Director of Public Prosecutions v Winsor
[2023] VCC 1884
•18 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01722
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN WINSOR |
---
JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 &17 October 2023 | |
DATE OF SENTENCE: | 18 October 2023 | |
CASE MAY BE CITED AS: | DPP v Winsor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1884 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence- one charge of intentionally damaging property- one charge of aggravated home invasion- one charge of intentionally cause injury- two co-offenders- youth-youth justice assessment-category 1 offence;
Legislation Cited: Crimes Act 1958, Sentencing Act 1991;
Cases Cited:DPP v O’Brien [2019] VSCA 254, Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486, Azzopardi v R (2011) 35 VR 43;
Sentence: Total effective sentence of 3 years and 6 months imprisonment, with a non-parole period of 3 years' imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of Public Prosecutions |
| For the Accused | Ms J. Clarke | Greg Thomas Barrister and Solicitors |
HER HONOUR:
1Jordan Winsor, on 25 August 2023 after a 10-day trial, you were found guilty by jury of:
·One charge of intentionally damaging property, contrary to section 197(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years’ imprisonment;
·One charge of aggravated home invasion, contrary to section 77B of the Crimes Act, which carries a maximum penalty of 25 years’ imprisonment; and
·One charge of intentionally cause injury, contrary to section 18 of the Crimes Act, which carries a maximum penalty of 10 years’ imprisonment .
2On the same date you were found not guilty of the charge of armed robbery.
Circumstances of Offending
3Given the jury’s findings, I sentence you on the basis of the facts as they were alleged at trial pertaining to the three charges for which you were found guilty.
4You were aged 18 years at the time of the offending. The co-accused in this matter Andile Radebe and Shaurya Tomar, were aged 33 and 28 respectively.
5The complainant in this matter is David Hope, then aged 35 years who resided at 45 Lilian Street, Bulleen.
6On 30 January 2021, Mr Hope arranged with his friend, 16-year-old Lily MacNeil to meet up at Unit 7, 787 Elgar Road, Doncaster for a drink. As it turned out, this was an apartment in which Mr. Tomar was staying with his mother.
7Before going to the apartment, Mr Hope met with Ms MacNeil at an industrial site near Elgar Road, where they then met with you and another female named Anna. The four of you then made your way to the apartment on Elgar Road, where you were greeted by Mr Tomar. Whilst there, the four of you were drinking and smoking with Mr Tomar, and at one point Mr Tomar fell asleep on the couch, before his mother returned home, prompting Mr Hope and Ms MacNeil to leave.
8Later, you and Anna collected Mr Hope and Ms MacNeil and the four of you went back to Mr Hope’s residence in Lilian Street, Bulleen. Whilst there, an altercation occurred between you and Mr Hope, which became physical. You were assaulted by Mr Hope and evicted from his house. You returned at around 2:35 pm looking for Anna. That visit was captured on Mr Hope’s Ring doorbell camera. You appeared to be distressed. Sometime later, Ms MacNeil and Anna left the house separately.
9A few hours later, at around 7:30 pm, you and another male (who was unknown to Mr Hope but who has been referred to as Mr. Lawther) returned to Mr Hope’s residence. The visit was captured on Mr Hope’s Ring doorbell footage. You and Mr Lawther indicated that you were there, not to cause trouble, but because a friend had left something there and that there was a misunderstanding. There has been some suggestion that the items that you may have been seeking, were two gel blasters. You and Mr. Lawther left without gaining entry to the premises. Mr Lawther appears to have been doing most of the talking.
10At around 3.20 am the next morning, being 30 January, a neighbour who was finishing work, spotted three men in a white Toyota Corolla (registration THK 114) stopped on Lillian Street near Mr Hope’s residence. This car was later confirmed to be leased by your co-accused, Mr Radebe.
11At 3.40 am, the Ring doorbell footage then shows yourself and your two co accused, Mr Radebe and Mr Tomar, attending to the front door of Mr Hope’s residence in Lillian Street. You were wearing a black cap, a black jacket, and a black ski mask, but your face was visible. Mr Radebe was wearing a cap and sunglasses. Mr Tomar made no attempts to conceal his face nor appearance. Also visible from the CCTV footage is a silver item held in your right hand. The prosecution case was that you were holding a knife. On the jury's verdict, it is clear the jury were satisfied beyond reasonable doubt that you carried with you an offensive weapon, which in this case was particularised as a knife. The same can be said for your co-accused, Mr Tomar.
