Director of Public Prosecutions v Wazin
[2020] VCC 1598
•6 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00284
Indictment No: K11927009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN WAZIN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 September 2020 |
| DATE OF SENTENCE: | 6 October 2020 |
| CASE MAY BE CITED AS: | DPP v Wazin |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1598 |
REASONS FOR SENTENCE
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Subject: Aggravated burglary, RCI, theft, obtain property and attempt to obtain property by deception (2 each); summary offence of committing indictable offence on bail. Relevant Children's Court prior criminal history. Youth. 18 at time of offence, 19 as at time of sentence. On bail at time for attempted robbery and RCI. Also on parole. Relatively poor prospects. Assessment for suitability for YJC found not suitable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Siggins | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1 Alan Wazin, you have pleaded to seven charges laid on the indictment filed before the court, being one charge of aggravated burglary, one charge of recklessly causing injury, one charge of theft and two charges each of obtaining property by deception and attempting to obtain property by deception. The arraignment on those matters took place in July of this year. In addition, on
2 September of this year, which was when the plea was conducted before me, you also pleaded guilty to a summary offence of committing an indictable offence whilst on bail. The maximum penalties are correctly set out in the prosecution summary and I shall not repeat them. It is worth noting that aggravated burglary has a 25 year maximum term of imprisonment.
2 You were born on 10 December 2000. It follows you were only 18 ½ years old at the time of the offences on 18 July of last year and you are 19 now, turning 20 in a couple of months. You have a relevant Children's Court criminal history. You were on bail at the time of this offending.
3 In fact, you were admitted to bail on 10 July on charges of attempted robbery and recklessly causing injury. So only eight days before. Also, as is apparent from the youth justice assessment report, you were on youth parole.
4 This matter was opened to me on the 2 September by Mr Siggins, who appeared to prosecute on behalf of the Director of Public Prosecutions. He opened the case in accordance with an amended written plea opening that was dated 28 August 2020. Your counsel, Mr Newton, told me that but for the reference to you saying, 'I'm going to stab you' in paragraph 7, it was an agreed summary. Mr Newton was suggesting that it was possible you had not actually said those words and the victim's reference to it was perhaps him implying that threat from your conduct. That depended on a very strained and convoluted assessment of the evidence given by the victim at the committal and the suggested clarification when he was re-examined (see page 13, 16 and 18 and page 33). I am satisfied that the witness was saying that you had said the words, but I must say it is not a matter of any weight at all. You are not charged with making the threat or with armed robbery, or even robbery. My finding that you said what is described does not in any way aggravate the offences I am actually dealing with. Even had you been implying it by conduct it would make no difference to the way I would view the event or the appropriate sentence.
5 Having dealt then with that one issue in the summary, the rest of it is agreed. I see no need to repeat all the sentencing facts, as I will sentence in accordance with that agreed summary.
6 Very briefly stated, you entered a home unit in Dandenong as a trespasser, intending to assault, and carried with you an offensive weapon, being a golf club.
7 Your 32 year old victim had been asleep in that unit on the afternoon of 18 July 2019 when a woman knocked on the front door. The victim went to the front door and as he did so, you entered via the back door. She had been seen once or twice around the units by the victim. There is no evidence at all before me that he had any unpleasant contact with her such that she would have any basis to hold any grievance at all, nor any debt owed. You, on the other hand, were a complete stranger.
8 Having entered the property as a trespasser, you began yelling out to him words to the effect, 'What did you do to my sister? Give her money'. I note that the victim, in his evidence, said that you had asserted that he had promised her some money (see page 13). You struck him with the golf club twice; once to the face and once to the body. You then took possession of a knife from the kitchen and made a number of demands for money, and for his wallet, and when the wallet was produced and was found to be empty, you demanded the PIN for a key card. He had told you that he owed her no money (see page 48). He gave you the PIN. This is the context for the theft and the recklessly causing injury which shortly followed. As I said a moment ago, I am not dealing with you for armed robbery. During the course of a struggle the knife has cut the finger of the victim and he also sustained a cut to the shoulder; hence the recklessly cause injury relating to the use of that knife. The two strikes with the golf club do not form part of that charge.
9 You ran from the scene, and after another brief struggle out near the car, you ran off. Though the summary goes on to mention the acts of the female, you are not charged with those thefts.
10 You shortly after used the card at an ATM at the nearby shopping centre, and at a bottle shop, making a number of transactions - some successful, some not, hence the completed and the attempted offences of obtaining property by deception.
11 You were arrested on 23 July 2019 and you have been in custody since. The less said of your interview with the police the better. It was a bit of a shambles. I do not accept much of your account then, or now, as to your reasons for attendance or entry. In the interview you implied, and then went on to say, that you were entering as a result of some complaint from the woman who was at the front door, of her having told you of being inappropriately touched. You were pressed for details, as the police said that you were speaking in riddles. Up until a fair way into the interview you were not even admitting to being at the unit but were speaking of 'the guy' who entered having a reason. You had earlier pretended not to even recognise yourself in the CCTV stills. The police pressed you for further details and they were just not forthcoming. Well, if you were attending to support the woman and had received an account of her having been inappropriately touched and believed her account, why were you not with her at the front door? I do not accept the account you gave of the event to the police, or to the author of the youth justice report, or to Ms Lechner. Why were you entering and making the demands and taking the wallet and obtaining the PIN? In fact, why were you there at all? What was to be achieved? It is true that you mentioned her when in the house and said, as I have already mentioned, 'What did you do to my sister? Give her money', but you very swiftly moved on to making your own monetary demands.
12 It is impossible for me to know exactly the context that led you to this unit on this day. It is possible that something was said by her to you, but the speed with which you moved to monetary matters within the house does not suggest to me that that is particularly likely. I think it is far more likely that she was providing some form of distraction and this was all just something of a pretext. You would not give any details to the police about how you knew her, what she said when you met up and the process of deciding to go to the premises, and for what purpose, or why money was being sought.
