Director of Public Prosecutions v Vicendese

[2019] VCC 817

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00527

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA VICENDESE

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2019
DATE OF SENTENCE:	4 June 2019
CASE MAY BE CITED AS:	DPP v Vicendese
MEDIUM NEUTRAL CITATION:	[2019] VCC 817

REASONS FOR SENTENCE
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Subject:  Criminal law – Sentencing

Catchwords:  Home invasion – Causing injury recklessly – Possession of a drug of dependence – Youthful offender – Participation in sentencing conversation – Youth Justice Centre detention – Disparity in sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Teo	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms K. Roussos	Melinda Walker

HER HONOUR: 

1Joshua Vicendese, you have pleaded guilty to one charge of home invasion, contrary to s.77A of the Crimes Act 1958; one charge of causing injury recklessly, contrary to s.18 of the Crimes Act 1958; one charge of possession of a drug of dependence; and a related summary charge No.3, possess prohibited weapon.

2Each of the charges is serious and this is reflected in the maximum penalty that is set out by Parliament. 

3For home invasion that is 25 years' imprisonment. In addition, home invasion is a Category 2 offence and as a consequence of that, the court must make a custodial order under Division 2 of Part 3 of the Sentencing Act, unless certain circumstances are satisfied, and I will refer to that later in the sentencing remarks.

4In respect to the recklessly cause injury charge, the maximum penalty is five years' imprisonment. 

5In respect to possession of a drug of dependence, the penalty, where the offence is not committed for the purposes of trafficking is 30 penalty units or one year imprisonment. 

6In respect to the related summary charge, the penalty is 20 penalty units or two years' imprisonment. 

7I will now sentence you on the basis of the Crown opening that was read by Mr Teo at the plea hearing. 

8The offending, the subject of the first two charges on the indictment, took place on 16 December 2018.  At that time, you were in the company of Patrick Yeoman and two other unknown male persons.  You were aged 19 at the time.  Mr Yeoman was aged 26. 

9The victims in this matter were living in a bungalow at the rear of a property in Brunswick East.  They are Tony Dagher and Katherine Telenta.  Both those persons were not known to you at the time of the offending.

10They had returned to their bungalow at about 12.30 am.  A short while later, Yeoman together with you and the third unidentified male offender entered the property through a side gate and made your way towards the rear of the bungalow.  Yeoman and the unidentified male were in possession of baseball bats and you had an imitation firearm concealed in your waistband.  You remained outside.  Yeoman and the other male concealed their identities with masks.  I note you did not have a mask.

11On reaching the bungalow, the other unidentified male opened the door and stepped inside and asked the victim, Dagher, for money.  He said to him, “You know me.  Where's the cash?”  The victims and the third co-offender, who is the unknown male, began to argue.  Dagher said he did not know that person and did not believe that he owed that person any money.

12Whilst outside the bungalow, you then attempted to conceal your face by lifting your shirt over your mouth and raising a jacket over your head.  You removed the imitation firearm from your waistband and Yeoman took it from you.  He turned on the light attached to the top of that imitation firearm and reached into the bungalow and pointed it in the direction of both victims.  Those facts constitute Charge 1, the home invasion.

13Dagher continued to argue with you of all and approached your group.  Yeoman and the other unidentified male retreated from the bungalow to where you were.  You then took a baseball bat.  Dagher closed the glass door of the bungalow in order to keep you out, and as he attempted to lock the door, the other unidentified male swung his baseball bat and smashed the glass door, causing Dagher's hand to go through the glass and injuring his right forearm.  There was a 15-centimetre laceration that was later operated on at St Vincent's Hospital.  Medical evidence confirmed he had injured a tendon.  Those facts constitute Charge 2, causing injury recklessly.

14You were arrested on 20 December 2018 at a house in Coburg.  During the time of your arrest a small amount of crushed Xanax was located as well as a knife and taser and that constitutes the possession of drug dependence charge and the summary charge possess prohibited weapon.

15At the plea hearing, you admitted your prior criminal history.  There are three court appearances, two involving the Children's Court and one in the Magistrates’ Court.  The first appearance was on 27 July 2017; the second appearance was on 19 July 2018; and the final appearance was at Ringwood Magistrates' Court on 31 August 2018. 

