Director of Public Prosecutions v Vaotuua
[2024] VCC 1052
•16 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01825
Indictment No. P10745609
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON VAOTUUA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 18 June 2024 | |
DATE OF SENTENCE: | 16 July 2024 | |
CASE MAY BE CITED AS: | DPP v Vaotuua | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1052 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – pleas of guilty – two charges of theft (both charges are rolled-up charges) – one charge of home invasion and one charge of common law assault
Legislation Cited: Crimes Act 1958, s74(1), s77(a) – common law assault contrary to the common law - Sentencing Act 1991
Cases Cited:R v Jones [2004] VSCA 68; Worboyes v R [2021] VSCA 169; DPP v O’Brien [2019] VSCA 254; Taleb v R [2020] VSCA 329; Mang v R [2022] VSCA 10; Schaeffer v R [2021] VSCA 171; Wyka & Gardiner v R [2020] VSCA 104; Clark v R [2020] VSCA 125; Brown v R [2021] VSCA 204; Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Hillman [2024] VSC 100; DPP v Lindemann [2024] VSC 220; Noah Bergman (A Pseudonym) v R [2021] VSCA 148; Bogdanovichv R [2011] VSCA 388; R v Osenkowski (1982) 30 SASR 212; DPP v O’Brien (2019) 280 A Crim R 1; DPP v Meyers [2014] 44 VR 486; Hogarth v R (2012) 37 VR 658;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Barron | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C. Edwards | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Jackson Vaotuua, on 18 June 2024, you pleaded guilty to the following offences:
Charge 1 ꟷ that you, at Noble Park in Victoria on 9 April 2023, stole two Victorian driver’s licences, a Westpac debit bank card, an ING Visa debit card, and an NE Buck debit card, a UB debit card, a Ryobi cordless drill, a Milwaukee cordless drill, a four-way tyre iron and a Jay Jays hoodie belong to Amanda Mawson.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Such charge is referred to as a 'rolled-up' charge. A rolled-up charge in an indictment alleges that you have committed more than one offence of the same type within a specified period of time. In your case, it is alleged that you committed the same offence on 9 April 2023 – theft – in relation to the various items pleaded in the charge. Such a rolled-up charge has an advantage for you by restricting the maximum penalty available to a single offence, rather than the total theoretically‑available maximum sentence for theft charges on each item alleged to have been stolen.[1]
Charge 2 – that you, at Noble Park in Victoria on 9 April 2023, entered as a trespasser, a home situated at Lightwood Road, with intent to commit an offence involving an assault to a person therein and that at the time you were in the company of Amber Gibbs.[2] ('the co-offender') and while you were present in the home, Phong Ta was present in the home. Such offence is contrary to s77A of the Crimes Act 1958 and carries a maximum penalty of 25 years’ imprisonment.
The offence of home invasion is a Category 2 offence for the purposes of s5 of the Sentencing Act 1991. As provided by s5(2H) of the Sentencing Act 1991, a person being sentenced for such an offence must be sentenced to a custodial order unless the offender is found to satisfy one or more of the exceptions set out in ss(a) through to ss(e). Your counsel expressly stated that there would be no reliance on any of the exceptions.
Charge 3 – that you, at Noble Park in Victoria on 9 April 2023, assaulted Phong Ta.
Such offence is contrary to s320 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Charge 4 ꟷ that you, at Noble Park in Victoria on 9 April 2023, stole a 68-inch plasma television, an iPhone 7 and a Toyota RAV4 car, (registration IVO 9TE) and the car keys, belonging to Phong Ta.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and, as already stated, carries a maximum penalty of 10 years’ imprisonment.
Charge 4 is also described as a rolled-up charge in the same way as described in relation to Charge 1 on the Indictment. In this case, Charge 4 alleges that you stole a variety of items on 9 April 2023. Rather than charging you in relation to each item, the items are set out in a 'rolled-up' charge. As pointed out earlier, such a rolled-up charge has an advantage for you by restricting the maximum penalty available to a single offence, rather than the total theoretically-available maximum penalty for theft charges on each item alleged to have been stolen.
[1]See R v Jones [2004] VSCA 68 at paragraph [13]
[2]'Amber Gibbs' is a pseudonym. She was charged with a number of offences and sentence was handed down on 28 June 2024, to which I will make later reference.
2I was informed by the parties that you had undergone a partial arraignment, but a full arraignment occurred on 18 June 2024. Furthermore, it is to be noted that the matter initially came before the Court for a plea hearing on 10 April 2024, at which time an adjournment was sought by those acting for you to obtain a report from a neuropsychologist. On 18 June 2024, the Court was informed that such report had been obtained, but those acting for you were not relying on such report.
The circumstances of the offending
3Counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening for Plea', dated 18 March 2024.[3] The Court was informed by your counsel that such summary was a 'fair' summary.
[3]Exhibit 1
4I will not refer to all the matters set out in such document, but do refer to the important aspects pertaining to your offending.
· You were born in September 1997 and were 25 years of age at the time of the subject offending and are now 26 years of age. At all material times you resided at a flat on Lightwood Road, Noble Park.
· At the date of the offending you were in a relationship with the co-offender.
· The victims (complainants) in this proceeding are Ms Amanda Mawson ('Mawson'), who, at the date of offending, also resided in Lightwood Road, Noble Park. Although her address was a short distance away from your residence, she did not know you or the co-offender.
· Phong Ta ('Ta') and Thi Nguyen ('Nguyen') were a married couple with children who, at the date of the offending, also resided in Lightwood Road, Noble Park. Again, although their address was a short distance away from your residence, they did not know you or the co-offender.
· On 9 April 2023, at approximately 6.30 am, you were walking on Lightwood Road, Noble Park, in the company of the co-offender. You walked up to a black Ford Kuga vehicle, which was the property of Mawson, parked on the roadway in front of Mawson’s address. You used a long black item to strike the rear window of the vehicle, causing it to shatter.
· You initially walked away from the vehicle before returning to it, reaching into the broken window and removing a backpack containing two cordless drills (one a Ryobi brand and one a Milwaukee brand).
· You then walked away from the vehicle with the backpack, but returned approximately two minutes later and reached into the broken window again, removing a silver tyre iron. You then used the tyre iron to smash the rear and front passenger windows of the vehicle, reaching into the front passenger window and removing Mawson’s wallet, which contained four bank debit cards.
· You then attempted to break the front driver window several times, but were unsuccessful. You then broke the rear driver window, before reaching into and removing a Jay Jays hoodie. You then walked away from the vehicle with the items.
· All the above items taken from the vehicle were the property of Mawson (such activities constitute Charge 1 on the Indictment – the first rolled-up charge of theft).
· At approximately 6.45 am on the same day, you and the co-offender attended the premises of Ta and Nguyen in Lightwood Parade, with you banging on the door. Ta was asleep in the living room, but woke up and went to open the door. When Ta opened the door, he saw you standing in front of him, after which you then pushed Ta back into his home. You then stepped through the front door and struck Ta in the face with a closed fist. At that time, neither Ta, nor you, had said anything to each other.
· You punched Ta a further time, causing Ta’s nose to bleed, and him to begin telling you to stop hitting him (such activities constitute Charge 3 on the Indictment involving common law assault).
· As you entered the residence, the co-offender came in behind you (your entry into the residence of Ta constitutes Charge 2 on the indictment, that is, home invasion).
· Nguyen had been asleep in a bedroom, but was awoken by sounds in the living room, causing her to come into the living room, where she was assaulted by the co-offender,[4] who then told her to go back into the bedroom. Nguyen complied, but escaped through a window in the bedroom and went to a residence of a neighbour and called Triple 0.
· Ta remained in the living room with you and the co-offender, with you telling Ta that he needed to stay there while you stole Ta’s possessions.