13 Anyway, in the course of the plea I flagged my concerns as to your account to your counsel. You were not called on the plea. I am not satisfied on the balance of probabilities of your explanation for attending. I should say, even if I had been, it would not have been greatly mitigatory as, after all, you were entering premises as a trespasser intending to assault, which would be quite the wrong way to go about things; that is taking the law into your own hands in such a manner.
14 The fact though that I do not accept your interview account, or explanation given to Ms Lechner or the author of the youth justice assessment report, is not a matter in any way in aggravation. I make that very clear.
15 It does seem to me that you are still, to some extent, minimising your offending.
16 The injuries sustained are set out at paragraph 25. They required minor medical treatment - some stitches.
17 As I have said, you have been in custody since your arrest on 23 July of last year. Bizarrely, given the strength of the case against you, a committal was conducted in February of this year and your victim and other witnesses were cross-examined. It was a fruitless and unnecessary exercise. What possessed anyone to cross-examine the victim about his criminal history or his mental health and drug issues is anyone's guess, but they did. You were committed to this court and pleaded not guilty and a judge was told at the initial directions hearing that what was in dispute was what happened within the house. That contest, whatever it was, fell away, and you were arraigned in July of this year and pleaded guilty.
18 At least you have pleaded guilty, and at an early enough stage up in this court. So much then for my short summary of the summary.
Victim impact statement
19 There is no victim impact statement here. I hardly need one. This was a serious event. Aggravated burglary is an inherently serious crime. This one shook the victim's confidence and he says as much in his police statement. He felt insecure and unsafe in his own home, which is hardly surprising.
20 I take into account the impact of these crimes.
In Mitigation
21 Mr Newton conducted a very thorough plea on your behalf. If I may say so, he is always very well-prepared and knew a great deal about your background. That is exactly as it should be, but some counsel seem not to grasp the importance of that level of preparation. That criticism certainly cannot be made of Mr Newton. He relied upon a written outline dated 1 September but as has become customary, and indeed expected by the court during the COVID-19 crisis, it was no outline at all. It was in fact a comprehensive 11-page document. I am not, in these reasons, going to work my way through every aspect of that document, which is marked as Exhibit 1. These reasons will already be very lengthy, but of course I take into account all the matters he has raised both on on the date of the plea, and again this morning.
22 Mr Newton took me to your family background in great detail and relied upon the disadvantage evident there. He made submissions as to the relative seriousness of the offences as well as your motivation for offending. He conceded that you had a poor history before the Children's Court. He made submissions as to your prospects of rehabilitation. He placed before me two reports from a psychologist, Ms Lechner, together with an addendum from that same author. They were marked as Exhibit 2. One of those reports was an old one from the Children's Court Clinic. There was also some material dealing with your unhappy immigration predicament. Those documents were marked as Exhibit 3.
23 In mitigation, he relied upon the following:
· Your co-operation and your relatively early guilty plea in the midst of the global pandemic;
· The presence of some remorse;
· Your youth and disadvantaged background;
· The application of the 5th and 6th limbs of the case of Verdins[1];
[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
· An increase in your prison burden owing to the response to the COVID-19 pandemic; and
· The risk of deportation.
24 He conceded that confinement was required but argued that you should be considered for your suitability for a youth justice centre order given your age and immaturity and prospects of rehabilitation. Failing that, he was urging me to at least consider a combination type order, though the immigration position, it was conceded, posed some real impediments to that option. Failing that, a head sentence with a non-parole period, taking into account all these matters in mitigation.
Prosecution
25 The Director of Public Prosecutions was calling for an immediate custodial outcome here. That is, confinement of some description. The prosecutor relied upon some written submissions which I marked as part of Exhibit A. I am not going to work my way through those submissions either, as they were quite uncontroversial. The prosecutor queried the application of the principles from Verdins in this case and submitted that the threshold had not been attained. He made submissions as to the features of aggravation and mitigation.
Background
26 I will turn now to your background, but I am going to do so quite briefly. It is set out in Ms Lechner's report in detail, also in great detail in Mr Newton's written submissions from paragraph 2.1 onwards. There is much further history in the youth justice assessment report, which I marked as Exhibit B. Your family background is not seriously in dispute. I accept that background and simply see no need to restate it all now. I say, at the outset, it was a most disadvantaged and dysfunctional background. There was no joy in the first phase of your life in Africa and not much more in the second phase of your life in this country either. I am not going to set it all out. Very briefly then; you were born in December of 2000 and were only 18 at the time of the offence and are 19 now, 20 in December.
27 You were born in South Sudan and came to Australia when five years of age, in August of 2006, via a refugee camp in Kenya. Well, that is only a single sentence to cover the first five or so years of your life, but what an ordeal it must have been to that point. A lot had happened in those five years and not much of it good. How can that not leave a mark? Well, it has.
28 You were the youngest of four children. Your father was killed in the hostilities in your homeland. In this country, the Department of Health and Human Services were involved in your care. Your mother had some serious mental health and addiction issues. Your mother died in 2013, at a point when you were already in secure residential care. You were only 12 or so and you feel a sense of guilt, but you should not.
29 Schooling has been fragmented and you have not held down jobs. Accommodation has been transient and often enough quite unsatisfactory, even when your mother was alive.
30 No one would choose such a background as the one that was served up to you. You did not choose it. You had no say in it. As I said a moment ago, in discussing this with your counsel, it is just the way cards fell for you and it really was not much of a hand.
31 It was a background of trauma, dysfunction, disadvantage and I infer, distance from positive role models. Your father is not even much of a memory for you and your mother had her own significant struggles in this country. Your two oldest brothers were a good deal older than you (9 and 12 years older) and have apparently done well. You and the other brother went in a very different direction.
32 An offender's individual circumstances will always be of importance to a court. Your background was, as I have said, one of significant deprivation and disadvantage. The effects of childhood deprivation and trauma do not diminish with the passage of time. They are not just matters of historical significance that can be shrugged off or ignored. The case law recognises that they leave their mark. Of course they do. Our background shapes us. Your background does not actually explain this offending, but may well explain to some extent your descent into drugs.
