feature of your offending. Although your counsel accepted this as part of the surrounding circumstances of your offending, he submitted that the court is not permitted to take into account this conduct, as a matter of aggravation in relation to the sentence to be imposed for the aggravated burglary.
26
This was said to result from the decision of the High Court of Australia in the
R v De Simoni[3], as recently applied by the Court of Appeal in the aggravated burglary case of Bava v The Queen[4]. As noted, Mr Saunders for the Director submitted that this was incorrect and that your conduct concerningMr McDonald was a serious matter of aggravation in respect of both the charges of aggravated burglary and the assault.
[3] (1918) 147 CLR 383.
[4] [2021] VSCA 34 (‘Bava’).
27The court requested the parties provide brief written submissions in respect of this disputed question of principle. The court received an amended defence outline of submissions dated 1 July 2022 and the Director responded in submissions dated 30 August 2022.
28
In the defence submissions it is contended that the conduct of tying up
Mr McDonald cannot be relied on as a factor informing the objective seriousness of the aggravated burglary. Reliance is placed on the rule in De Simoni. That rule is described in Fox and Freiberg's sentencing as follows:
Circumstances of aggravation which in themselves amount to a discreet and serious crime that could have been made the subject of a separate charge, but were not so charged, cannot be relied upon as aggravating factors in fixing sentence[5]
[5] Aried Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law and Practice (Thomson Reuters, 3rd ed, 2014), 163 [2.145].
29
This principle was recently applied in an aggravated burglary case by the
Court of Appeal. In Bava, the Court of Appeal concluded that the sentencing judge in that case had erred in treating the offender's conduct of tying up and threatening the victims, as a factor that informed the objective seriousness of the offence of aggravated burglary. The conduct constituted the separate offences of false imprisonment and assault for which the offender had not been charged. The court referred to the earlier cases of Salapura v The Queen[6],
R v Newman and Turnbull[7], and R v Ashdown[8].
[8] [2003] VSCA 216 (‘Ashdown’).
[6] [2018] VSCA 255.
30
In written submissions in reply, the prosecution submits that the court in Bava, 'did not have its attention drawn to all of the relevant authorities.' Further, the rule relied upon by the defence is more nuanced than the decision in Bava suggests. In support of this proposition the prosecution cites the case of Ashdown, which I note is a case that was cited by the Court of Appeal in Bava. The prosecution also draws the attention of the court to the additional cases of
The Queen v Nobile[9]and Elsayed v The Queen[10]. In these cases the Court of Appeal held that a sentencing judge is only prevented from taking into account an uncharged offence as aggravating, where the uncharged offence is a more serious offence, than the one charged.
[10] [2019] VSCA 113.
31There is clearly, in my view, some tension between the statements of the relevant rule in the cases to which the court has been referred. However, as the facts in your case are relatively indistinguishable from those in Bava, which is the most recent of the Court of Appeal decisions on this point, I accept the defence submission, that I cannot consider your conduct in restraining Mr McDonald as an aggravating factor in respect of the sentence to be imposed on the charge of aggravated burglary. It remains part of the circumstances of the offending and can be taken into account on that basis. In fact, it must be.
32However, I do not accept your counsel's submission that your offending falls at the lower end of the scale in terms of its objective seriousness. In light of the aggravating features identified above, I assess your offending in relation to the aggravated burglary as mid-range.
33As I have noted earlier, you have also pleaded guilty to the summary offence of assault with a weapon. It is your presence while your co-offender held a gun to the head of the victim, that is the basis of your culpability for the assault. Immediately before the gun was pointed at Mr McDonald's head, your co-offender told him to lie on the ground and put his hands behind his back.
34You were charged on a complicity basis, in that you were involved in the commission of the offence by your co-accused under s 323 of the Crimes Act1958 (Vic). The prosecution summary which you accept is accurate, states that while the gun was being held to the victim's head, you proceeded to tie Mr McDonald's hands together behind his back with occy strap and used a white cloth to cover his eyes and face. Your counsel submits that this conduct is relevant in respect of the summary assault charge.