· You stole a 68-inch television, an iPhone and the key to Ta’s Toyota RAV4 vehicle, placing various items in the RAV4, and drove away (these activities constitute the basis of Charge 4 on the Indictment – the second rolled-up charge of theft).
· Police arrived at the premises of Ta and Nguyen at approximately 7.20 am on that day and took statements from Ta and Nguyen.
· At approximately 8.18 pm, police observed the stolen RAV4 parked outside your premises. You then came outside your residence and was arrested.
· When arrested, the key to the stolen vehicle was found after it fell out of your pocket and a search of you, and later a search of your premises pursuant to a search warrant, resulted in the recovery of the four bank debit cards, two driver’s licences in Mawson’s name, a Ryobi cordless drill, a Milwaukee cordless drill, a tyre iron and a Jay Jays hoodie.
[4]Such assault was one of the charges brought against the co-offender.
5On 9 April 2023 – the same day as the subject offending – you were interviewed at the Dandenong Police Station. At that interview, you gave the relevant answers:
(a) you could not remember where you were from 6.00 am on that day because you were affected by drugs;[5]
[5]See record of interview Transcript ('ROI'), Question ('Q') 47, pages 240-241
(b) you had been consuming drugs sometime on the day before;[6]
[6]See ROI, Q38-43, page 241
(c) you had consumed approximately 10 Xanax tablets;[7]
[7]See ROI, Q45-57, pages 241-242
(d) you had also consumed alcohol at the same time as the Xanax tablets;[8]
[8]See ROI, Q304, pages 277-278
(e) you knew the flats where Ta and Nguyen resided, because you had 'bashed' a lot of junkies there, which, you said, was perhaps what you had done on 9 April 2023;[9]
(f) you had issues with people at those flats, specifically 'junkies'. These issues arose every day;[10]
(g) you had never been inside any of the units;[11]
(h) you saw yourself as 'cleaning up the street' or 'cleaning up the area';[12]
(i) you had issues with 'Asians' at those flats because someone had thrown something at your ex-girlfriend. You recalled your ex-girlfriend throwing a nectarine at someone’s window because the resident was 'talking shit'. You said that you were not present when this occurred.[13]
(j) you did not believe you had hit anyone, because if you 'hit somebody, [you] hit ’em hard and usually [you] leave a busted knuckle';[14]
(k) you had short-term memory loss;[15]
(l) you recognized Ta, who you identified as a 'junkie' you had seen before;[16]
(m) you did not know how the Toyota RAV4 came to be in your driveway;[17]
(n) you did not know Mawson.[18]
[9]See ROI, Q57-59, page 243
[10]See ROI, Q63-65, page 243
[11]See ROI, Q71-76, pages 243-244
[12]See ROI, Q87-92, page 246
[13]See ROI, Q95-98, page 247
[14]See ROI, Q101, page 248
[15]See ROI, Q205-208, page 263
[16]See ROI, Q248, page 269
[17]See ROI, Q295, page 275
[18]See ROI, Q295, page 275 [?]
6
Counsel for the prosecution noted that you had been remanded in custody since 9 April 2023 and up to, but not including the day of the plea, had served
pre-sentence detention of 436 days.
7Counsel for the prosecution set out a chronology of the various events which have occurred in this matter. I set out the chronology as follows:
DATE
EVENT
9 April 2023
Filing hearing
11 April 2023
Filing hearing
15 May 2023
Bail application (refused)
3 July 2023
Committal case conference
4 August 2023
First listing of committal; adjourned to allow the co-offender committal to be heard alongside it
17 October 2023
Bail application (refused)
23 October 2023
Committal (you entered a plea of guilty to some offences after receiving the committal caution)
20 November 2023
Initial directions hearing
11 December 2023
Further directions hearing
9 February 2024
Partial Arraignment
Victim Impact Statements
8One of the complainants, Phong Ta, declared a Victim Impact Statement on 11 April 2024. Such statement was tendered and marked as Exhibit 4.
9Such Victim Impact Statement was taken with the assistance of an interpreter and reads as follows:
'Injury
He punched me in the face, and I had an injury to my nose. I had a bloody and broken nose. It happened on a public holiday so I couldn’t go to the doctor on the day it happened, because the doctor clinic was closed. After a few days I went to the chemist and got some things to fix my nose injury myself. My nose is now fully recovered.
Emotional
Me and the children are not sure if he is in prison, or out of prison and not knowing makes us scared. Me and my children are scared to leave the house. We are scared to even go shopping, we are scared that someone might follow us, or when we get home, we are scared to see if someone is near the house. My children are scared of the dark, they are scared at night if there are any noises. Me and my children are scared when people come to our house, like after the crime whenever the police come to this home to get my statement my children are very scared. This is making a hard life for me and my children.
Housing and financial
I was renting a home where this crime happened and the Agent kicked me out (by this meaning issued me with paperwork forcing me to leave). Me and my children had nowhere to go which caused me to be living out on the street with my children. This time was very hard for me and my children. I have to borrow some money from a friend to rent another property. This has put added money pressure on me to owe a friend and the added expense of bond and advance rent.
The children used to go to school by themselves by bus but now they are scared so l have to pick them up and drop them off. I would like to find a job but having to do the pickups and drop offs the children affects my ability to look for a job. The children are scared, and I’m scared, and I can’t leave my children to be able to look for a job.
We are worried all the time, and this affects our life.'
(sic)
Your criminal record
10Counsel for the prosecution tendered your criminal record dated 8 February 2024.[19] I note the following:
(a) on 5 June 2017, at the Dandenong Magistrates Court, you were found guilty of using a carriage service to harass, being in possession on court premises with an offensive weapon, committing an indictable offence while on bail, distributing an intimate image of another person and 'unlawful assault'. In relation to these matters, no convictions were entered, and you entered into a bond for a period of 12 months with a $1,000 recognizance. The matter was adjourned to 4 June 2018 on the basis that you undergo various programs;
(b) on 29 May 2019, at the Ringwood Magistrates’ Court, you were found guilty of behaving in a riotous manner in a public place, theft from a shop, unlawful assault, assaulting a police officer, resisting a police officer, drunk in a public place, committing an indictable offence whilst on bail and theft from a shop. You were convicted and sentenced to a community correction order for a period of 15 months, with special conditions of performing 150 hours unpaid community work and to be supervised to undergo assessment and treatment in relation to drugs;
(c) on 22 August 2021, at the Bail and Remand Court, you were found guilty of possessing cannabis, having a prescribed concentration of alcohol within three hours of driving, using an unregistered motor vehicle on a highway, failing to carry a probationary licence, driving without rear 'P' plate displayed and committing an indictable offence whilst on bail. You were convicted of all offences and sentenced to various fines;
(d) on 14 July 2022, at the Dandenong Magistrates’ Court, it was found proven that you had contravened the community correction order made on 29 May 2019. The original order was confirmed.
Also on that day at the Dandenong Magistrates’ Court, you were found guilty of making a false report to police, affray, criminal damage (intent to damage and destroy), assault with a weapon, theft from a motor vehicle, unlawful assault, wilfully damaging property, failing to report to police owner not present, failure to answer bail, failure to stop vehicle on police direction, driving in a manner dangerous and the possession of cannabis. You were convicted and sentenced to an aggregate period of imprisonment of 27 days, represented by the time held in pre-sentence detention. Furthermore, you were sentenced to a community correction order for 12 months, commencing on 14 July 2022, with special conditions of performing 100 hours of unpaid community work and your licence cancelled and disqualified for six months, effective from 14 July 2022. The charge in relation to possession of cannabis was ultimately dismissed under s76 of the Sentencing Act 1991.