33 It is your background and I am after all sentencing you, so of course it is relevant to my task. It may explain a fair bit about the faltering trajectory of your life. About the poor decisions that you make and have made. No role models, dysfunction, interrupted schooling and a low enough level of functioning thrown into the equation. You were certainly not in any way well equipped for adult life and, of course, you had only tipped into adulthood at the time of this offending. Your falling foul of the law is, in a way, really quite predictable, but I should say you are not powerless in all of this. As important as a background is, it does not lock a person into a pre-determined course. You have always had choices but you have not exercised them well, which again is probably not that surprising, given that background. Courts have intervened. Courts have tried to lead you away from making poor choices with no success at all.
34 What the case law in this area makes clear is that it will always be a matter of what weight to attribute to evidence of a disadvantaged background. The cases stress that social disadvantage will not attract the same weight in every case or in the same way. Sometimes it might lead to reduction, or even a substantial reduction in moral culpability, and also sizeable reductions in the weight given to general and specific deterrence. Sometimes it might be enough to take it into account in a general way, without those sizeable reductions. It does not, by the way, all head in one direction. As I said in discussions both at the time of the plea, and earlier today with Mr Newton, it can lead also to greater weight being given to the protection of the community.
35 The weight to be given to disadvantage will depend on the nature and extent of the disadvantage, the nexus, if any, with the offending, but also the nature of the crime and the relative importance in a particular case of sentencing considerations including deterrence, community protection and rehabilitation (see the case of Terrick[2]). It is clear from the case law that where there is a strong nexus then the mitigatory value will rise. (See the case of Snow[3], from earlier this year).
[2]DPP v Terrick [2009] VSCA 220 (“Terrick”)
[3]DPP v Snow (a pseudonym) [2020] VSCA 67 (“Snow”)
36 Much greater weight will be given where there is a direct nexus, however these Bugmy[4] principles, as they have come to be called; they do not depend on the existence of some proven direct nexus. Indeed, it will never be that easy to directly link events that are sometimes decades removed from each other.
[4]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy”)
37 Plainly, here there can be some real reduction in your moral culpability on the Bugmy principles. Also some reduction in the weight given to the other purposes of sentencing.
38 I give full weight to your background as that phrase is used in the case law (see Bugmy, Marrah[5], Snow and Terrick).
[5]Marrah v The Queen [2014] VSCA 119
39 I accept that your disadvantaged background is something that can be taken into account in this case in the way urged upon me by your counsel. It has not been an easy background at all and I take it into account as far as I am able to.
40 Part of your background of course is your history before the courts. You have a relevant prior criminal history, though entirely comprised of matters dealt with in the Children's Court other than a prior matter dealt with subsequently this year[6]*. It is an unfortunate history with 11 Children's Court appearances, though I note there is an aspect of duplication owing to the number of court orders you have breached - amongst them probation and youth supervision orders. I am not going to set out the past appearances chapter and verse. There is no point me conducting a line by line audit of your criminal history; these are matters of record. You have a number of relevant matters including for serious offending of attempted robbery and robbery, burglary, aggravated burglary, recklessly causing serious injury, a number of charges of recklessly causing injury and affray. Also other dishonesty, weapons and assault offending. You have been unable to comply with many, if not most of the court orders in the past. It is an unenviable record.
[6] *NB. It is not a prior conviction, as it occurred before the commission date of these offences but was dealt with subsequently.
41 Additionally, you were on bail at the time of this offending for attempted robbery and recklessly causing injury. Eight days later you chose to commit these offences. Your counsel told me that you had also been paroled in June of last year. That was confirmed in the youth justice assessment report.
42 Every effort has been taken in the Children's Court to avoid confining you. Ultimately, you were sent to a youth justice centre on no less than three occasions, though one of those sentences by the looks of it probably ran concurrently. Now you are in an adult prison, well, that is not surprising given the progression through the Children's Court sentencing hierarchy and the escalating offending. I was told that the matters for which you were on bail had been committed on 10 July 2019 and were dealt with by way of a fine at the Dandenong Magistrates' Court in January of this year. So, as I say, they were committed previously to the matters that I am dealing with and you were on bail for those at the time of the offences that I must sentence you for.
43 I turn now then to consider the other matters that have been raised by your counsel.
Guilty plea
44 I turn firstly to your plea of guilty. You have pleaded guilty at an early enough stage. It was not the very earliest of pleas, obviously enough. After all, there was the contested committal conducted. Witnesses were cross-examined in the lower court. It was your right to run a committal but, I must say, it is a shame that that occurred.
45 Being cross-examined can be a distressing experience. At least though it has been avoided up in this court. Mr Newton came into the matter after the committal. He conferred with you in May and very swiftly the case settled. That was sensible. He retreated from his written submission that it was a plea at the earliest practicable opportunity but he urged me to find that it was a reasonably early plea and I accept that submission.
46 You have facilitated the course of justice. You have taken early enough responsibility for your offending by pleading guilty. You have also done that in the course of the disrupted operations of this court arising from the response to the COVID-19 virus. I have regard to that as well.
47 The community has been saved the time, the cost and the effort associated with the conduct of a trial up in this court. I take these various matters into account in mitigation. I also take into account the fact that you made some damaging admissions to the police. However, if I may say so, the interview is not your best point, your youth is, and that no doubt played a part in the silliness in the interview, so that can easily be forgiven.
Remorse
48 I turn then to the issue of remorse. Your counsel argued that I should find that you had some remorse. You had pleaded guilty at an early enough stage. A guilty plea is often but not always indicative of some remorse. He pointed also to the observations of Ms Lechner.
49 Here though I have your interview, and then the conduct of the committal. In the interview you made all manner of denials and whilst you made some admissions, at the end of the day you were asserting that your victim had attacked himself. Also, I have your persistence in giving what I judge to be an unrealistic and pretty unsatisfactory and incomplete account of your actual reasons for attendance upon the house. I do not accept your account on the balance of probabilities. It makes no sense and in no way connects up with what you actually did and how you went about it. Further, even when giving that account you hint that it is possible that the victim deserved what he got. There is reference to that both in the report of Ms Lechner and also in the assessment report. I will, though, treat your early guilty plea as indicative of some remorse, and I take that into account, but beyond that I am not satisfied that remorse is greatly on display in this case.
