Director of Public Prosecutions v Webster

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-01131

DIRECTOR OF PUBLIC PROSECUTIONS

TRAE WEBSTER

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2019 and 11 December 2019
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Webster
MEDIUM NEUTRAL CITATION:	[2019] VCC 2239

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords:   Plea of guilty – three charges of theft – one charge of aggravated burglary – one charge of aggravated home invasion – no prior criminal record – serious example of aggravated home invasion – offender was in company with others and knew co-offender was armed with a knife – young offender – provided cooperation including identifying co-offenders – insight and genuine remorse – intellectual impairment enlivens Verdins principles – Category A offence with exceptional circumstances established.
Legislation Cited:   Crimes Act 1958, Sentencing Act 1991
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43.
Sentence:  Aggregate sentence of 2 years and 6 months detention at a Youth Justice Centre in relation to Charges 2, 3, 4, 5 and a fine of $500 on Charge 1.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms B Goding	Office of Public Prosecutions
For the Accused	Ms F Livingstone Clark	James Dowsley & Associates

HIS HONOUR:

Introduction

Trae Webster, you have pleaded guilty to the following charges:
Three charges of theft contrary to s 4(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment, Charges 1, 3 and 5;
One charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment, Charge 2; and
One charge of aggravated home invasion contrary to s 77B of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment, Charge 4.
You have no prior criminal record.