[19]See exhibit 2
Your personal circumstances and background
11Your counsel tendered the following documents:
(a) a document headed 'Outline of Plea Submissions' dated 13 June 2024;[20]
(b) a report from the psychologist Ms Daniella Kocic ('the psychologist') dated 9 April 2024;[21]
(c) a bundle of character references[22] from:
-Mr Russell Black, allocations manager of Mann Group Vic, dated 3 April 2024
-your father, Mr Jason Vaotuua, dated 3 April 2024
-Mr Aaron Anderson, a director of Raw Labour Hire, undated
-your older sister, Ms Kristie Vaotuua, dated 2 April 2024
-your brother, Mr Chevez Keys-Canavate, dated 22 March 2024;
[20]Exhibit 'A'
[21]Exhibit 'B'
[22]Exhibit 'C'
(d) Prison education summary report dated 17 June 2024;[23]
[23]Exhibit 'D'
12Partly based on some of the documents tendered, and partly based on submissions made by your counsel, I note the following:
· You were born in Australia, with a Samoan and Maori background, and are the youngest of four children – one maternal half-sister (aged 35), one sister (aged 29), and one brother (aged 31).
· You gave details of your childhood which the psychologist described as 'chaotic and unstable childhood marred by early exposure to family violence, parental separation, physical and verbal abuse, and neglect'.
· You informed the psychologist that you witnessed and experienced family violence throughout your childhood, and that both your parents were physically and verbally abusive towards you.
· Your parents separated when you were nine years old. Such an event followed you witnessing your mother being unfaithful and you telling your father, which led to the separation. You informed the psychologist that you felt 'responsible for the breakdown of their marriage'.
· When aged 12, your mother’s house burnt down in a house fire, and upon obtaining insurance money she relocated to Perth and re-partnered. You noted to the psychologist that you have not maintained a relationship with her since she moved interstate.
· Following the house fire, you resided with your father and paternal grandmother, viewing your grandmother as a mother figure, and reported to the psychologist a close relationship with her. Although you described an improvement in your relationship with your father when residing together, you also informed the psychologist that there were instances where your father physically abused you.
· When approximately aged 14, you were evicted from your father’s household, after which you became homeless and were couch-surfing for three to four years. Over the last three years you have resided in Noble Park.
· Since being on remand, one of your uncles died and your grandmother has been diagnosed with dementia. You commented to the psychologist your concerns that you would be unable to see her before her health deteriorates. Furthermore, you stated you remained in regular contact with your father and sister, and with your brother now living in Spain. The reference to the brother in Spain is to the character reference from Mr Chevez Keys-Canavate.
· You attained Year 7 secondary school education, and left secondary school in Year 8, coinciding with being evicted from your father’s home. When at school, you reported experiencing some difficulties in paying attention throughout schooling due to the various stressors occurring in your life.
· You denied to the psychologist that during such schooling there was any diagnoses around learning, attention, or behavioural disorders, or any provision of teacher aide support or placement in a special education class. However, you did note that you received a few suspensions due to fighting with peers, and generally described yourself as an 'angry, upset kid'.
· On leaving secondary school, you completed a four-year apprenticeship and worked as an apprentice chef between the ages of 15 to 19. Due to feeling 'alone and unsupported', you commenced demolition work with a friend.
· You were unemployed for one year (2022-2023) due to recovering from a knee injury and were also a recipient of Centrelink Job Seeker payments throughout that timeframe.
· In particular, you told the psychologist that you have undertaken a number of educational courses in prison. I refer to Exhibit 'D', which sets out the various courses undertaken by you since being remanded in prison. Such certificates involve access to vocational pathways, applied digital technologies; engineering, kitchen operations, cleaning operations, educational services, providing first aid and using hygienic practices for food safety.
· You informed the psychologist that you had no history of serious intimate relationships, although you had often established casual relationships over the years. With regard to the co-offender, you informed the psychologist that that relationship lasted for about eight months and broke down in January 2024 due to mutual drug use and your ex‑partner being unfaithful to you.
· You detailed to the psychologist a longstanding history of alcohol and other drug use, coinciding with a disruption in your household after your parents’ separation. You described the function of your substance use as a form of self-medication to alleviate your emotional pain and mental suffering. You initially denied a family history of AOD – however, later disclosed that your sister used heroin, and alluded to your brother using drugs.
· You tried alcohol at age 11 and described yourself as a heavy drinker by the age of 15, and at the age of 18 reported daily use, consuming upwards of 30 cans of alcohol within one day. You advised you often drank to the point of intoxication, and such alcohol use remained consistent until your remand on 9 April 2023.
· You reported to the psychologist that you have regularly used cannabis, commencing at age 12, and were smoking up to 3 grams on a daily basis until 21, although ceasing then due to 'having enough of it'.
· You commenced using Xanax at age 12 when your parents separated and the house burnt down, following which your mother relocated to Perth with a new partner. You reported an accidental overdose which contributed to a temporary cessation, and also recorded an incidence of intentional overdose at the age of 18.
· You noted that your use of alcohol contributed to an increase in Xanax, and the combination would make you black out. In particular, you described yourself being 'blacked out' on the day of the subject offending, having been drinking alcohol and having taken approximately 10 Xanax tablets.
· You commenced using methamphetamine at age 20, smoking 1 gram every few days. Your methamphetamine use remained relatively consistent in the lead-up to your offending, and you have been prescribed 160-milligram opioid replacement therapy over the last five months.
· You informed the psychologist that you placed yourself in the Windana Drug and Alcohol Recovery detoxification a number of years ago, but exited the facility after about seven days. At the time of you seeing the psychologist you stated that you were on a waiting list for a placement at Odyssey House, and you informed the psychologist you would like to transfer directly from prison to rehabilitation to ensure continuity of care and support.
· You reported you engaged in AOD counselling at the Australian Community Support Organisation at age 18 or 19, for six months. You have completed further AOD courses in prison, and attended Alcoholics Anonymous ('AA') and Narcotics Anonymous ('NA') meetings.
· You informed the psychologist that you offended frequently between the ages of 18 to 21 in the context of using Xanax. You associated your offending behaviour with affiliation with anti-social peers from whom you have distanced yourself in recent years to reduce your likelihood of reoffending.
The evidence of the psychologist
13Your solicitors referred you to the psychologist with opinions being sought regarding your psychological functioning, whether there was any evidence of any diagnosable condition, the relationship of this (if any) to your offending, and whether this would impact your ability to cope with imprisonment or if there is a risk of deterioration in custody, treatment recommendations and rehabilitation prospects, risk of reoffending, and any other contextual factors relevant to your case.
14During the course of an interview with you, the psychologist obtained histories in relation to your family, education, mental and medical history, and alcohol and substance use. Furthermore, she made a mental-state examination and performed various psychological tests.
15The psychologist notes that during your mental-state examination you were polite, cooperative, and answered questions to the best of your ability. You spoke with normal rate, tone, and volume; however, there were instances where your rate of speech was slow, although you were able to communicate your thoughts and feelings coherently.
16The psychologist noted that you displayed partial insight into your offending behaviour, in that you identified some precipitants of your behaviour such as unemployment and mental health deterioration; however, she notes you externalised blame onto your substance use as the driving force behind your actions.
17Based on the various histories given by you to the psychologist, your clinical presentation at the interviews, together with the various psychometric assessments, the following diagnoses were made by the psychologist:
(a) Complex Post-Traumatic Stress Disorder;
(b) Major Depressive Disorder, recurrent episode, severe;
(c) Generalised Anxiety Disorder;
(d) Alcohol Use Disorder, in sustained remission, in a controlled environment;
(e) Stimulant Use Disorder, in sustained remission, in a controlled environment;
(f) Opioid Use Disorder, on maintenance therapy;
(g) Sedative, Hypnotic, Anxiolytic Use Disorder, severe, in sustained remission, in a controlled environment.