Rehabilitation
50 I turn now to your prospects of rehabilitation. It seems to me that they go hand in glove really with your youth.
51 You have breached a large number of past court orders. Your offending has, in a way, escalated. Even being locked up in a youth justice facility on a number of occasions has not deterred you from offending. Being on bail did not deter you, nor being on parole. The youth justice assessment report that I called for gives a pretty comprehensive history of your efforts in custody or, on occasion, your lack of effort - both in youth justice and the adult jail. It is not that pleasing or encouraging.
52 I note that there were some issues in terms of the any involvement with the shiv that is mentioned in the Youth Justice Assessment Report and I put that aspect aside altogether.
53 You have had very little structure or support in the community and no history of employment or any real job skills. One of your brothers is prepared to have you home at the end of your sentence, and perhaps to provide employment for you. You have two older brothers who have stayed out of trouble. They are both much older than you. One of those, Kuju, who is nine years your senior, is prepared to have you live with his wife and three children in Melton, and in that way to complete the work of your deceased parents. That is at least something. So there is something awaiting you, and that is a lot better than nothing.
54 You are now in prison for the first time and I am told that you have not enjoyed the experience. It has been a bad time to be there, at least this year. You have been there for a sizeable period already and hopefully that would have some role in deterring you into the future, so too the sentence that I will soon impose. I wish you were behaving better. Your behaviour has been up and down and I note there have been a number of incidents. There were also many incidents in youth justice. Your engagement has been sporadic.
55 You have done some courses and programs whilst in custody and I was told that you are drug free. I note there is reference to a positive test in the assessment report.
56 On that topic, you have had long term struggles with drugs, and that sort of thing always casts a bit of a cloud over a person's future rehabilitation. So much will depend on that issue, and other issues, being meaningfully addressed. Those struggles are said to be connected up to your background and your symptoms of post-traumatic stress disorder (PTSD).
57 You are still very young, and with youth comes at least some hope for positive change. However, you seem not to have learnt your lesson over the years. You have, in the view of Ms Lechner, a high enough risk of future violent offending, though no doubt that risk may reduce with treatment and counselling.
58 It is hard not to be guarded here. Mr Newton's submissions were pitched at dealing with your reasonable prospects subject to doing a number of things. He said that you are, as he put it, in the 'last chance café', meaning that you would know that no more opportunities will be extended to you. Well, you surely must have had that understanding and been dwelling in that ‘café’ for some time, and yet you have continued to offend. The youth assessment report makes for some pretty grim reading, I am afraid. They suggest that you have poor prospects at this time.
59 If you were a good deal older, with an adult history mirroring the Children's Court history, one could only have the most pessimistic views for rehabilitation. They could almost be discounted. Given your age, I am prepared to find that you have some prospects of rehabilitation. I cannot put it higher than that. They are getting increasingly slim. It will very much depend on your ability to abstain from drug use altogether in the future. That has been difficult to this point and I really have no reason to be particularly optimistic, but I certainly am not going to write you off. There is still some hope for you, but time is running out for you. If you continue in the way you have over the last few years, if you continue to use drugs and continue to offend, your life will be a total train wreck. Prison will be your home away from home.
Youth
60 As I said a moment ago, youth and rehabilitation are closely connected. You were only 18 and a half years old at the date of the offence and are still only 19 now, 20 in a couple of months. So you are still very young. Though youthful you are, of course, nowhere near being a youthful first offender. Your Children's Court history is something of a worry. It is, however, your first appearance in an adult court if I put aside the appearance for the prior matter, which I mentioned earlier. It is your first taste of prison. Your counsel relies on your youth and was relying on the principles which apply to the sentencing of a youthful offender as set out in cases such as Mills and Azzopardi.
61 The law will usually treat youth as a matter of importance. That is because young people are more prone to making mistakes or to acting without deeply thinking through the consequences of their actions. They are more likely to be caught up in group settings, where peer pressure has a role to play. They are less mature. They are, generally speaking, then less culpable, and the benchmark for sending a youthful first offender to prison, or even to a youth justice facility, is a very high one.
62 Generally speaking then, more weight is devoted to rehabilitation and less weight is given to punishment and deterrence.
63 The law also recognises the potential corruption of a youthful offender which may occur in a prison setting and, to a lesser extent, even in a youth justice facility. Ms Lechner speaks of that risk. The authors of the youth justice assessment report are a bit more worried about corruption flowing from you upon those in youth justice. As I have said, you have a worrying history of misbehaviour within youth justice and within prison.
64 The law recognises the fact that young or youthful offenders are more able or likely to be rehabilitated. They are less set in their ways. They are younger. The community has a sizeable interest in the rehabilitation of any offender, but more so a youthful offender. So do the courts. At the end of the day, it can easily be forgotten but it should not be, no protection is needed from someone who is actually rehabilitated.
65 You are a youthful offender, and that is a matter of some significance to my task, but what is also clear from the cases is that the weight to be given to youth and rehabilitation will vary from case to case. It is not just automatically applied the same way in every case. Generally speaking, the more serious an offence the less weight will be given to youth and rehabilitation, and that is because more weight is devoted to some of the other purposes of sentencing. I will not lose sight of your youth. Its value is not extinguished here. There are some prospects of rehabilitation here, but this was serious criminal conduct by a person with relevant criminal history, and who has been given many opportunities by the Children's Court and not taken them. Someone who was on bail. Someone who was on youth parole. Your youth must surrender some ground to the other purposes of sentences here, but I do not lost sight of it.
COVID-19
66 I accept that the COVID-19 virus and the response to it by those running the prisons will increase your prison burden to a degree. It has already, since the limitations came into play some months back in March. You have been in prison throughout, as this crisis has developed. Prison is undoubtedly a more stressful environment for a number of reasons. Social distancing is not easy there. No doubt, there is worry amongst prisoners about catching the virus in such a setting where there is no real autonomy.