Circumstances of the offending

At approximately 6:30pm on Sunday, 7 January 2019 you attended at Matthews Liquor Store located at 263 Hampshire Road, Sunshine. You entered the store and walked to the section containing red wine close to the front door. You grabbed two bottles of red wine, one in each hand before running out of the shop without paying for the items. It is these facts that relate to Charge 1, theft.
At approximately 8pm on Monday 26 February 2018 you and co-offenders Biak Copah, Armando Murillo and an unknown third person crossed paths within the Sunshine CBD along with a female friend, Sue Young. Ms Young and the unknown male offender attended Matthews Liquor Store and purchased alcohol for the group to consume.
You drank with the group in various locations in the Sunshine area before you made your way to H V Mackey Reserve located on Anderson Road, Albion at approximately 11:16pm. At approximately 12:19am your group was seen on CCTV walking towards Anderson Road. While in the reserve your group continued to consume alcohol before Ms Young left you and your co-offenders and went home.
At approximately 1:15am on Tuesday 27 February 2018, you and your three
co-offenders attended Unit 5, 137 Anderson Road, Albion. Prior to attending at the address Mr Copah gave you a glove and a sock to put on your hands, which you did.
The four of you opened the unlocked garage door to the property and entered the garage before exiting through a doorway into the backyard of the address. One of your co-offenders opened an unlocked bathroom window and entered the premises before opening the back door for the others, including you, to enter.
Once inside you all remained in the downstairs area of the house and took a number of items from the downstairs area including, keys to a Holden Astra, keys to a Toyota Corolla, a Samsung Gear S3 watch, a Fast Track branded watch, a brown Levis Wallet, three mobile phones and a set of motorbike keys.
You and your co-offenders then left the property, leaving food scraps on the ground and turning on the gas stove. At the time of the entry six residents were sleeping in the upstairs area of the house. It is these facts that relate to Charge 2, aggravated burglary and Charge 3, theft.
At approximately 1:30am you and your three co-offenders made your way to Unit 1, 137 Anderson Road, Albion. You opened the unlocked garage roller door to allow you and your co-offenders access to the garage. While within the garage one of your group picked up a hammer and another had a knife. However it is conceded by the prosecution that you were not armed. You and your co-offenders opened a further door and headed into the backyard.
Once in the backyard, Mr Copah forced open a sliding window and you all entered the property. You went through items in the downstairs area of the house looking for items of value. Mr Murillo took an iPad, Mr Copah took a pair of shoes and one of you took the keys to a Toyota Aurion, a Mitsubishi Mirage and a Honda. You picked up a bottle of Chivas Whiskey before leaving it in the premises.
At the time of entry there were numerous people present in the house, including the victim Che Trang, who was in a bedroom on the ground floor with her five year old son who was sleeping with her. Ms Trang was awake and could hear noise but believed it to be her husband.
You and your co-offenders entered the bedroom, one jumping on the bed where
Ms Trang and her son were lying. Some of the group were speaking to Ms Trang but she couldn’t understand as she didn’t speak the language you were speaking.
Ms Trang tried to respond and was yelling to let her go before your co-offender on the bed got on top of her and put his hand over her mouth while pointing a knife at her.
The partner of Ms Trang, Edward Te Reo was asleep upstairs and woke to hear his son and partner screaming. He ran down the stairs making as much noise as he could. The three of you left Ms Trang’s bedroom and exited the house with some being seen by
Mr Te Reo whom he described to police. It is these facts that relate to Charge 4, aggravated home invasion and Charge 5, theft.
You ran back towards H V McKay Memorial Reserve. You still had the iPad, shoes, and car keys from Unit 1. The keys for the Mitsubishi Mirage were later found in a bush on the driveway of the properties.
Mr Te Reo chased your group outside before returning to check on Ms Trang, who had hidden in a bathroom with her son, before calling police. Ms Trang remained in the bathroom until police arrived.
At approximately 2:17am you were seen on CCTV arriving at Sunshine Railway Station.
At approximately 1:37pm police arrived at Unit 1 along with a Canine Unit. The Canine Unit obtained a track from the unit across the parkland and church area towards the train station. The sock and glove worn by you to cover your hands was recovered in garden beds in the reserve. Police reviewed CCTV in the area and identified you and the other offenders from that CCTV.
On Thursday 1 March 2018, you were arrested at your address and conveyed to Sunshine Police Station for interview. During your Record of Interview you stated, amongst other matters, the following:
·you were with three other males and a female and you were drinking alcohol;
·you were drunk and could not remember a lot of detail of what happened;
·you were sitting across the road when the three others came running out of the property but you never crossed the road;
·when you came running across the road you were scared and froze before running with them;
·you didn’t know any of the people you were with; and
·you were wearing a blue ‘hoodie’ and green hat but didn’t know who dropped the glove or sock.
Following the Record of Interview you made a statement regarding your involvement in this matter. In that statement you stated:
·that you were drinking in the park with three other males and decided to do a home invasion;
·you named your co-offenders included the unknown third co-offender;
·you and your three co-offenders entered a two storey house garage before someone, you believed was Mr Copah, picked up a hammer and they went through door into the backyard;
·Mr Copah had given you the glove and sock to wear on your hands;
·you and your co-offenders entered the house through a window, you then went back out of the house as you had had a change of mind and jumped back out the window;
·you were in the house for about five minutes and didn’t take anything, you then went to the door to leave;
·when you were outside you heard a lady screaming and heard the other offenders running behind you;
·you stated what the co-accused stole from the house and admitted to picking up a bottle of scotch but not taking it;
·you ran from the address with the others went to the Sunshine train station; and
·that you were sorry about what you had done, you were under the influence and were having problems with yourself.

Nature and gravity of the offending

Aggravated burglary and aggravated home invasion are very serious offences which is reflected in the maximum penalty imposed by Parliament being 25 years in respect of each of those offences.
In relation to the aggravated burglary, it is particularised on the basis of you knowing or being reckless to the fact that persons were present in the home you entered. In this instance six people were sleeping in the upstairs area of the home while you and your co-offenders stole the items the subject of Charge 3. While there is no evidence of confrontation with the owners of the property, in my view this is still a serious offence as you entered as a group of four into a private residence at night in order to steal while people were sleeping upstairs.
As to the aggravated home invasion, the aggravating feature of the offence is that you entered the victim’s home in company of your three co-offenders knowing that your
co-offenders had with them a hammer and a knife. What then unfolded was without doubt a frighting confrontation with the people in the house. Ms Trang was sleeping in bed with her five year old son. One of your group jumped on her bed, got on top of her and placed his hand over her mouth while pointing a knife at her. While this would have been a terrifying experience for Ms Trang, it is aggravated by the fact that this was also done in the presence of her five year old son.
Ms Trang’s partner woke to hear his son and partner screaming and was able to describe two of your group as you were leaving. This would have been a frightening experience for him also. Clearly you and your co-offenders gave no regard to the effect of your conduct on these innocent people who were otherwise entitled to feel safe in their own home.
The victims in this matter were approached in order to make victim impact statements and declined. However as already noted, it is self-evident that your conduct, as part of a group of young men, would have been a terrifying experience that will have a lasting effect on the victims.
The other features of the aggravate burglary and aggravated home invasion that I take into account are: the fact that you wore a glove and sock over your hands in relation to the aggravated burglary, that both the aggravated burglary and the aggravated home invasion occurred in the early hours of the morning while people were asleep in their own homes, and that both these offences occurred in the same location with you and your group simply moving from one unit to the next.
In my view the aggravated home invasion can only be described as a serious example of the offence. While you did not have a weapon on you, you were very much part of the group that entered the home with the intention of stealing and with the knowledge that your co offenders were in possession of weapons.
The aggravated burglary while not in the most serious category, is also a serious offence in this instance particularly when considered as part of the course of conduct that you and your co offenders were engaged in. You effectively went from one house to the next without any consideration of the people you may confront as you entered their homes in the middle of the night.