18In particular, the psychologist stated her opinion to be:
'111.[You are] a 26-year-old male who has endured considerable instability and disruption characterised by exposure to family violence, verbal, physical, and psychological abuse, parental separation, and perceived neglect.
112. Instability appeared a common theme for [you]. [You] felt a sense of responsibility for the breakdown of [your] parents’ marriage and felt a sense of neglect from [your] mother who moved interstate when [you] 12 years old, with no opportunity to reconnect. [Your] perception of neglect was likely reinforced by experiencing verbal and physical abuse by [your] father on numerous occasions. The disruption of parental attachments can have significant long-term consequences on children’s psychological, behavioural, and cognitive functioning, and can result in low self-esteem, anger, depression, distrust, and difficulties forming and maintaining trust in relationships.
113. [You] reported significant behavioural problems throughout [your] schooling, and ultimately exited formal education during Year 8. [Your] early disengagement from education would have impacted on [your] behavioural outcomes, limiting [your] routine and structure that may have discouraged further anti-social behaviours and criminal activity, and limiting [your] opportunities for positive youth development and contact with prosocial peers. Peers strongly influence preferences in many areas of the adolescent’s life, including using illicit substances, adopting and accepting criminal and antisocial behaviours.
114. [Your] psychological distress appears underpinned by Major Depressive Disorder (MDD) and Generalised Anxiety Disorder (GAD) characterised by persistently low mood, lack of motivation, rumination, and anxious distress. At the time of the current assessment, [you were] experiencing severe levels of depressive and anxious symptoms.
115. [You have] experienced traumatic events (i.e., verbal, physical, psychological abuse) since childhood. [Your] traumatic experiences predisposed [you] to develop Post-Traumatic Stress Disorder (PTSD), characterised by severe levels of avoidance, negative alterations in cognition and mood, and intrusive symptoms.
116. In addition, [your] presentation encompasses additional symptoms now considered to warrant a separate, more complex and severe disorder which stems from repeated and protracted incidents of abuse, as experienced by [you]. Complex-PTSD (C-PTSD) includes the core symptoms of PTSD in addition to three disturbances of self-organisation (DSOs) defined as emotional dysregulation, interpersonal difficulties and negative self-concept. [You] would meet criteria for this revised diagnosis, which currently exists in ICD-11.
117. Research measuring the association between C-PTSD and psychotic symptoms have demonstrated that individuals with C‑PTSD had a significant relationship with psychotic symptoms severity including positive and negative symptoms. Negative symptoms such as avolition (i.e., decreased motivation), asociality (i.e., social isolation), and anhedonia (i.e., reduced experience of pleasure) could develop in response to a traumatic event. Further, untreated PTSD can potentially exacerbate positive symptoms of psychosis.
118. There is a possibility that [your] auditory hallucinations and paranoia are pseudo-hallucinations, which are often experienced by individuals experiencing PTSD and were further exacerbated, in some instances, by [your] substance use. [Your] experience of psychotic symptoms did not appear to be a concern at the time of the current offending, however, it has been highlighted in the context of psychological intervention (counselling and medication) targets and as a consideration for any future diagnostic clarification.
119. There is a higher risk of maladaptive coping strategies in individuals with PTSD, as these individuals are more likely to engage in avoidance and use alcohol and substances to cope with stress. It is inferred that [your] Alcohol, Stimulant (Amphetamine-type), and Sedative, Hypnotic, Anxiolytic Use Disorders developed from a young age in order to self-medicate [your] untreated mental health conditions. These are considered severe and are in sustained remission due to [your]current remand. [Your] substance disorder was being managed by maintenance therapy, Buprenorphine.
120. Taking into consideration [your] history, the circumstances leading up to the offences, and [your] functioning at the time of the offences, a number of factors likely contributed to [your] offending behaviour. It appears that [your] trauma had impacted [your] mental health functioning within society and predisposed [your] to have a higher susceptibility and lower threshold for psychological distress and emotional dysregulation leading to [your] mental health comorbidities; [your] association with antisocial peers and subsequent AOD use at an early age likely normalised [you] to model this behaviour; and the absence of effective coping strategies or problem-solving skills has impacted on [your] ability to adequately address [your] mental health vulnerabilities.
121. Additionally, an individual’s perception of perceived social support increases coping effectiveness when facing distress and reduces antisocial behaviours. [You have] engaged in self-isolation, distancing [yourself] from [your] family, and has a limited prosocial network. Residing alone, whilst actively self-isolating, and ruminating on [your] past, would have contributed to a negative perception of [your] perceived lack of available support, limiting [your] capacity to manage stressors and regulate [your] emotions.
122. [Your] offending behaviour was precipitated by [your] unemployment, medication non-adherence, a lack of routine and structure, and substance use as a form of self-medication. In addition, [you] appeared to have experienced a decline in [your] mental health, citing numerous depressive symptoms impacting [your] functioning. [You] appeared reliant upon illicit substances throughout the offending period in a maladaptive effort to cope with [your] distress. At the time of offending, [your] capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of his conduct was impaired. [Your] acute intoxication from methamphetamine, alcohol, and Xanax, likely contributed to the actual commission of [your] offending due to increased disinhibition, poor judgement, and higher levels of impulsivity.
123. The dangers of mixing alcohol and benzodiazepines (i.e., Xanax) have been well documented. For instance, mixing large doses of both substances often results in a sedation-like experience, fatigue and lethargy, and cognitive impairments. The notion of feeling ‘spaced out’ and limited recall is prominent when combining the substances together at high doses. Further, individuals with a history of impulse control and/or anger outbursts, are often more prone to experiencing the effects of benzodiazepines quicker (i.e., loss of restraint). The addition of alcohol has the potential to increase the rate of which these reactions are experienced.
124. Overall, there are a number of factors outlined above which are linked to [your] history of offending behaviour and impaired functioning. [Your] mental health has caused a level of impairment which has impacted [your] functioning; [your] untreated mental health issues, including [your] PTSD, depression, and anxiety, mean [you have] a reduced capacity in [your] self-management, that is, [you have] not developed adequate and adaptive coping mechanisms to regulate [your] behaviour, thoughts, or emotions in a proactive manner. Instead, [you have] relied upon illicit substances to alleviate the mental pain.
125. These factors are however amenable to treatment and can be mitigated through psychological intervention. [You require] ongoing support and stabilisation of [your] psychosocial circumstances (particularly given [your] lack of stable employment) otherwise [you remain] at increased risk of reoffending due to unchanged psychosocial circumstances and disadvantage.'[24]
(Emphasis added.)
[24]See exhibit 'B' at pages 10-12
19The psychologist also rendered an opinion in relation to your risk assessment; that is, the risk of you reoffending. Ultimately, she came to the view that your general risk of reoffending is considered 'moderate to high'. In particular, she noted that you have a lack of prosocial support and connection, psychosocial instability (periods of housing instability, unemployment, and financial stressors), and polysubstance use. Furthermore, with regard to your criminal history, although you reportedly have not offended for a few years, the subject charges are serious in nature, and consist of similar charges.
20The psychologist was of the view that one of the primary risk factors for you to reoffend is your untreated mental health issues which remain present, your instability captured by unemployment, and polysubstance use. However, your risk of reoffending is mitigated by the presence of several protective factors – they include your interest in seeking support by professional services, your insight into your mental health, and stable accommodation, residing in Noble Park (although it was noted that such accommodation is not necessarily a deterrent for you to reoffend).