67 It is impossible for me to know precisely how the virus, or the response to it by those running the prisons, will impact upon you in the future. There are some lockdowns, but they do not exist across all prisons, or even all of a given prison, so I cannot conclude that they will necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist. Your counsel, in his written submissions, spelt out to me your prison experience (see paragraphs 2.6 to 2.6.5).
68 Part of that experience arose from your own alleged misconduct in prison. That was a three month lockdown from late April which has nothing at all to do with the COVID-19 virus.
69 It is impossible for me to forecast the impact of this virus either on those in the community or those in prison. Some cases have been discovered in prison in recent times but not that many, and not in the general population.
70 There has been a State of Disaster declared in July, and even though we are re-opening up and doing much better presently, I doubt if prison conditions will be returned to the pre-COVID-19 setting anytime soon. So prison life has been and is tougher for you; a first time adult prisoner. That will continue. I would expect there will be less time out of cells, less access to programs and courses and no access to in person visits for quite some time. I accept that there is an increased custodial burden in your case for these various reasons and I take this into account in your favour.
Deportation
71 I turn then to the issue of deportation. You are not an Australian citizen and face the risk of deportation. Your counsel placed before me a notice of intention to consider cancellation of your visa from the Department of Home Affairs, as well as a letter from a migration agent. The Departmental notice relates to a potential cancellation on character grounds - so discretionary cancellation.
72 However, let us assume that will be overtaken by the mandatory cancellation provisions, for a sentence of 12 months or more will bring into play the automatic cancellation provisions of the Migration Act 1958. That outcome will produce the cancellation of your visa.
73 You would then have rights under the Migration Act to request a review of any such determination and, subject to who reconsiders the decision, you would potentially then have a further right to review that decision, if necessary, in a tribunal.
74 Though the current notice relates to discretionary cancellation, as I say, I will work on the assumption that you will have your visa cancelled automatically, but in terms of those review powers I have no idea at all how they will play out. It would involve pure speculation on my part. I note the Sentencing Advisory Council paper 'Deportation and Sentencing' (from November 2019), which discloses that a decent enough proportion of those who have their visas cancelled automatically have the decision overturned (see paragraph 24).
75 So where will this all end up for you? Who knows. You will not, and that is rather the point. That uncertainty will be disturbing as you serve this sentence.
76 If your visa is cancelled, as one would expect it will be, you will then be looking at movement from prison, not back out into the community, but to an immigration detention facility with the spectre of deportation at the end of that process.
77 I do take into account the many cases dealing with the relevance of the risk of deportation including the Guden[7] line of cases considered in cases such as Allouch[8], and more recently discussed in the case of Loftus[9].
[7]Guden v The Queen [2010] VSCA 196
[8]Allouch v The Queen [2018] VSCA 244
[9]Loftus v The Queen [2019] VSCA 24
78 I accept that your custodial burden is increased, owing to your knowledge of this risk of deportation. It will make your life very uncertain as you serve out this sentence. This will not be some minor matter in your mind. You are not someone who has come recently to this country, but who has strong links to your homeland and really an indifference as to where you may end up. That is not the setting I am dealing with at all. You came to this country as a five year old child. You came from a war-torn nation and you have no real connection that I am awake to with any other country at all. Your surviving family members and your friends and your social structure are all in this country. The prospects of being disconnected from this country would be genuinely worrying for you. No doubt these aspects would feature in any request for the humane reconsideration of cancellation of your visa.
79 I do not believe I can make any judgment at all as to the likelihood of actual deportation occurring here and hence the loss of opportunity to reside permanently in this country. That involves just pure guesswork, and I am not able to guess or speculate on that score, but I do take into account the increased custodial burden arising from this risk. That is no minor matter at all.
Verdins/Psychological Reports of Carla Lechner
80 I have mentioned already the reports of Ms Lechner, which includes the old Children’s Court Clinic report authored by her. I am not going to set out slabs from the reports. I take them into account. They are useful in setting out your background, your level of functioning, as well as an assessment of your high risk of future violent offending. They also set out the impact upon you of the post-traumatic stress disorder. They point to the increased anxiety owing to the risk of deportation, which I have already spoken of a moment ago.
81 The reports are relied upon as enlivening the 5th and the 6th limbs of the case you heard discussed; the case of Verdins v The Queen. I do not believe that they take me very far in that regard. I quizzed Mr Newton as to the condition said to enliven these principles and I was taken to the symptoms of PTSD and symptoms of depression and anxiety (moderate) derived from the rudimentary testing conducted, which included your self-report. Your counsel relied mainly on paragraphs 1 and 2 of the addendum to Ms Lechner's report to enliven the two Verdins principles. Each opinion is very vague and each is based on the passing of a lengthy jail sentence. I do not know what 'lengthy' actually means in her mind.
82 I am prepared to make some very modest allowance for the 5th limb, as there is some evidence of PTSD. I do not believe that the 6th limb is greatly engaged here. It is yet another example of a report with very little by way of rigour, very little by way of explanation. I give the 5th and the 6th limbs only very modest weight, which may well in fact be more than is warranted, given the nature of the reports that are relied upon.
General remarks
83 I take into account the nature and the gravity of the offences. Your counsel concedes the seriousness of the offences. The most serious of the offences is undoubtedly the aggravated burglary.
84 You have a prior appearance for aggravated burglary from when you were much younger.
85 There is some reduction in your culpability owing to your youth and your disadvantaged background. None at all flowing from the fact that you were substance affected on the day.
86 There have been many cases dealing with the manner of assessing the seriousness of the offence of aggravated burglary. Cases such as Meyers[10] and Bowden[11].
[10]DPP v Meyers [2012] 44 VR
[11]DPP v Bowden [2016] VSCA 283
87 These were residential premises. You went in through the back door and entered alone, in the afternoon, so not in the early hours. You entered intending to assault and carried the golf club as a weapon, which you then employed. There must have been at least some rudimentary planning. The offence did not just occur. You were there with another person, who was at the front of the house.