12The CCTV footage depicts Mr Radebe pick up a garbage bin and throw it towards the front door, causing the door and glass to shatter. At this stage, Mr Hope was awoken from the living room, where he had earlier fallen asleep. His evidence was that he heard the words ‘police, police, police - this is a search warrant’. He realised it was not the police and stated that he tried to go the kitchen to arm himself, at which point, you and your co-offenders gained entry through the broken glass door. Mr Hope claimed to recognise you and Mr Tomar.
13One of the neighbours gave evidence at trial that she heard shouting, glass smashing and banging. She said she heard the men shouting words to the effect of “Doncaster Police, open up”, and consequently did not call police.
14Once the three of you had gained entry to the premises, you repeatedly shouted “police”. Mr Hope recalls seeing each of you and your co-accused holding was he described as big and shiny kitchen knives which he says you were swinging around. Mr Hope said that at one point during the ordeal, a knife was pressed to his neck.
15You and your co-accused then forcefully grabbed Mr Hope and threw him into a bedroom next to the front door. Each of you then began to smash furniture and strike the complainant, using bed palings from the damaged bed. This caused injuries to Mr Hope’s head, resulting in bleeding. Mr Hope was threatened and told not to contact police. It was the prosecution case at trial that the three of you stole items from Mr Hope and consequently you were charged with the offence of armed robbery, but ultimately found not guilty of that offence by jury.
16The audio of the home invasion was captured in part of the Ring doorbell footage. You and your co-accused can be heard yelling words to the effect of “Room clear”, and Mr Hope recalls you using words such as 'this is the police”, “room clear” and “no suspects here”.
17The three of you then left the residence and returned to the white Toyota.
18Police attended at the address at approximately 3:45 am and observed broken glass panels in the front door and blood on the footpath in front of the house. Mr Hope was visibly bleeding from the top of his head and the premises appeared to be ransacked.
19Mr Hope was treated at the scene by paramedics for a laceration to the top of his head, and an abrasion to his lower back. Mr Hope declined transportation to hospital.
20Later that morning, a credit card was located by a locksmith at the premises, a credit card in the name of your co-accused, Mr Radebe. DNA swabs located from blood found within one of the room at the premises was forensically analysed and also matched the DNA profile of Mr Radebe.
21Police arrested you at your home in The Basin on 29 October 2021. During a search of your home, clothing was located that matched the clothing depicted in the Ring doorbell footage from 3.40 am on 31 January 2021. You participated in a taped record of interview. In that interview, you made a number of admissions and did not deny being present at the residence during the home invasion. You told police:
·You were heavily under the influence of drugs and that you went to the property because Mr Hope had stolen something;
·You said that you had met Mr Hope a few times before and had been to the Lillian Street address prior to that day;
·You said that you just ended up going there with [other unnamed co‑accused] to get back what was theirs;
·You said you observed tussling in the bedroom but you did not personally touch the complainant;
·You said there were five people present in the home during the offending, including Mr Hope;
·You said because of your drug intoxication you did not remember certain things; and
·You agreed that it was likely to be you in the Ring doorbell CCTV footage.
22Following your arrest, you were bailed but you were later remanded in July 2022 following allegations of other offending. You spent a month in custody and you were assessed as suitable for the Youth Justice Adult Supervised Bail Program. According to a Youth Justice report you demonstrated little compliance and although your attendance and engagement were initially positive, there was a decline in your attitude. Ultimately on 23 February this year, your bail was revoked and you were remanded in custody for this offending. You have remained in custody since that time. This period can be applied to presentence detention, which amounts to 237 days.
23Whilst you have been on remand you have been held at various prisons, during which time you have instructed your counsel that you have completed a number of courses. However, the Youth Justice Report indicates that you have not engaged in any educational programs. You are currently said to be working in the kitchen six days a week and you have regular contact with your family and some friends. Whilst in custody you have experienced no disciplinary issues and your urine screens have been clear.
24You were committed to stand trial on 16 September 2022. Your trial commenced on 11 August 2023.
25You ran your trial on the basis that you had attended with two others, but that you did not enter with the intention of assaulting Mr Hope, nor to steal and that you did not have an offensive weapon with you. It was further contended that you did not commit the offence of armed robbery.
26Given the jury verdict, I sentence you on the basis that you did enter the property with an intent to assault Mr Hope, and that at the time of the entry, you had on you an offensive weapon, namely a knife.
Victim Impact
27There is no victim impact statement in this matter.
Plea Hearing
28Following the jury’s verdict, a plea hearing was initially set down for mid‑November, along with the plea hearing of the other co-offenders. However, given that this trial had been given some priority as a result of the fact that you were due to turn 21 in October, I brought the matter back for mention in order to canvas with counsel whether an earlier plea hearing might be sought.