21The psychologist also expressed the opinion that if you were incarcerated as a result of the subject charges, such would likely weigh more heavily on you than a person without your mental conditions. In this respect, the psychologist noted that your psychiatric conditions result in an inherent impairment in emotional regulation which can cause undue distress and may place you at increased risk of further emotional deterioration in view of your low coping resources, resulting in you being subject to a substantially and materially greater than ordinary burden.
22Furthermore, the psychologist noted that there is the potential for significant mood fluctuation, and the volatile nature of the prison environment can further exacerbate your symptom profile and risk of decompensation. Your severe and enduring mental health profile may make you more vulnerable to conflict within the volatile prison environment.[25]
[25]See exhibit 'B' at paragraphs [128]-[129]
References
23I refer to the various references which have been tendered:[26]
[26]See exhibit 'C'
(a) a reference from Mr Russell Black, who describes himself as the allocations manager of Mann Group Vic Pty Ltd and states he has known you for the last three years through your employment with the Mann Group. He describes you as a:
'… sensible and responsible employee who is extremely reliable. [You were] a highly respected member in [his] company and had always been known to go above and beyond [your] normal duties. [He knows you are] extremely remorseful regarding this incident.'
(b) a reference from your father, Jaston Vaotuua, who states, in part:
'[You had] been very responsible before by working full time and having [your] own place and owning a car. [He encourages you] to work and stick by [your] work ethic as [he’s] worked beside [you] before. [He’s] seen [you] have goals and focus on them until [you achieve] them. [You] can be passionate, especially about [your] culture. [You] are Māori and Samoan so [you are] very family orientated. [You] have a big family that worry about [you] every day. Since [you have] been incarcerated, [you have] missed a death in the family and the diagnosis of [your] nan's illnesses. [He] cannot describe the affect these heart breaking events have had on [your] family.
[Your] family and [he] miss [you]. [He] will always be here for [you] and support [you] in every way [he] can. … .'
Your father does note that you have mental health problems and he notes that when he separated from your mother he me made it difficult for the children – including you – but over time has 'learned to understand' and has tried to help his various children;
(c) a reference from Mr Aaron Anderson, who describes himself as a director of Raw Labour Hire and notes that you worked for his company from 29 June 2020 to 16 July 2021, and in particular states that during this time:
'… [He] found [you] to be a reliable team player and committed to [your] job and fellow work mates, during this time [you] worked on a variety of jobs one which was a government job involving confidentially and secrecy at Point Cook Army Barracks. [He] found [you] to be of good character while working for [him] and [you] showed [him] nothing untoward this assumption. … .';
(d) a reference from your older sister, Kristie Vaotuua, who states, in part:
'[She has] known [you] since birth, [you] grew up together. [Your] parents split at a young age and not long later [your] mother abandoned [you] as children. Going through abandonment issues as a child has bought a lot of hard times throughout [your] lives. [She] can tell [me] from experience that it took [her] 10 years to start dealing with the trauma that these issues have caused, and still to this day 14 years later the thoughts still haunt [her]. The trauma led to addiction and constant negative thoughts, at one stage [she] accepted that [she] was going to die alone in a deep dark hole filled with depression and anxiety. The only person that understood these [feelings is you]. After suffering for years [she] decided that [she] didn’t want to feel like this anymore, [she] now [lives] a very happy fulfilling lifestyle, [she owns her] own house with [her] partner and [their] 1 year old baby boy. Seeing and knowing that [you] still [suffer] from the trauma of [your] childhood and past hurts [her] and [your] family every day. [You] never received the right support to help [you] through [your] damaging past which has affected [your] life decisions. [She believes you’re] scared to understand [yourself] and confront [your] past but by doing this [you] will be able to start helping [yourself] through [your] daily thoughts.
[She has seen you] do good work by working hard, paying rent and bills and being independent. [You are] a loving, giving, strong family man. [You love] being with [your] family, laughing with [them] and making good memories with [them]. … .';
(e) a reference from Mr Chevez Keys-Canavate, who described himself as your brother and the eldest of three children from you mother, Jo-dee, and your father, Jason. In particular, he describes himself as completing a degree in dental medicine, in Spain, where he resides in Madrid.
In particular he states:
'[He wishes] to bring to the court’s attention that [you] and [he] are biological brothers, and [you] grew up together; however it’s important to note the significant milestones and choices that have shaped [his] journey. At the age of 14, [he] had no other choice but to leave home. Now as a 31-year-old man, [he looks] back now and [sees] that this early departure instilled in [him] a sense of resilience and self-reliance that has been instrumental in [his] personal development. Furthermore, at 18, [he] made the deliberate choice to change [his] name; symbolizing a profound transformation and a commitment forging [his] own identity. … .
It is no shock to [him], nor the person reading this letter, that family and domestic violence cast a long shadow over the lives of countless individuals, leaving behind a trail of trauma and devastation that can reverberate for generations. For [his] younger brother [you], these insidious forces have played a pivotal role in [your] descent into the criminal justice system, ensnaring [you] in a cycle of destructive behaviour and despair. As [your] older sibling, [he is] acutely aware of the profound impact that [your] tumultuous upbringing, marked by an abusive mother and a physically abusive father, has had on [your] mental health and well-being.
Growing up in a household marred by violence and neglect, [you] and [he] learned to navigate a minefield of emotional and physical danger from an early age. [Your] mother's unpredictable outbursts of rage and cruelty by leaving [you] behind as a 12-year-old boy for a relationship on the other side of Australia cast a pall of fear and uncertainty over [you], leaving [you] with [you] father whose fists served as instruments of terror, leaving behind bruises and scars as grim reminders of his unchecked aggression. Despite [your] best efforts to shield [yourselves] from their wrath, the wounds inflicted by their abuse ran deep, leaving scars that would haunt [you] long into adulthood.
For [you], the trauma of [your] upbringing proved to be a formidable adversary, one that [you] struggled to overcome as [you] grappled with feelings of abandonment and self-doubt. Bereft of a stable support system and plagued by the demons of drug abuse and addiction, [you] found solace in destructive behaviours that ultimately led [you] down a path of criminality and incarceration. As [he bears] witness to [your] struggles, [he is] aware of the toll that [your] incarceration has taken on [your] spirit, robbing [you] of [your] sense of self-worth and dignity.
…
As [your] advocate and ally, [he is] committed to ensuring that [you have] access to the mental health services and support systems [you need] to heal and thrive. Through therapy, counselling, and other forms of intervention, [he] will work tirelessly to help [you] confront [your] past traumas, rebuild [your] shattered self-esteem, and chart a course toward a life of purpose and fulfilment beyond the confines of [your] cell.
…
Despite [you] being in prison, [you possess] many admirable qualities that shine through even in challenging circumstances. [Your] resilience and determination are evident as [you navigate] the difficulties of incarceration with grace and strength. [You have] a kind and compassionate heart, always looking out for others and offering support whenever [you] can, even from behind bars. Additionally, [your] intelligence and creativity continue to flourish as [you find] constructive outlets for [your] talents within the confines of the prison system. … .'
Matters in mitigation
24Your counsel accepted that a sentence with a head and minimum term has to be ordered in relation to the subject offending. However, she further submits, in general, that your age, work history, background and the need to avoid a crushing sentence for an offender who is not beyond rehabilitation, and powerful mitigating factors, justify moderation for a head sentence and a non-parole period.
25Your counsel notes that you are a qualified chef since you were 18. In particular, you have worked at Parliament House in relation to the buffet restaurant; the restaurant Tutto Benne in Southgate; an Italian and Greek restaurant, Café Sienna in Toorak and the Moo Bar and Café situated in Mooroolbark. As recorded earlier, she also notes that you changed jobs and have been working in performing demolition work, which was the most recent employment before the subject offending.