Personal circumstances

You are 20 years of age and were 19 at the time of the offending.
You were born in New Zealand and are of Maori descent. You moved to Melbourne to live with your father at age 14. Your parents had separated when you were six years of age and currently you have lost contact with your mother. You presently live with your father and stepmother in St Albans and you have a positive relationship with both of them.
You have several half siblings and one brother however you only maintain contact with your brother.
You attended school in New Zealand and completed year nine before moving to Melbourne. You have said that you attended many schools as a result of living between your mother’s and your father’s homes as an adolescent. You remain enrolled in the
St Joseph’s Flexible Learning Centre which is a school for young people that are at risk of disengaging with mainstream education, however you are not attending the school at present. You indicate that you have lost interest in school and also believe that you may be at risk if you return to that Learning Centre as you would return to mixing with a negative peer group. You state that you are easily distracted at school and although you experienced some learning problems, you did not receive any remedial assistance. You also have experienced behavioural problems at school and have stated that you would fight with other students and teachers.
You have been in two relationships of about two years each and you are currently in relationship with a young woman describing that relationship in a positive light.
Your partner attended court in support of you.
As to your employment history, you have previously worked in unskilled jobs including nine months in a factory constructing pallets and also driving a forklift. You state that the last time you were employed was about two years ago.
You commenced using alcohol at age 15 however you report that you have reduced your drinking to only on weekends when you say you drink up to eight stubbies of beer. You also state that you used methamphetamine in 2018 however you have not used this year. Thus it would seem that currently drugs and alcohol do not present as a major issue for you to overcome however I note that on your own admission alcohol played a part in your offending.
Two reports were prepared by Ms Jane Lofthouse, psychologist and tendered on the plea. Ms Lofthouse is also endorsed to practice as a clinical neuropsychologist.
In the first report dated 10 April 2010, Ms Lofthouse summarises the results of a number of psychometric tests she conducted on you and provides detail in relation to the results of each test. In summary, your overall score in relation to possible intellectual impairment fell within the borderline range marked by mild to moderate impairment across tests. Your full-scale intelligence quotient is below your predicted intellectual function and consistent with intellectual impairment that is likely to have occurred over time.
In the second report dated 22 June 2019, Ms Lofthouse essentially addresses specific questions which are directed towards the Verdins principles. While Ms Lofthouse acknowledges that your intellectual disability will cause difficulties for you in custody, she is not of the view that it will deteriorate. Further, Ms Lofthouse is of the opinion that your intellectual impairment would have contributed to the behaviour that led to the commission of these offences. That said, Ms Lofthouse also noted that your intoxication should be considered as a further factor in destabilising your behaviour and thus it would have been a further factor influencing your behaviour in the commission of the offences.