16The two appearances the subject of the Children's Court matters involve substantial consolidations, involving some significant offending on your behalf. In the past, you have been dealt with without convictions being recorded and being released on Youth Supervision Orders. 

17At Ringwood Magistrates' Court you were dealt with for dishonesty offences and other offences and without conviction, you were placed on an Adjourned Undertaking.

18The offending the subject of the Indictment, breaches the Youth Supervision Order and also the Adjourned Undertaking and that constitutes aggravating features of your offending.  You are yet to be dealt with in respect to those breaches. 

19I have had regard to the context of the offending, insofar as you committed the offence whilst drug affected, you were with known drug associates and at the time, you were couch surfing, living a very chaotic lifestyle.  You had known Mr Yeoman for about a year, but otherwise I do not have any other information about your relationship with the other two unknown males.

20Whilst providing a context for your offending and an explanation as to why you would involve yourself in such serious behaviour, it does not excuse your behaviour and the court must condemn your behaviour. General deterrence, specific deterrence and protection of community, are matters of some significance in formulating your sentence. 

21I sentenced your co-accused, Mr Yeoman in respect to a charge of home invasion, causing injury recklessly and possession of a drug of dependence to a total effective sentence of four years and six months with a non-parole period of two years. 

22There are differences in terms of your situation to Mr Yeoman’s that justifies a disparity of sentence.  He was an adult, aged 26 at the date of the offending and he did have some prior criminal history of relevance.  However, you are a person who is youthful and the principles that apply with respect to sentencing youthful offenders means that the focus of this court must be on your ultimate rehabilitation. I will have regard to the principles set out in a case known as The Queen vMills[1].  Those features are such that your situation is different to Mr Yeoman and justifies a disparity in sentence, in terms of the type of disposition that I will be imposing upon you. 

[1] [1998] 4 VR 235

23It is conceded that the gravity of the offending is such that this offence of home invasion reflects a mid-range of offending for this type of offence and you are being sentenced on that basis.

24Mr Vicendese, your matter proceeded in the County Koori Court division, following arraignment a sentencing conversation was held.  Present at that conversation were elders and respected persons, Uncle Dave Farrell and Uncle Steve Delaney.  The elders condemned your actions and urged you to reflect on your behaviour and make the most of the opportunities that have been made available to you, to help you to reform. 

25You were well supported in court by your mother, Cathy and your father, Matthew; your partner, Lily and her mother, Diane; sisters, Rachelle and Jasmine; your younger brother, Anthony; paternal grandparents and members of your large extended family.

26Your participation in the Koori Court process was challenging and this is a factor that I accept in mitigation of punishment.  I have had regard to the Court of Appeal decision of Honeysett v The Queen[2] where they reiterate what was said in another case of the The Queen v Morgan[3], that participation in the Koori Court process is more burdensome than the traditional plea hearing and this is a factor in mitigation for sentencing, though the weight of that factor, depends on the circumstances of each case.

[2] [2018] VSCA 214

[3] (2010) 24 VR 230

27In your case, during the sentencing conversation you apologised to the victim, to the elders and to your extended family and expressed appropriate remorse.  You said that you wanted to stop offending and be a better person.  You have found the time that you have spent in adult custody on remand, difficult.  You have personally been threatened and intimidated and stood over by older, more hardened prisoners and subjected to other pressures. 

28You now acknowledge that you failed in the past to make the most of the Youth Supervision Orders that were imposed in the Children's Court and you are now open to receiving help from those within the system, that are there to assist you.

29You voluntarily participated in the Sentencing Conversation and you were genuinely engaged with the elders when speaking about your offending behaviour and plans for the future.  You chose not to hide behind your counsel and spoke directly about your offending. 

30As noted in the case of Morgan, participation in the sentencing process, may of itself be rehabilitative and I genuinely consider that that is the case in your circumstances.  Your participation was a positive step forward in your rehabilitation process and you have now received guidance from the elders on what it is that you can do, whilst you are in custody, that can provide you with support and structure for the future.

31I accept that your participation demonstrates remorse for the offending and also demonstrates that you do have insight into the reasons for, and the seriousness of, and the effect of your offending. 

32I accept that you are now in a state of mind which means that you are now more receptive to accepting help to give effect to your intention to reform, including by participation in appropriate rehabilitation programs. 