35It is submitted that it would stretch credulity to assert restraining the victim was in some way designed to encourage your co-offender to engage in the assault, as the offence occurred prior to you restraining the victim. The difficult with this submission, is that a person will be involved in the commission of an offence, indictable or summary if they, and I quote, 'intentionally assist or encourage the commission of the offence'. On the agreed facts I consider that your conduct in tying up Mr McDonald both assisted your co-offender's offending and also provided encouragement to him.
36In these circumstances the authority of Bava is distinguishable and I will have regard to your conduct of restraining the victim and covering his face with a cloth, as aggravating factors in assessing the objective gravity of the summary assault charge.
37It is clearly more serious offending than if you had merely stood there while the gun was placed to Mr McDonald's head. I do not accept your counsel's submission that this is a less serious example of the offence, on the contrary I find it to be a serious example of the offence.
38Finally, I note that you and Ms Hillier stole a number of valuable items of property belonging to Mr McDonald. I consider this to be a mid-range theft, your conduct in restraining the owner of the property also facilitated the theft.
[9] [2006] VSCA 211.
[7] [1997] 1 VR 146.
Personal Circumstances
39Your counsel submits that you are a profoundly compromised individual. This is supported by the evidence before the court. You are one of 13 children born to your parents in New Zealand. You came to Australia when you were young with your parents. Your childhood was marred by financial deprivation as well as physical and emotional abuse at the hands of your father who was often drunk. Your mother would barricade in your room for your safety.
40You were badly behaved at school and performed poorly. You began to smoke cannabis when you were young. By the time you were 17 you were living a criminal lifestyle and regularly abusing amphetamines. At the age of 19 you witnessed the death of your mother. You feel responsible as you consider that you did not seek help quickly enough. This guilt has led to further drug use.
41You have three children. You separated from Markee the mother of two of the children at the time of your arrest. However, you've since reconciled and you receive support from Markee. I'll return to the significance of that.
42You played rugby league at a high level for the Melbourne Storm reserves. You have a history of offending dating back to 2007. Although you've not been sentenced many times, the offences for which you have been sentenced are serious. In 2007 you were sentenced to six months’ imprisonment wholly suspended in this court for affray and recklessly causing injury. Later that year you were sentenced to one year and seventy days for recklessly causing injury and aggravated burglary. And finally in 2012 you were sentenced to a total sentence of seven years and eight months for aggravated burglary, firearm present, armed robbery, intentionally causing injury and other offences. You were released in 2017.
43Your history of offending means that specific deterrence is an important sentencing consideration. I must impose a sentence that deters you from future offending, and protects the community.
Mental Health
44
For the purpose of the plea hearing you were assessed face-to-face by
Mr Luke Armstrong, consultant psychologist. Mr Armstrong's report dated
20 June 2022 is in evidence. After detailing your upbringing and noting your prior criminal history, Mr Armstrong states that gaol has provided you with structure and predictability. He notes this is common in people with extremely low intelligence and the risk is the longer they remain incarcerated the greater the chances they become institutionalised. He suspects that you are already somewhat institutionalised.
45Mr Armstrong opines that your narrative is consistent with an individual who was exposed to a chronic form of child abuse in the form of familial substance abuse, neglect, violence and poverty. He states that your emergent behavioural and emotional disturbances should be understood within this early developmental context of abuse.
46Mr Armstrong assesses you as having a general cognitive ability in the extremely low range of intellectual functioning. He reports that your full-scale IQ score confirms deficits in reasoning, academic learning as well as learning from experience and sits within the range for mild intellectual disability. Mr Armstrong opines that at the date of your offending you would have qualified for polysubstance abuse set of disorders, he also considers that you present with features of intellectual disability or retardation as well as features of a borderline personality disorder.
47Mr Armstrong concludes that you are easily led and gullible and that it is probable that more sophisticated co-offenders exploit your size and tendency to be easily led secondary to extremely low IQ. He considers that you are remorseful for your offending, and that you are a vulnerable prisoner who will be especially vulnerable to institutionalisation.
48
You were neuropsychologically assessed on 17 August 2022, by a
clinical neuropsychologist, Mr Mathew Staios. Mr Staios's report dated
24 August 22, is also before the court. He took a detailed history from you which conforms with that taken by Mr Armstrong. Mr Staios had also read a copy of the report prepared by Mr Armstrong. Mr Staios administered a number of standardised psychological tests and concluded that your level of intellect falls within the lower end of the borderline range fourth percentile. This means that 96 out of a hundred people of your age would perform better than you.