88 Your counsel points to the absence of some matters of aggravation. Well, I am sentencing you for what you have done, not for what you have not done or what you might have done, so the absence of cable ties or a firearm or a more graphic manner of entry, or the various other aggravating features he lists, well, they are not matters in mitigation. This entry was graphic enough, a complete stranger coming in through the back door, wielding a golf club, intending to assault and moving to do exactly that.
89 As Mr Newton makes clear, aggravated burglary is an offence which is preparatory to the commission of other offences. The intent upon entry is conceptually distinct from what actually takes place after the entry has been achieved (see the case of Filiz[12]).
[12]Feliz v The Queen [2014] VSCA 212 at paragraph [16]
90 Many aggravated burglaries do not lead on to any other offending. Well, this one did. There was the nasty enough assault embraced by the charge of recklessly causing injury, as well as the theft within the premises. The recklessly causing injury occurred in the setting of a struggle. It just demonstrates how unpredictable an aggravated burglary can be. What it could lead on to. Escalation is always a risk, and that is because one can never predict exactly what will occur after entry.
91 You were on bail at the time of all of this and also on youth parole.
92 Aggravated burglary is an inherently serious offence. It is an inherently dangerous crime and one that can escalate out of control. It did here; blossoming into the other criminal conduct within the house that I am dealing with.
93 This was a confrontational aggravated burglary, as is plain from the particulars of the charge and all that you did. That is conceded. You were not entering by stealth. The courts have spoken over the years of the seriousness of confrontational aggravated burglaries. The recklessly causing injury is an offence occurring at the hands of a complete stranger who had entered as a trespasser. The venue was his home; a place in which your victim should have been safe. It was a frightening incident involving a weapon and requiring medical attention. Thankfully for him, and for you, the injuries were, relatively speaking, minor. The various dishonesty offences of course are far less serious.
94 Sentencing always involves the balancing of a number of purposes or principles. You have a sizeable enough criminal history, and though you do not fall to be sentenced a second time for any of that past offending, and it does not aggravate this offending or permit me to impose any disproportionate sentence, I do have to make judgments as to your risk of re-offence and the extent of the need to deter you and to protect the community from you. I have to make judgments as to your prospects of rehabilitation and your poor history before the courts is relevant to those various assessments.
95 I have to take into account your prospects of rehabilitation. I believe those prospects exist, but they are certainly not strong at all. I am not greatly optimistic and I have no cause to be. I do hope that you can succeed in the future, for if you cannot, you better get used to prison life.
96 I must consider the need for specific deterrence. That is the need to deter you from committing crimes in the future. I must give that real weight, given this offending and your past offending and lack of response to past court orders. I must deter you from offending into the future. Likewise, some weight must be given to community protection.
97 I undoubtedly would give more weight to each of these purposes if you were a good deal older. There can at least be some moderation owing to your youth, though not nearly as much as had you been a first time offender engaged in these events. Plainly, I must both deter you and protect the community from you. Your youth gives me no basis to ignore those purposes.
98 I must also denounce your conduct and punish you justly and proportionately. They are important enough purposes of sentencing.
99 I also have to deter others. That principle, known by us lawyers as the principle of general deterrence, is always an important consideration in this sort of case. There is a real need to deter other likeminded people from committing such serious offences as these, in particular, the aggravated burglary. Again though, your youth can lead to some moderation, as it does to all these purposes, but general deterrence is still of real importance in this case.
Current sentencing practice
100 I have to take into account the maximum penalties. Also the impact of the crimes. I must also take into account, as I have said, the nature and the gravity of the offences.
101 I am required to pay regard to current sentencing practices. That is just one of the matters that a court must have regard to. It is not a controlling factor, by any stretch of the imagination.
102 I have looked at the relevant snapshot from the Sentencing Advisory Council; being Snapshot No. 237 from April 2020, for the crime of aggravated burglary, and No. 241 of 2020 for recklessly causing injury. As to aggravated burglary, the statistical material discloses that when prison was imposed the most common sentence for aggravated burglary fell in the band between three years to less than four years. The second most common band, though, was between four to five years, with healthy bands between one to two years and two to three years. As to recklessly causing injury; when prison was selected the most common band of sentences fell between one and two years.
103 I have looked at overviews of sentences in the Judicial College of Victoria new sentencing manual dealing with aggravated burglary and recklessly causing injury (see 6.4.1.1 & 3 and 4.6.1.1 & 2).
104 I have looked also at the case of Hogarth[13]. That case, and many decisions since, make clear how seriously confrontational aggravated burglaries are to be viewed by the courts.
[13]Hogarth v The Queen [2012] VSCA 302
105 Now, statistics and sentences imposed in other cases have real limitations. Statistics are silent on all the matters of aggravation and mitigation which would usually explain the given sentence. It is no part of my job to sentence you based on what has been the most common or average sentence in the past, as disclosed in that statistical material. I am a judge, and one exercising a sentencing discretion in this case, not a statistician.
106 Your counsel referred to a few examples of sentences that I have imposed, including the matter of Bersey[14].I re-read that sentence and note that Bersey was judged to be suitable for youth detention. There are many other differences in matters of aggravation and mitigation. The outcome in that case of Bersey says nothing at all about what is required here.
[14]DPP v Bersey [2018] VCC 1368
107 Sentences imposed in other cases are not precedents. Every crime is different and so too is every offender. What I must do is sentence you for your crimes. They are undoubtedly serious, as is correctly conceded by Mr Newton in his very thorough plea on your behalf.
108 This was a serious enough confrontational aggravated burglary. It is a long way removed from the most serious examples of that offence but nowhere near the bottom of the range of offence seriousness. I have scarcely mentioned the recklessly causing injury but, again, that is no minor event at all. It is a physical assault with a weapon in the victim's own house by a trespasser, a complete stranger, and one requiring some medical attention. I take into account that it occurred in the currency of a struggle. The dishonesty offences are plainly less serious.