26In particular, your counsel referred to the following matters in mitigation of your sentence:
(a) Your plea of guilty
Your counsel conceded that this matter resolved after a contested committal hearing, which involved the cross-examination of Nguyen and Ta. However, she further submitted, without objection, that a mixed plea was entered into at the committal, which involved a wider number of charges to which you have now pleaded guilty to. Following the committal, there was a change of legal representation to your present solicitors and counsel, after which discussion gave rise to the resolution now before the Court.
In particular, it was submitted:
(i)that the matter resolved prior to trial carries a significant utilitarian value – and in particular obviates the need for the complainants to give evidence and relive the trauma of the offending; and
(ii)it was submitted that such a plea was entered into during a period still affected by the COVID-19 pandemic and such a plea should attract 'an actual and palpable amelioration of sentence'. Reference was made to the well-known case of Worboyes v R.[27]
[27][2021] VSCA 169
Counsel for the prosecution tendered a further document headed 'Outline of Crown Submissions on the Plea', dated 17 June 2024.[28] In that document, the circumstances described by your counsel relating to the plea were largely accepted and that the matter resolved 'very shortly' after the committal.
[28]See exhibit 3
After a consideration of all of the evidence, the pleas of guilty, although not in a time-sense early, resulted in a situation where your ultimate pleas of guilty were to lesser offences compared to those to which you were willing to plead guilty during the course of the committal. Apparently this came about after you changed solicitors and counsel.
I do accept that such plea does have significant utilitarian value, as it saved the cost of a trial and, in particular, obviated the need for the complainants to give evidence in relation to the subject offending.
The issue of a further discount based on the principles enunciated in Worboyes is more difficult. In this respect, I refer to the DPP v Hillman[29] and DPP v Lindemann,[30] which are decisions of Hollingworth J, and in particular, I refer to her comments about the application of the Worboyes’ discount. In those decisions, Hollingworth J made clear that pleas of guilty made in more recent times would have difficulty attracting the Worboyes’ discount. I do appreciate that, to my knowledge, the Court of Appeal has not given any particular timetable in relation to any matters relevant to Worboyes and accordingly I will give some weight to the concept enunciated in Worboyes.
[29][2024] VSC 100 at paragraphs [75]-[76]
[30][2024] VSC 220 at paragraphs [100]-[104]
Furthermore, I do accept that, bearing in mind the lengthy period you have been incarcerated by way of pre-sentence detention, that would have been added hardship because of the consequences of the COVID-19 pandemic. I give some weight to this issue in mitigation;
(b) Bugmy
Your counsel referred to the principles enunciated in the High Court case of Bugmy v R[31] apply to your circumstances. In particular, I refer to paragraphs 40 and 43 to 44 of Bugmy[32] which state:
[31](2013) 249 CLR 571
[32]Op cit
'[40] … The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
...
[43] The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
(Emphasis added.)
I also refer to the Victorian Court of Appeal decision of DPP v Herrmann.[33] In that decision, the Court of Appeal (consisting of Maxwell P, Kaye, Nyall, T Forrest and Emerton JJA) explained that in Bugmy,[34] the High Court expressed, in two different ways, the potential relevance of childhood deprivation to the assessment of moral culpability. The first – described as 'more general' – was expressed by those words underlined in paragraph 40 above, and the second – described as 'more specific' – was expressed by those words underlined in paragraph 44 above.
[33][2021] VSCA 160
[34]Op cit
I also refer to the Victorian Court of Appeal decision of Marrah v R,[35] and, in particular, at paragraph 16 whereat the Court (consisting of Redlich and Tate JJA) stated:
[35][2014] VSCA 119
'Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.'
It was submitted that you experienced significant childhood experiences during your upbringing – being exposed to family violence, being the subject of verbal physical and psychological abuse and much neglect ꟷ and that you have suffered long-term consequences because of those experiences,[36] and as such Bugmy considerations, in the 'more general' way, are enlivened and must play a significant role in the assessment of your moral culpability.
[36]Reference was made to the report of the psychologist, Ms Daniella Kokic, exhibit 'B' at paragraphs [120]-[122]
I refer to the Victorian Court of Appeal decision of DPP v Drake,[37] where, at paragraph 32, the Court stated:
[37][2019] VSCA 293
'In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.'
I also refer to the further Victorian Court of Appeal decision of Noah Bergman (A Pseudonym) v R,[38] wherein the Court, at paragraph 100, opined that the effects of a significant reduction in moral culpability by reason of a disadvantaged upbringing:
[38][2021] VSCA 148
'… made his rehabilitation a matter of the highest importance. Otherwise the cycle of offending will almost certainly continue, to the great detriment of the community and of the applicant himself. … made his rehabilitation a matter of the highest importance. Otherwise the cycle of offending will almost certainly continue, to the great detriment of the community and of the applicant himself. We would add that the community would be far better served if the money spent by the State on his continued incarceration could be redirected to intensive individual interventions which the applicant so obviously needs.'
I was informed by counsel for the prosecution that he did not have a lot to say in relation to the application of the Bugmy principles.
After a consideration of all of the evidence, I am satisfied, on the evidence before me – particularly that described by you; your brother, Mr Chevez Keys‑Canavate; and as set out in detail by the psychologist ꟷ that you were subjected to profound dysfunction involving considerable instability and disruption characterised by family violence, verbal, physical and psychological abuse, and perceived neglect. I accept that, consistent with the principles enunciated by Bugmy, your moral culpability is reduced to some extent, particularly in the 'more general' way, as outlined in Herrmann;[39]
[39]Op cit
(c) Application of Verdins’ principles
Your counsel also submitted that the evidence of the psychologist enlivened so-called Principles 5 and 6 set out in the matter of R v Verdins; R v Buckley; R v Vo;[40] a decision of the Victorian Court of Appeal. In particular, paragraph 32 of that decision (the court consisting of Maxwell P, Buchanan and Vincent AJA) stated:
[40](2007) 16 VR 269
'Impaired mental functioning, whether temporary or permanent ('the condition') was relevant to sentencing in at least the following ways:
1. …
2. …
3. …
4. …
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.
6. Where there was a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this factor would tend to mitigate punishment.'
(Footnote omitted.)
In particular, your counsel referred to paragraphs 128 to 129 of the report of the psychologist, to which reference has been made.[41]
[41]See exhibit 'B' dash report of Ms Kocik, at paragraphs [128]-[129]
Counsel for the prosecution made no particular submissions in relation to Verdins. After a consideration of all of the evidence, I accept that Principle 5 is clearly enlivened by the evidence of the psychologist. It is less clear whether Principle 6 is so enlivened – particularly bearing in mind that you have been incarcerated since 9 April 2023 and there is no direct evidence before the Court that you have suffered any 'significant adverse effect' to your mental health during such incarceration.
However, at paragraph 128 of the report of the psychologist, she states, in part:
'… [Your] psychiatric conditions result in an inherent impairment in emotional regulation which can cause undue distress and may place [you] at increased risk of further emotional deterioration in view of [your] low coping resources, resulting in [you] being subject to a substantially and materially greater than ordinary burden.'
Based on such opinion, it is arguable that Principle 6 could be engaged, on the basis that your mental health could deteriorate in prison. In all of the circumstances, I intend to give some limited weight to Principle 6;
(d) Prospects of rehabilitation
It was submitted that you are not a man who has reached 'the point where rehabilitation is beyond [you]'. Instead, it was submitted that you are 'approaching an age where the final stages of development into adulthood and with a previous work history or (sic) some duration and some family support'.
It is submitted that your prospects of rehabilitation can be viewed positively provided you can address the drug issue. In aid of such submission, your counsel highlighted, consistent with the character references from your father and older sister, you have a 'significant family network' to assist you when you are released.