49
Although Mr Staios considers that you do not meet the criteria for an intellectual disability, he opines that your profile is most consistent with a significantly disrupted early education against a background of chronic substance use.
Mr Staios expresses the following opinion about your future needs:
Following release from prison he would benefit from ongoing engagement with a case management service to assist with linking him with appropriate treatment providers, including a consistent medical practitioner, treating psychologist and drug and drug and alcohol support service. He may also benefit from attending a group drug and alcohol support service to assist with maintaining abstinence following release. I note that his immediate family is willing to assist with providing accommodation and employment following his release, factors that may serve to moderate his level of risk moving forward
Delay
50The delay in the finalisation of your case has been inordinate. You were remanded in custody on 29 March 2019. Without going through the entire chronology it is apparent that the delay in the processing of your case has not been your fault. It seems to have been primarily caused by the general delays due to the pandemic. The delay is relevant to sentencing in two ways. The first is that it means you have had this case hanging over your head for three and a half years, with all of the uncertainty that has caused.
51Further, your time in custody has been especially difficult because of the restrictions caused by COVID-19, which has meant limited opportunities to engage in courses, and severe restrictions to visits.
52The second way in which delay is relevant concerns your prospects for rehabilitation. According to the pre-sentence report I ordered which I will come to in a moment, you have completed a range of certificates and training courses while in prison. This has prepared you for work once you are released and is a matter I have taken into account in determining the most appropriate outcome in your case.
Other Matters of Mitigation
53You are entitled to a significant discount on the sentence for your plea of guilty during the ongoing pandemic. Your plea has utilitarian value and is some evidence of your remorse. You have also expressed remorse as part of your pre-sentence assessment telling the assessor Ms Caribot, that you accept what you have done and you know it was wrong.
54Your counsel submits that your early life deprivation ought enliven the court's discretion to moderate your sentence in line with the principles enunciated in the case of Bugmy v The Queen[11]. I accept that your sentence should be moderated somewhat in light of your deprived upbringing.
[11] (2013) 249 CLR 571.
55I have given less weight to general and specific deterrence than would otherwise be the case as your moral culpability is reduced in light of both your childhood experiences and your low IQ.
56Finally, I accept that the custodial environment will be more difficult for you, has been and will be more difficult for you, than it would be for someone without the conditions described by Mr Armstrong and Mr Staios. I have moderated your sentence accordingly.
Current Sentencing Practices
57The court is required to have regard to current sentencing practices, while noting that this is just one consideration among many that must be taken into account. In the recent case of Brown v The Queen[12], the Court of Appeal noted that sentencing standards for aggravated burglary have been undergoing a steady transition since the court's 2012 decision in Hogarth v The Queen[13]. The court in Brown upheld a sentence of five years and six months for what it characterised as a very serious offence of aggravated burglary.
[12] [2021] VSCA 204 (‘Brown’).
[13] [2012] VSCA 302.
58The court referred to a number of aggravated burglary cases where sentences of between five and eight years had been imposed, while noting that lower sentences had also been imposed.
59There are features of your case which mean that current sentencing practices are to be given less weight than might otherwise be the case, and those features are discussed below.
60
The court requested that you be assessed for your suitability for a
Community Correction Order. You were assessed on 12 August 2022 and a report of that extended assessment dated 16 August 2022 is before the court and I have had regard to it as I am required to do. The pre-sentence report notes, that while you have an extensive history with the prison system, you have a limited history with Community Correctional Services. You successfully completed a period on parole in 2008.
61The author of the report sets out your response to the possibility of being sentenced to a CCO. You said and I quote, 'I really need it. It's something I've never really had before. I would get out and go well and then after a while I'd just start doing the same things, because there's nothing there to keep me on track.'
62The report assesses you as a high risk of general re-offending. However, because you engaged positively through the assessment process and despite your criminal history, you were deemed a suitable candidate for a Community Correction Order. According to the author of the report, this was because of the therapeutic opportunities that such an order provides.
63The report also refers to the incentive you have to look after your teenage children and the work opportunities available to you through a cousin. I have taken this into account, noting the efforts you have made in prison to complete courses that set you up to work in the construction industry. The report notes that the unpaid community work that you will be required to perform under a Community Correction Order, would further assist you to be job ready.