33You are very fortunate indeed, to have the raft of support that was present in court.

34I have received a letter from your girlfriend's mother, Alice Rogers, who confirms that you have been very open and positive to her about the changes that you need to make when you return home. Things like engaging with community, taking advantage of supports around you and working towards gaining an apprenticeship qualification and becoming a proud, responsible, young Aboriginal man.  She has confirmed that you are able to go and live with her family again, as long as you stay committed to being a respectful, valuable member of the community. 

35Mr Vicendese, I have had regard to your background and history.  You are a young Aboriginal man who has Aboriginality through his mother.  You are of Warlpiri descent and in addition, you have Italian cultural heritage through your father. 

36You are the middle of six children.  Your parents moved to Darwin where you were one year old and separated and divorced when you were around the age of four.  You then moved back to Melbourne with your father and your brothers and sisters.  You had minimal contact with your mother from time to time, although I note she was present here today and remains supportive of you. 

37I have had regard to the comprehensive letter setting out background details and family information, that was received from your father, Matthew and I do not propose to refer to it in any further detail, other than to say, I note that you have a very good relationship with your father and extended family. 

38You have had a positive upbringing but there have been difficulties in the past associated with difficulties that you experienced at school, being bullied because of your Aboriginality and also problematic drug use from an early age.  You commenced using cannabis at age 13 and methamphetamines from age 14. 

39I note that you had excelled in sport up until the age of about 13, but due to knee injury ceased, and it is around this time that the problematic drug use commenced. 

40In the past, you have successfully completed a drug rehabilitation program through Bunjilwarra, however you relapsed into drug use in March 2018 and that was the cause of you maintaining a crime lifestyle that led to these offences occurring.  Currently, you do have positive protective factors and I have already referred to the extended and extensive family supportive network that you have, the promise of a place to live with Lily and her mother, and also people who are properly engaged in the community remaining supportive of you for the future.

41In mitigation, I have had regard to all the matters that have been put on your behalf.  I have also had regard to the material filed from Carla Ferrari, consultant psychologist. I noted her supplementary report states that you have experienced a worsening of your depressive symptoms, now said to be within the severe range, with anxiety and distress as well as symptoms of major depressive disorder.  She notes that you are an amphetamine user who has a disorder in partial remission and an alcohol use disorder in partial remission in a controlled environment. 

42She also states that you do have some symptoms of borderline antisocial behaviour, however that is complicated by your substance use and she notes that you have attention deficit hyperactivity disorder. 

43For the future, she recommends treatment including referral to a psychiatrist, as well as also for other treatment to manage your behaviour.  She expresses the opinion that having regard to your present condition, there is a real likelihood that if you were to receive a further custodial sentence, it would be more difficult for you than an individual without your psychological profile and background.

44Also she noted, given your trauma history of being severely bullied, your cultural background and being one of the youngest in the adult prison, that you are a target for exploitation.   She noted that you were remorseful for your behaviour and you were committed to addressing your underlying offending behaviours, through appropriate treatment. 

45Having regard to her expressed opinion, I accept that limbs five and six of the Verdins[4] principles are enlivened. 

[4] Verdins; Buckley; Vo (2007) 16 VR 269

46In mitigation, I accept that the plea of guilty has been entered at the earliest stage and there is utilitarian benefit in that.  You will receive a discount on your sentence.  The plea was entered at committal mention.  You have spared the trauma for the witnesses of having to come to court and give evidence and therefore, you have facilitated justice.  I have regard to your youth and the principles applicable to of youthful offenders and I have also had regard to the principles as expressed in the decision of Bugmy[5].

[5]Bugmy v R (2013) 302 ALR 192

47Ultimately, it was submitted on your behalf, given your age, the experience of custody to date, which I accept has been extremely difficult and a salutary experience for you, further your vulnerability of being retained in an adult setting, and your psychological profile, that a sentence of youth detention is the most appropriate and just disposition.  Such a disposition can reflect the importance of the court underscoring how serious this offending is and condemning it, to deter you and others in the future and also to punish you.