109 Confinement is always a disposition of last resort for any court. If there is any other option open to the court, then of course it must be selected. That is the law. Mr Newton conceded the inevitability of confinement but urged me to have you assessed for your suitability for detention in a youth justice facility. On the day of the plea I had real reservations as to whether such an option would even be open in this case, however I wanted to explore all options and so I have had you assessed and that report has been received. We have discussed it earlier this morning, Mr Newton and I. It is not optimistic and I do not regard it as being unduly pessimistic, if I may say so. It is founded on what has occurred in the past and what is known of you. I am not at all surprised by the outcome. As I feared may be the case, you are judged to be unsuitable for such an order by those people preparing the report. That is to say, you fail to meet either criteria and the authors have some fear of your potentially contaminating influence upon other inmates held at a youth justice facility.
110 Mr Newton had some criticism to make of the report. I regard it as unfounded, actually. As I said in the course of our discussions, in terms of the description of your having poor prospects, it was not that far removed, if removed at all, from the conclusions one could reach from the report of Ms Lechner, who spoke of the high risk of offence. It struck me that the report was quite measured, well written and highly informative to the court. It is obviously a matter of regret for any author in the position that they are in to be reaching the view that a person is not suitable. It is not a view that is reached all that often, from my experience, nor is it a view that is necessarily decisive. It is the view that they have reached in terms of whether you meet the criteria but their judgment that you are not suitable is not the end of my task. I have called for the report, and have received it, and that is the first of the pre-conditions to my making a youth justice detention order. The other is that the Court is satisfied that you meet one of the criteria. I could still opt to impose a term of youth justice and ignore their concerns. I have to reach my own view in terms of those criteria. The trouble is of course, they are expert in the management of youthful offenders at such institutions. You are not viewed as suitable to be held there. You have settled in to some extent at prison and have, to some extent, been playing up there as well. As I say, I discount from that consideration the aspect of the weapon found in the cell. You have been there for over a year.
111 You are judged not to have reasonable prosects of rehabilitation, well, that is hardly surprising, and nor are you thought to be particularly impressionable, immature or likely to be subject to undesirable influences in adult custody. Having read all the materials, including that report, I am not satisfied that you meet either of the criteria set out in s.32 of the Sentencing Act 1991. Section 32(2) would also require me to consider the nature of the offence and your age, character and past history. Those things would also, to some extent, weigh against such an order.
112 But having had you assessed, having studied the assessment report and having considered the criteria set out in the relevant provisions, I am not satisfied that you meet either criteria. That is the court not being satisfied, not just the author. So in those circumstances I do not believe that it is an option, for me to impose a term of detention in a youth justice facility in this case. I do not believe that that option is a sensible one, or one that is open in the sound exercise of my discretion.
113 I believe that I am left with no option but to imprison you. It is then a matter of the length of the head sentence and the nature of the non-parole period.
114 Mr Newton in a way was hedging his bets and was suggesting that there might be some consideration of a combination type order. I just do not accept that a combination type order can seriously be contemplated here. Your lack of past response to supervisory orders is pretty telling. Such an order would not come close to achieving all the purposes of sentencing. Release onto a community corrections order would also not protect the community, there being a pretty leisurely manner in which those matters are returned to court upon a breach. Further, it is just inconsistent with the submission that plainly is made that your visa will be cancelled. You will not be in a position, practically, to engage in such an order, but that is not the reason that I move to pass terms of imprisonment.
115 I believe I am required to further imprison you to achieve the various purposes of sentencing in this case, and the sentences demanded are of such a dimension that a prison term in combination with a community corrections order is not even, as a matter of theory, open to me. It has got nothing to do with your immigration status.
116 I am required to fix a non-parole period when I sentence someone to a period of two years or more, other than in a handful of very rare situations set out in s.11 of the Sentencing Act, settings which do not apply to you. Plainly, a sentence in excess of that period of two years is required here, so I must, as a matter of law, fix a non-parole period. That also, in reality, rules out a community corrections order.
Totality
117 I pay regard to the principle of totality of sentence.
118 As I have said, the most serious crime is of course the aggravated burglary. I have a number of separate crimes here though. There is a tight time frame - I take that into account in providing for a level of concurrency. There is an overlap in that the aggravated burglary led on to the recklessly causing injury, and the theft, and that then led onto the deceptions and attempted deceptions with the card having been obtained, all whilst on bail and on parole. I have these different crimes with different elements and different conduct. There is a need for some cumulation as between some of the sentences to mark out the separate crimes that have been committed.
119 I am not satisfied that s.16(3B) of the Sentencing Act applies to my task. That provision relates to offences committed while released on parole and the need to establish exceptional circumstances to avoid cumulation. That provision relates to release on parole from a prison sentence. You were on a youth parole order relating to a term of detention and I do not treat that provision as having application.
120 Unless I otherwise direct, cumulation is however picked up by s.16(3C). That would apply, as you were on bail at the time of these crimes.
121 I do pay regard to the principle of totality and I have reviewed the effect of the sentence I am about to pronounce to ensure it is not crushing upon you and that the outcome is commensurate with your overall criminality. That criminality was high enough here. The only moderation in culpability arises from your age and background and you should understand that will become less pronounced as time goes on if you choose to come back before a court, given your past history and failure to abide by court orders.
122 I move now then to pass sentence.
Sentence
123 On Charge 1, aggravated burglary, I convict and sentence you to two and a half years' imprisonment. That will be the base sentence.
124 Charge 2, recklessly causing injury, I convict and sentence you to eight months' imprisonment.
125 On Charge 3, theft, you are convicted and sentenced to two months' imprisonment.
126 On Charges 4, 5, 6 and 7 - these are the deceptions, both completed and attempted, there is a unity in terms of that conduct. I believe it is open and appropriate and open to impose an aggregate sentence on those charges. On those four charges you are convicted and sentenced to two months' imprisonment.
Summary offences
127 On the summary offence of committing an indictable offence whilst on bail I convict and sentence you to seven days' imprisonment. On that matter I state that I have treated your being on bail as a feature of aggravation in relation to the other offending, and for that reason I am going to direct that the actual sentence imposed on this summary offence be served concurrently to avoid double punishment of you. Likewise, I make it plain that I am otherwise directing under the provisions of s.16(3C) to avoid the presumption of cumulation.