64In your interview for the report, you volunteered that, 'At the end of the day, it's all up to me'. You recognise that you will have good people around you to help you. A Community Correction Order has been described in the Court of Appeal as a sentence which demands of the offender that he take personal responsibility for self management and self control and that he pursue treatment and rehabilitation.
65Importantly, in your case, it also enables you to maintain the continuity of personal and family relationships and to benefit from the support they provide. On the question of your transitional needs, that is transitioning from custody to the outside world, the pre-sentence report states as follows:
It is positive to note Mr Ulutui has stable accommodation and supportive family to attend to upon his release from custody. However, taking into consideration the long period of time he's spent in custody and his complexities, Mr Ulutui would be at a significant disadvantage to be released from custody with time served. Mr Ulutui is considered to be highly vulnerable upon his release and without transitional care his risk of general reoffending may increase. If Mr Ulutui becomes a sentenced prisoner, this service will have capacity to initiate all referrals, therefore upon his release into the community he will have adequate support available to him. Throughout the assessment Mr Ulutui advised on numerous occasions, "I get nervous about coming out, I don't even have any ID. I can't get Centrelink, 'cause I've got no ID, all because my name has been spelt wrong on my birth certificate. I can't even get a bank account open"
66The report concludes: ‘this could be canvassed during the transitional support with Mr Ulutui to address this prior to his release’.
Submissions
67
Your counsel submitted that you should be offered the opportunity to undertake a Community Correction Order in combination with a term of imprisonment that is less than the time you have already served. He submitted that such a sentence would be in conformity with the treatment and rehabilitation goals identified by
Mr Armstrong. Further, it would enable you to receive the support you need to improve the stability of your life and build pro-social relationships.
68Your counsel drew attention to your risk of further institutionalisation. I consider this as a real risk in your case, given the length of time you have spend in custody, in remand and on previous occasions. As the Court of Appeal has observed, gaol induces habits of dependency which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world.
69
I have taken into account that you told the person who assessed you at the court's request, that you really need the support available to you under a
Community Correction Order as it would keep you on track. I have also taken into account that you have reconciled with your partner Markee, and that on your release you will be living with her and your two children.
70Your daughter has been diagnosed with Type 1 diabetes recently. This can be, and often is a debilitating disease and she needs both her parents at home to help her. As the Corrections assessor, Ms Caribot explained in her report, 'these are protective factors which can be reinforced by the availability of appropriate community services under a Community Correction Order’.
71It was not submitted that parity with the sentences imposed on your co-offenders was of particular significance. I note that their circumstances are quite different from yours. Ms Hillier was sentenced on the basis that she was unaware of the presence of the firearm, she also had no prior convictions. The co-offender who held the gun, was sentenced in the Children's Court where sentencing considerations are quite different to those which inform sentencing in this court.
72Prosecution counsel submitted that the seriousness of your offending and your prior offending are such that a head sentence with a non-parole period is the only appropriate disposition. The prosecution points to the need for just punishment as well as deterrence, both general and specific.
Consideration
73On balance, I accept the defence submission, but have taken into account the advice in the pre-sentence report in not releasing you from custody on the basis of time served alone. Such an outcome is not in your interest for the reasons there explained. Nor, importantly, is it in the broader community's interests. Put simply, your immediate release without adequate support would likely increase your risk of reoffending.
74I accept that you need extensive support to promote your rehabilitation. This is one of the purposes this court is required to achieve when imposing a sentence on you. It is well established that promoting your rehabilitation achieves community protection, another purpose of the sentence that I impose. I consider on the material before the court that these various purposes can best be achieved by a combination sentence.
75The Community Correction Order in combination with a further period of incarceration is intended to meet these purposes and also to impose some further punishment on you. As the Court of Appeal has explained in cases involving serious offending such as yours, a Community Correction Order serves both punitive and rehabilitative purposes in a way that simple incarceration cannot.
76Mr Ulutui, if I could address you directly. I'm giving you a chance to rehabilitate yourself and make a constructive contribution to your family and the broader community after you've wasted many years of life in gaol. The two year duration of the Community Correction Order I'm imposing is designed to facilitate your rehabilitation. Don't waste this chance.