I consider the issue of your prospects of rehabilitation to be best described as 'guarded'. Clearly enough, you have demonstrated in the past you are capable of holding down employment and were held in good stead by your employers – furthermore, as submitted by your counsel, you seemingly have a reasonably-secure family base and have a good relationship with your older sister. Of course, this is the same family in which you experienced great dysfunction during your younger years, and I also note that there was some family disharmony when you supported your older brother when he 'came out' in relation to his sexuality. It must also be borne in mind that the psychologist assessed your general risk of reoffending to be 'moderate to high', and prior to the subject offending you had a long history of drug abuse.
Of course, if you overcome your substance abuse, your prospects of rehabilitation clearly improve, given some support from your family – particularly your sister ꟷ and your ability to seek out work for which you are trained;
General submissions
27Your counsel also submitted that the offending occurred over a relatively confined period of time. In this respect, although it was accepted that the offence of 'home invasion' is objectively serious and that such activity would have been frightening for the occupants of the property, it was of relatively limited duration and at no time did you have a weapon with you.
28Furthermore, when dealing with the various charges, it was accepted that there must be some degree of cumulation, and clearly the issue of totality is relevant when considering the overall criminality. In this respect, it was further submitted that the home invasion offending relating to the victims Nguyen and Ta are such that they can be considered to be one course of conduct. Reference was made to the decision of Bogdanovichv R[42] and in particular to paragraph 63, which stated:
'The totality principle requires that where an offender is sentenced for a number of separate offences, the judge must ensure that the total effective sentence does not exceed that which is a ‘just and appropriate measure of the total criminality involved’. The totality principle is said to ‘defy precision either of description or implementation’. Sometimes it is described as a requirement of ‘just deserts’, and whether the total effective sentence offends that principle is often a 'matter of impression’. A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.'
(Footnotes omitted.)
[42][2011] VSCA 388
29Counsel also submitted that the sentencing principles of parsimony and proportionality are relevant in determining the appropriate sentencing.
30Your counsel also submitted that the remarks of King CJ in R v Osenkowski[43] are apt when considering your fate:
'… There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. … .'
[43](1982) 30 SASR 212
Relevant authorities
31Your counsel referred to various decisions in relation to the more serious offence – that is, Charge 2 involving home invasion, contrary to s77A of the Crimes Act 1958. Of course, such cases carry with them the caveat that each decision very much turns on its own facts. The cases were:
(a) Wyka & Gardiner v R;[44]
(b) Clark v R;[45]
(c) Brown v R;[46]
(d) DPP v O’Brien.[47]
Your counsel submitted, appropriately in my view, that given the relevantly-recent introduction of s77A of the Crimes Act 1958 – that is the offence of home invasion – that the similarities between the types of 'confrontational' aggravated burglaries referred to in DPP v Meyers[48] and Hogarth v R[49] and home invasion offences, that aggravated burglary sentences may also be relevant in any assessment of an appropriate sentence for a charge of home invasion.[50]
I have read all such decisions referred to by your counsel.
[44][2020] VSCA 104
[45][2020] VSCA 125
[46][2021] VSCA 204
[47](2019) 280 A Crim R 1
[48][2014] 44 VR 486
[49](2012) 37 VR 658
[50]I also refer to the decision of DPP v O’Brien (op cit) at paragraphs [1]-[4]
The submissions of the Prosecution
32In the written submissions already referred to, counsel for the prosecution submitted, correctly in my view, that the most serious offence on the Indictment is Charge 2 relating to the home invasion. Ultimately, it was submitted that the only appropriate sentence in relation to such a crime is the imposition of a head sentence and a non-parole period.
33In particular, reference was made to the decision of DPP v O’Brien,[51] and in particular at paragraph 7, which states:
'This home invasion had all of the terrifying features referred to by this Court in Hogarth. Sentencing courts must continue to respond to conduct of this kind with substantial sentences. General deterrence is ‘a sentencing principle of great importance in cases such as these’.'
(Footnote omitted.)
[51]Op cit
34It should be added that the description by the Court of Appeal of the home invasion in O’Brien to have 'terrifying features' is clearly correct and in the circumstances of this matter, although serious, were not as serious as those in O’Brien, which did involve multiple offenders entering a house, initially using a sledgehammer in an attempt to break down the front door and smashing windows before terrorising those within the house, with a co-offender carrying a rifle.
35It was submitted that the subject offending across the Indictment consists of 'serious offences' and serious examples of such offences. In particular, in relation to the home invasion (Charge 2), it was submitted the following matters are relevant:
(a) you attended the home of the victims who were unknown to you quite early in the morning;
(b) you immediately assaulted Ta upon the door of the residence being opened to you;
(c) you continued the assault in order to gain entry and overpower Ta;
(d) having used violence to subdue Ta, you then proceeded to steal from him;
(e) you departed using Ta’s car, which was parked at your premises.
36Furthermore, it was noted that the home invasion and consequential assaults were not isolated incidents, given that you had earlier in the day stolen from another stranger’s vehicle only a short time before committing the other offences on the Indictment. In all the circumstances, it was submitted that your moral culpability for this offending is high, and reference was made to the Victim Impact Statement of Ta describing the various consequences of your home invasion.
37Counsel for the prosecution also referred to the Court of Appeal decision of Mang v R[52] and noted that the Court of Appeal described a sentence of four years’ imprisonment for home invasion as falling 'comfortably within the available range'.[53]
[52][2022] VSCA 10
[53]See Mang (op cit) at paragraph[24]
38It was submitted that your offending in this matter had some comparable features, but also had clearly some distinguishing features as well which involved the use of weapons, and had occurred against a backdrop of intergang conflict.
39Reference was also made to the Court of Appeal decision of Schaeffer v R,[54] wherein it was submitted that the Court of Appeal was not convinced that a sentence of six years and six months' imprisonment was manifestly excessive. Again, it was submitted that there was some similarity with the offending that involved the appellant making demands of a sole female occupant in the house and it took place in the early hours of the morning, and involved a home invasion on the basis of an intent to steal, whereas the subject matter is put on the basis of intent 'to assault'. I have read all cases referred to by counsel for the prosecution.
[54][2021] VSCA 171
Conclusion
40You have pleaded guilty to the four charges on the Indictment – two rolled-up charges involving theft (Charges 1 and 4), one charge of home invasion (Charge 2) and one charge of common law assault (Charge 3), all occurring when drug-fuelled on the morning of 9 April 2023. The offending extended over the period from approximately 6.30 am until sometime before 7.20 am, when police attended the premises of Ta and Nguyen, following a phone call from Nguyen to the police by way of a neighbour’s phone call after her escape from the house following the home invasion.
41As both counsel correctly submitted, by far the most serious offence is that involving the home invasion, given that it attracts a maximum sentence of 25 years’ imprisonment and, indeed, the inherent nature of such offending.
42On the evidence before the Court, such home invasion occurred at about 6.45 am on 9 April 2023, when you attended the address of Ta and Nguyen at a time that both Ta and Nguyen were asleep in their house.
43It is to be noted that, prior to such home invasion, you did not know either Ta or Nguyen. You did state in your record of interview, you knew the flats where Ta and Nguyen lived because you had 'bashed' a lot of 'junkies' who you asserted lived there and that was perhaps why you had undertaken the act of home invasion on 9 April. You also added that you had 'issues' specifically with 'junkies' and also had issues with 'Asians' at those flats, because someone had thrown something at your ex-girlfriend. When queried by the psychologist as to those remarks, you stated that you were unaware of such comments made at the interview and reflected that you must have still been 'substance affected'.
44After Ta opened the door of the premises and he saw you standing in front of him, you then pushed him backwards into the house, stepped through the front door and struck him in the face with a closed fist. During such time, neither you, nor the co-offender said anything to each other.