Cumulation
128 I direct then that:
· Two months of the sentence imposed on Charge 2;
· One month of the sentence imposed on Charge 3; and
· One month of the aggregate sentence imposed on Charges 4, 5, 6 and 7;
are to be served cumulatively upon the base sentence and upon each other. This produces four months' cumulation. The sentence that I have imposed on the summary matter, as I have said, will be served concurrently with these sentences.
Total Effective Sentence
129 What this results in then, it is probably difficult for you to do the calculations, is a total effective sentence of 34 months or two years and 10 months' imprisonment.
Non-Parole Period
130 I fix a period of 20 months during which you will not be eligible for release on parole.
131 Did each of you do the sums? Was the pre-sentence detention 441 or 440 days?
132 MR SIGGINS: Your Honour, I've done the sums. At 440 I didn't count the date of the 02/09. So that calculation, Your Honour's correct; being 441.
133 HIS HONOUR: Yes, okay then.
134 MR SIGGINS: Not including today.
135 HIS HONOUR: Yes, all right.
Section 18
136 You have already spent the period of 441 days by way of pre-sentence detention, Mr Wazin, and of course that is to be declared as having been served pursuant to this sentence. You have already served 441 days of these sentences.
Section 6AAA
137 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to four years and two months' imprisonment. I would have fixed a non-parole period of three years.
Ancillary
138 Now, there were a couple of ancillary matters as well. There was a forfeiture order relating to the cash and a disposal order relating to the various bits and pieces on the schedule - being the golf club, the iron and the knife and thongs. There were no issues about these orders, Mr Newton, were there?
139 MR NEWTON: No. As amended, Your Honour, they were agreed. Yes.
140 HIS HONOUR: All right. Well, there are two ancillary orders that I deal with at the end of these remarks. There's a forfeiture order sought relating to the cash seized from the bag that you were carrying. There's no opposition to the making of the order.
141 MR NEWTON: No, Your Honour.
142 HIS HONOUR: I have signed that order and pronounce it and the other order in abbreviated format. I am satisfied upon convicting you of the aggravated burglary that it's appropriate to order the forfeiture to the Minister of the cash referred to in the forfeiture order under s.33 of the Confiscation Act.
143 Secondly, there's an application for a disposal order brought under s.78 of the Confiscation Act for the various items that are referred to in the schedule. Again, there's no opposition to this order being pronounced. It's appropriate to make it. I'm satisfied that the property referred to is amenable to such an order. I order, pursuant to s.78 of the Confiscation Act, the forfeiture to the State of the property referred to in the schedule. I direct that it be held and managed in the manner contemplated by the order which I have signed.
144 Let me just see if there are any other matters. Any other matters I need to deal with at all, Mr Siggins?
145 MR SIGGINS: Nothing arising, Your Honour. Your Honour's dealt with the 6AAA considerations. No, there's nothing arising, Your Honour. Thank you.
146 HIS HONOUR: Mr Newton, any other matters I need to deal with at all?
147 MR NEWTON: Your Honour, there was a just glitch in the transmission when Your Honour announced the aggregate sentence for Charges 4, 5, 6 and 7. I got the cumulation figure but not the original figure for those sentences.
148 HIS HONOUR: Okay, that's fine. So I'll go back again. So the aggravated burglary was two and a half years. That's the base.
149 MR NEWTON: Yes.
150 HIS HONOUR: Recklessly causing injury, eight months. Charge 3, theft; two months' imprisonment, and Charges 4, 5, 6 and 7 in the aggregate; an aggregate term of two months' imprisonment.
151 MR SIGGINS: It please the court.
152 MR NEWTON: As it pleases the court. Thank you.
153 HIS HONOUR: And then there's the cumulation that I've pronounced. You have no issues with that in terms of the calculations of it. It produces four months cumulation.
154 MR NEWTON: Yes, that's fine.
155 HIS HONOUR: Which gets us to 34 months, or two years 10 months, with a non-parole period of 10 months. No other matters then from you?
156 MR NEWTON: No, sir.
157 MR SIGGINS: No. Thank you, Your Honour.
158 HIS HONOUR: All right. Well, thank you. Now, Mr Newton, you want to perhaps speak to your client about all of this?
159 MR NEWTON: I'd be most grateful, Your Honour.
160 HIS HONOUR: You want to do it now or not?
161 MR NEWTON: Yes please. If the link can be just kept open for a short time?
162 HIS HONOUR: Let me see how long we've got for -yes, we've got it. I mean, I'm happy to permit this, you can have a handful of minutes with him, but maybe you'll need to, at some stage, speak to him in a more private setting. But I won't be here, and the prosecutor won't be here, but my staff will be here of course, you understand. So, anyway, I'm happy to do that.
163 MR NEWTON: Yes. No problem.
164
HIS HONOUR: So once I leave the Bench then you can speak briefly to
Mr Wazin then. All right. Well, that completes the matter then.
165 MR NEWTON: I'm grateful, Your Honour.
166 HIS HONOUR: So thanks each of you for your efforts, and Mr Wazin should be grateful for your efforts, Mr Newton, if I may say so. But, anyway, that completes the matter. So what time are we tomorrow?
167 ASSOCIATE: 10 am tomorrow.
168 HIS HONOUR: I'll shortly have the court adjourned to 10 am. Once I've done that then the various parties connected to the prosecution - or, with youth justice - can be exited from the hearing. It'll leave just you and your client, you can have a brief word to him, but if there's a need for a longer sort of - and I'm not sure if your instructor is joining this as well; if he is, then he could stay online as well – but if it needs a longer sort of discussion then you'd need to make provisions to chase him down in a more private setting, Mr Newton. But, anyway, that completes the matter, so I'll adjourn till 10 o'clock tomorrow please. Yes, thanks.
169 MR NEWTON: As Your Honour pleases.
170 HIS HONOUR: Thanks.
171 MR SIGGINS: It please the court.
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