Orders
77Taking all relevant matters into account and noting that the law requires me not to impose a sentence that is no more severe than is necessary to achieve the purposes that must be met, I sentence you as follows.
78On the charge of aggravated burglary, you are convicted and sentenced to three years and six months' imprisonment.
79On the charge of theft, you are convicted and sentenced to two years imprisonment.
80On the summary offence of assault with a weapon, you are convicted and sentenced to 12 months' imprisonment.
81The sentence on Charge 1 is the base sentence. Six months of the sentence on Charge 2 is to be served cumulatively on the base sentence. The sentence on Charge 3 is wholly concurrent.
82The total effective sentence is therefore four years’ imprisonment, less time served.
83On all three charges you are sentenced to a Community Correction Order of two years. That order will commence immediately upon your release from custody.
84Pursuant to s 18 of the Sentencing Act1991 (Vic) I declare 1,254 days of pre-sentence detention not including today.
85Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), if you had pleaded not guilty and had been found guilty by a jury, I would have sentenced you to a total effective sentence of six years and nine months and a non-parole period of four years and six months.
86I am required under law Mr Ulutui to explain to you the conditions of the Community Correction Order. I will got through those now. Firstly there are standard terms of a Community Correction Order. You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment.
87You must comply with any obligations or requirements prescribed by the regulations. You must report to and receive visits from the Secretary during the period of the order. You must report to the community Corrections Centre specified in the order, within two clear working days after the order comes into force. You must notify the secretary of any change of address or employment within two clear working days after the change. You must not leave Victoria, except with the permission of the Secretary, either generally or in relation to a particular case. And you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
88In addition, there are some conditions in the order which I have imposed, having regard to the advice the court has received from corrections in the pre-sentence report. First, is you must report to Werribee Justice Centre within two working days of your release from custody. Subject to condition 5 below, you must complete 100 hours of unpaid community work. You are to be supervised, monitored and managed as directed by the Secretary.
89That you undergo treatment or rehabilitation as directed by the Secretary in order to address your offending behaviour and in particular attend (a) any assessment and treatment including testing for drug and alcohol abuse or dependency as directed; (b) any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility; (c) any program that addresses factors relating to your offending behaviour; (5) [sic] up to 50 hours satisfactorily undertaken for treatment and rehabilitation are to count as hours of unpaid community work. And finally, you will be subject to judicial monitoring.
90That is you must appear before me as directed, so that I can monitor your progress. The first monitoring date will be Thursday, 1 June 2023 at 9.15 am. I have set that time so that there will be a period of time that has expired after your release from custody in which you have commenced to engage in the programs.
91I will request that the Community Corrections officer provide an updated progress report, no later than three working days prior to the date of the first judicial monitoring session. The prosecution need not attend at the judicial monitoring hearing unless there is good reason to do so, but the Office of Public Prosecutions will be contacted through my chambers if that is the case.
92Mr Ulutui, you must realise I cannot make a Community Correction Order unless you agree to the terms and conditions. Do you agree to comply with the Community Correction Order with the terms and conditions which I have set out?
93OFFENDER: Yes. Ah, yes.
94
HIS HONOUR: You must also understand that if you contravene any of the conditions of the Community Correction Order which will commence upon your release from custody, then that in itself is an offence, punishable by a maximum of three months' imprisonment. Should that occur, you will brought back before this court and it is possible that depending upon the circumstances the order will be cancelled and you will be ordered to serve a term of imprisonment instead.
Mr Hooper can you confirm that Mr Ulutui consents to the Community Correction Order being made?
95MR HOOPER: Your Honour I can confirm that I've specifically sought those instructions and Mr Ulutui has given instructions to consent to the order, in addition to expressing consent in open court just now.
96
HIS HONOUR: Thank you. Mr Ulutui when you're released from prison, you will be on a two year Community Correction Order. It's a condition of that order that you be supervised that you undergo ongoing mental health treatment and engage in programs to address your offending behaviour. You will come back before me, for what is called judicial monitoring on 1 June 2023 at 9.15 am. The
Community Corrections Office will provide me with a report before that time that outlines your progress. How you're going under the order. And I'll then decide if I need you to come back again during the life of the order for further monitoring.
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