48I have had you assessed as to your suitability for a Youth Justice Centre Order and a pre-sentence report prepared by Roula Dib dated 31 May 2019 confirms that you are deemed suitable for a Youth Justice Centre Order.  I noted that the writer's assessment reflects the sentiments set out in Carla Ferrari's report. That is, that you are exposed to undesirable influences in the adult prison system, that you have been subjected to real difficulties and since your placement in the adult justice system, you have recorded a deterioration in your emotional and mental well-being and she confirmed reports regarding attempts of self-harm and decline in mood.

49It is the assessment of Youth Justice that your prospects for rehabilitation are likely to continue to decline in prison.  I accept the expressed opinion of the writer and in all the circumstances, your sentence will be one of youth detention.

50Mr Vicendese, this offending is very serious, involving as it did, entering a property in the early hours of the morning with three other males, two of which were disguised and you were all armed, two with baseball bats and you were armed with an imitation firearm.  Those two persons that were present did not know you and your actions in invading their home, in the circumstances that have been described, would have been frightening for them and is an action that ought to be condemned.

51There were no victim impact statements filed on behalf of either of the victims, but as I said in respect to Mr Yeoman, common sense dictates that they would have been terrified by their experience. 

52I propose to make the formal orders now.  If you could please stand, Mr Vicendese?

53In respect to Charge 1 and Charge 2, and the charge of possess drug of dependence and the related summary charge of possession of a prohibited weapon, with conviction you will be detained in a Youth Justice Centre for a period of 33 months, which is two years and nine months[6]. 

[6] The provisions of 5(2H) of the Sentencing Act 1991 apply with respect to charge 1 and therefore the Court must make a custodial order under Division 2 of Patr 3 (other than a term of imprisonment in addition to making a Community Correction Order s 44).

It was not argued that the Court can be satisfied as to the circumstances contained within s5(2H)(a) to (e).

There is no barrier to the Court imposing a Youth Justice Detention order under Division 2 of Part 3 of the Sentencing Act 1991. The maximum period of detention that can be imposed in the County Court jurisdiction is 4 years.

54I declare that you have already spent 166 days in custody and that will be reckoned as a period of imprisonment already served under this sentence. I direct that be entered into the records of the Court.

55I will make the order for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act and I also make the disposal order sought.

56I make the following declaration pursuant to s.6AAA, but for your plea of guilty, I would have imposed a term of detention of three and a half years in a Youth Justice Centre.

57Joshua, the only thing that remains for me to tell you, is that there has been an order that you undergo a forensic procedure.  What that involves, is a cotton bud will be given to you and you have to scrape it on the side of your mouth and provided you do that, then you comply with the order.  I have made that order, because of the seriousness of the circumstances of the offending and the order is by consent and it is in the public interest.

58But I do have to say to you, if you do not cooperate, then the sample can be taken by way of a blood sample, and police may use reasonable force, but hopefully that will not need to be done.  So, what happens now is, you will be transferred into the youth justice system today and thereafter, provided you comply with all the programs and assessments and all the obligations in that system, you will then be the subject of youth parole.  I cannot set parole, where it is a youthful offender, that is a matter for the Youth Parole Board.  All right?  But the outer limit of your sentence is two years and nine months.

59MS ROUSSOS:  As Your Honour pleases.

60MR TEO:  If Your Honour pleases.

61HER HONOUR:  Very well.  I have signed that order in respect to the taking of a forensic sample and can you complete a disposal order.  My associate will have to complete the order.  You will have to complete it as soon as possible, because he has got to be transported to Malmsbury.  So, will Mr Vicendese be taken downstairs and then released to the youth justice people, to be transferred to Malmsbury today?  Is that correct?  Is that the normal process?  I am asking you.

62CUSTODY OFFICER:  Yes, it is.  It is.  They will, yes (indistinct).

63HER HONOUR:  Yes.  And Mr Bell is here, too.  What is the arrangement?  So I can tell him.

64VOICE (from body of the court):  Once the custody receive the order, Your Honour, he is to be kept separate from adult prisoners and he will be transported this day.

65HER HONOUR:  All right.  Thank you.  All right.  We are just fixing up the orders now.  All right, so I will leave the Bench so that Mr Vicendese can say goodbye to everybody and then he can be taken downstairs.  But he will have to be kept separately, now that he has been sentenced.  All right.  Just to make that clear. 

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