45I accept that the home invasion was over a relatively short period and did not involve a weapon. Although not the worst type of home invasion, I consider such offending to be at least of mid-level objective seriousness, given the following factors:
(a) you seemingly did not know Ta or Nguyen leading up to the home invasion and seemingly have no memory as to why such home invasion occurred;
(b) the offending occurred at a time when both Nguyen and Ta were asleep and were confronted by your loud knocking on the front door;
(c) after the door was opened by Ta and without a word on your part, you pushed Ta into the home, stepped through the front door and struck him in the face with a closed fist.
46It is also to be noted that Nguyen, who came out of the bedroom having been awoken by the sounds from the living room after your entry, was assaulted by the co-offender and told to go back into the bedroom, after which she escaped from a window in the bedroom, went to the residence of a neighbour and called police.
47I also refer to the Victim Impact Statement of Ta, where he asserts that he and his children are scared to leave the house, even to go shopping. Furthermore, he is scared that someone may follow them or seek to get into the house, and they are always scared if someone is near their house. I accept that this must have been a terrifying event.
48Furthermore, following your entry into the premises and the initial assault against Ta, you subsequently punched Ta a further time, causing his nose to bleed and causing Ta to tell you to stop hitting him. This event constitutes Charge 3 on the Indictment of common law assault. Again, the Victim Impact Statement makes clear that Ta suffered a 'bloody and broken nose' and was unable to get to a doctor on that day because it was a public holiday. Again, there would appear to be no reason why you assaulted Ta after gaining entry into the premises.
49Once in the premises, you took a 68-inch television, an iPhone and the keys to Ta’s Toyota RAV4 vehicle and placed all the stolen items in the vehicle and drove away, seemingly, ultimately to your residence, where the car was later found situated in front of your premises. The theft of such items are the basis of Charge 4 on the Indictment.
50Of course, earlier in the day prior to the home invasion, at about 6.30 am you broke windows of the vehicle owned by Mawson and ultimately removed her wallet from the vehicle, which contained four bank debit cards, and also removed a Jay Jay’s hoodie. Such evidence give rise to Charge 1 on the Indictment, being the theft of items, being the property of Mawson.
51I consider that you have shown little remorse in relation to the subject offending. In this respect, the psychologist considered that you displayed only partial insight into your offending behaviour and that you identified some precipitants of your behaviour, such as unemployment and mental health deterioration, but you externalised blame onto your substance use as the driving force behind your actions. There would appear to be little concern as to the impact on the victims of your crimes.
52I consider your moral culpability in respect to this offending to be quite high, although tempered by what I have stated earlier in these reasons, that, as a result of your dysfunctional childhood which has ongoing consequences, your moral culpability is reduced to some extent.
53Your criminal record, which you admitted, does involve theft offences on 14 July 2022 and 29 May 2019. Furthermore, again, you have previous offending in relation to unlawful assault on 14 July 2022, assaulting a police officer on 29 May 2019 and unlawful assault on 5 June 2017.
54In particular, your last attendance at court prior to the subject offending was 14 July 2022, involved contravening community correction orders and some of the thefts and assaults to which I have made reference. Of course, the appearance in the Dandenong Magistrates’ Court on 14 July 2022 resulted in the imposition of a further community order with various conditions. The subject offending occurred approximately eight months later on 9 April 2023.
55I consider that the relevant sentencing considerations do involve general deterrence, specific deterrence – that is to deter you from such offences which you have also committed in the past, being assaults and various thefts ꟷ protection of the community and denunciation. As both parties submit, the only appropriate sentence in relation to the most serious offending of home invasion is one of immediate imprisonment as a head sentence with a non-parole period. I intend to convict you of each of the offences and order various periods of imprisonment.
56I should add, in determining an appropriate sentence, I take into account the various matters to which I have made reference to in mitigation of your sentence.
57I am also conscious that, in determining an appropriate sentence, totality is appropriate and there will be a degree of concurrency in relation to the offending, given the relatively short period over which it occurred and in particular, the very close nexus between the initial punch thrown by you on entering the premises and the assault which occurred thereafter on Ta.
58As noted earlier in these Reasons for Decision, sentence was handed down on 28 June 2024 in relation to the co-offender. The co-offender pleaded guilty to one charge of home invasion, one charge of theft and a related summary offence of unlawful assault on Nguyen.
59Ultimately, the co-offender was sentenced to a Community Correction Order for a period of two years, with conditions beyond the normal conditions to include supervision, drug rehabilitation treatment, mental health rehabilitation treatment and judicial monitoring.
60I consider that no issues of parity arise given the following matters:
(a) the sentencing judge in relation to the co-offender clearly accepted that you were a 'controlling and aggressive person who likely influenced [the] co‑offender to [help] you';
(b) furthermore, and importantly, the sentencing judge in that matter accepted that one of the exceptions – s5(2H)(c)(ii) of the Sentencing Act 1991 ꟷ applied and accordingly he was not bound to order a period of imprisonment (in distinction to the present matter, wherein your counsel expressly declined to rely on any exception to a Category 2 offence);
(c) you were charged with not only the home invasion offence on which you were found to be a major player, you also had the extra charge of theft involving Mawson and, indeed, the home invasion also involved a subsequent closed‑fist contact with Ta, causing his nose to bleed.
61Please be upstanding:
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of imprisonment of four months;
(b) in relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of imprisonment of four years and two months (this will be the main sentence);
(c) in relation to Charge 3 on the Indictment, you are convicted and sentenced to a period of imprisonment of fourth months;
(d) in relation to Charge 4 on the Indictment, you are convicted and sentenced to a period of imprisonment of six months;
(e) I direct that two months of the sentence in relation to Charge 1; two months of the sentence in relation to Charge 3 and three months of the sentence in relation to Charge 4, be cumulated with the sentence in relation to Charge 2 and with each other;
(f) The total effective sentence is four years and nine months and I direct that you serve three years and two months before being eligible for parole;
(g) I declare that you have served, up to but not including today, 464 days’ pre‑sentence detention and that such days should be administratively deducted from the sentence ordered against you;
(h) Pursuant to s6AAA of the Sentencing Act 1991, I declare that, save for your pleas of guilty, I would have ordered a total effective sentence of six years.
62Yes, anything arising out of that?
63COUNSEL: No, Your Honour.
64HIS HONOUR: I will just say this. Mr Vaotuua, you can hear me. You have got some things going for you and part of it is your sister and a brother in Spain, and hopefully your father. I think it is excellent you are doing these things in prison, the courses you are doing because you are going to come out, well a little while to go yet, but you will come out and you have got that background of being a chef, and you have got a background of doing demolition work, and you may have other skills by the time you leave prison. You do seem to have some intention to trying to overcome the drugs and as you probably can tell better than anyone else, the alcohol and the drugs have been one of your significant downfalls over the years. Indeed, at one level you have a tragic background given your experiences when you were a child and your commencement of drug use and alcohol was also at a very young age, but if I can say anything to you, what you have to really concentrate on and you are doing things, I think at the right way at this stage, is to get over the drugs and alcohol. Because you get over that, you are still a young man, you have still got a lot of time in front of you.
65But on the other side of the coin this is considered a very nasty offence, home invasion, where people who are living innocently in a house are invaded, in this case quite early in the morning or early in the morning when they are asleep, not knowing you and then the male and female being assaulted for no apparent reason. And to this day you have not really offered any reason whatsoever why that took place and perhaps the only inference to be drawn is that you were so drugged and alcohol in you, that you just have got no idea why you did do it. But society just will not tolerate that and indeed that is why it is a reasonably serious sentence for you.
66Yes, I thought I would just add that. Anything else, gentlemen?
67COUNSEL: No, Your Honour.
68HIS HONOUR: We will adjourn
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