Sentencing considerations

First, I take into account your pleas of guilty.
The matter came before the Court for a sentencing indication on 3 September 2019. Although formally listed as a sentencing indication hearing, the real issue was the prosecution attitude as to whether a ‘special reason’ existed pursuant to s 10A of the Sentencing Act 1991 without which a mandatory minimum must be imposed pursuant to s 10AC.
In this instance the prosecution accepted in all the circumstances that is open that a special reason is able to be established, primarily on basis of your cooperation by providing a statement to police and your youth. Thus in the circumstances you were arraigned and pleaded guilty to the charges on the indictment.
While the plea is not a plea at the earliest opportunity, in the circumstances it has still avoided the need for a trial and most importantly it has avoid the need for the witnesses to give evidence and relive the events. As such your plea has facilitated the course of justice and you are entitled to credit for it.
Your co-operation and assistance in my view also demonstrates your insight into your behaviour and is indicative of genuine remorse. I note that in the statement you provided to police you also say that you are sorry for what you have done.
I take into account the cooperation you provided to the police by making a statement identifying your co-offenders. While you are entitled to be given credit for your cooperation, it has also resulted in you being physically assaulted on three occasions. Two of those assaults involved weapons and on the most recent assault which occurred on 5 November 2019, you were hospitalised with stab wounds one of which resulted in a laceration to your liver. Thus there has been a form of extra curial punishment that has resulted from your assistance and I take that into account.
As noted, you are now 20 and were 18 and 19 at the time of the offending. As such it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders and that they do have application in your case, I must also weigh those considerations with the seriousness of the offending in this instance.
In Azzopardi v The Queen[1], having reviewed the established authorities in relation to young offenders, Redlich JA said at paragraph 44:
'The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.'
[1] (2011) 35 VR 43.
As noted, I accept that your youth still enlivens principles in relation to young offenders and has application in this case. However in my view the other relevant sentencing considerations such as general deterrence, denunciation of your conduct, just punishment and protection of the community must also carry weight in the sentencing discretion in this instance. Home invasions particularly involving groups of young men are offences of a serious nature and a message needs to be sent that offences of this nature will attract stern sentences.
You come before the Court with no prior convictions however I was informed that you have been charged with offences while on bail for this matter which you are contesting. Nevertheless, on these offences you fall to be sentenced as a first time offender.

It was submitted that Verdins principles have application in this case. Specifically, that as that as a result of your intellectual impairment, your time in custody will be more difficult than that of a person who does not suffer from such a condition. I accept that submission. Further, while intoxication contributed to your behaviour on this particular evening, I accept that your documented intellectual impairment must also to some degree be taken into account as a contributor to your behaviour and decision making at the time of this offending.
As to your prospects of rehabilitation, despite the difficulties you face in terms of your intellectual challenges, you are still very young and you have supports in the community. As such if you are able to redirect your life away from negative influences and utilise the supports offered to you, in my view your prospects are able to assessed positively.
I had you assessed for your suitability for a Youth Justice Centre Order and you have been assessed as a suitable candidate. That report was written on 11 October 2019. However, because of the delay that resulted from your recent assault, I heard evidence from the writer Mr Stephen Riordan at the plea hearing on 11 December 2019 in order to confirm that you are still suitable. Mr Riordan confirmed that you remain a suitable candidate while acknowledging the risks that you may face in any custodial environment as a result of the assistance you provided to the authorities.
Finally, as the offence of aggravated home invasion is a Category A offence, pursuant to s 32(2C) of the Sentencing Act 1991 the Court cannot make a Youth Justice Centre Order unless satisfied that exceptional circumstances exist. In this instance the prosecution, fairly in my view, conceded that exceptional circumstances are able to be established primarily for the same reasons that special reasons are able to established. I accept that submission and find that exceptional circumstances are established in this instance.
Having taken into account the matters I am required to consider pursuant to s.32 of the Sentencing Act 1991 in all the circumstances in my view, a Youth Justice Centre Order is the most appropriate disposition.

Sentence

Mr Webster, please stand.
Trae Webster, in relation to Charges 2, 3, 4 and 5 on the indictment you will be convicted on each charge and sentenced to an aggregate sentence of 2 years and 6 months detention at a Youth Justice Centre.
In relation to Charge 1, theft you will be convicted and fined $200.
Pursuant to s 35 of the Sentencing Act 1991, I declare that 96 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that if not for your plea of guilty I would have sentenced you to a period of three years and three months' detention in a Youth Justice Centre.

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[2019] VCC 2239

19 December 2019