29Furthermore, although mindful of the Sentencing Act 1991 (‘the Act’) provisions mandating a minimum term of imprisonment and precluding the imposition of a Youth Justice Centre order unless certain requirements are met, I sought a Youth Justice Pre‑Sentence Report so as to enable the court to have as much information as possible, in order to have the full range of sentencing options available.
30Consequently, a Youth Justice Report was prepared dated 13 October this year. According to the report compiled by Adrees Shah and endorsed by Amelia van Lint, you have been assessed as unsuitable for a Youth Justice Centre order. Your counsel, Ms Clarke does not submit that I should make any such order. In any event, I am somewhat constrained from doing so by various provisions of the Act.
Personal Circumstances
31Your personal circumstances were canvassed during a plea hearing on 11 October 2023, followed by a further hearing on 17 October 2023. You come before the court with no prior criminal history.
32You were born on 19 October 2002 and you will turn 21 tomorrow. You are the eldest of two children and you were raised in The Basin, where you attended a local primary school. Both of your parents were employed but your mother ceased work due to chronic pain arising from a motor vehicle accident.
33Your secondary schooling was disrupted. You initially enjoyed high school at Melba College but in Year 8 you were bullied by a gang of older boys. Your Year 8 studies culminated in significant injury being sustained when you were pushed through a glass wall of windows. This led to your hospitalisation, you lost consciousness and you required surgery to remove the glass embedded in your body. According to your mother, you never recovered mentally, and this was compounded by the fact that those responsible received very little by way of punishment and you received no support or compassion from your school.
34You remained at the school because you had friends there but slowly there was a decline in your performance and you continued to be subjected to bullying behaviour. You ultimately had to change schools and in Year 9 you enrolled at Boronia K - 12 College but left halfway through the year. You had begun associating with negative peers and distancing yourself from your family, often failing to come home.
35After leaving school you have had sporadic employment in landscape gardening, carpentry and working as an arborist. It seems that although there was a period in which you worked hard for 12 months as a landscaper, you ceased this work as you felt tired of how hard you were working. Efforts by Youth Justice to assist you with employment during supervised bail, were unsuccessful.
36You also have a history of using substances including cannabis, Xanax and alcohol. This commenced whilst you were at school It is submitted that you were heavily affected by Xanax and alcohol at the time of this offending. Efforts to provide you with substance use support through Youth Support and Advocacy Service were unsuccessful.
37In a reference from your mother tendered on the plea, she describes that you had a normal upbringing in which you were involved within the community and participated in many sports. However, she describes you as a very anxious and in her words 'a full-on child'. Your mother alludes to the possibility of an un-diagnosed Attention Deficit Hyperactivity Disorder for which she did not seek to have you medicated. I will return to your mental health shortly.
38Your mother describes the impact that bullying had on you as a child, but she notes that you have a big heart and she describes you as a loving human. The Youth Justice Report indicates that there has historically been some examples of family violence incidents between you and your family members, some of which appear to be related to your substance abuse.
39According to your mother, your family want to see you get your life back on track so that you can live a normal and happy life. Your mother, who has been present during these proceedings via video link, states that she and your father will continue to support you and that they are planning to move to Lakes Entrance so that when you are ultimately released from custody you will have the best chance of a new beginning. You will also have the benefit of additional support from your grandparents who live in that area.
40When interviewed by Youth Justice you denied any mental health issues. Whilst you were on supervised bail you were encouraged to participate in a mental health assessment but you declined to do so, reporting that you did not need any support in this regard. I have very little material with respect to your mental health, other than the reports from Youth Justice which include that you have disclosed to custodial staff that you had previously been medicated.
41On this, Mr Winsor, I would say to you that if there are mental health issues which need to be resolved, and there may not be, but the earlier that you can have yourself assessed, the better it will be for you. If there are issues with respect to say Attention Deficit Hyperactivity Disorder or something else, these can be addressed with the appropriate supports and possibly medication. I am not saying that there are, but unless and until you explore this you may not be able to address any issues that you have. Ultimately whether you seek help for any of the issues that you have, including substance abuse, will be entirely up to you. It is not up to anybody else. It is your life, Mr Winsor, and only you can change it.
Sentencing Act 1991
42Aggravated home invasion is a Category 1 offence pursuant to the Act[1] which requires that a term of imprisonment must be imposed for offences of this type.
[1] Sentencing Act 1991 (Vic) s 3(1) (definition of ‘Category 1 offence’) para (ia).
43Furthermore, section 10AC of the Act directs that a non-parole period of not less than 3 years must be fixed unless the court finds that a special reason exists pursuant to s10A.[2] The Act directs that a non-parole period must be at least 6 months less than the sentence imposed.[3]
[2] Sentencing Act 1991 (Vic) s 10AC(1).
[3] Ibid s 11(3).
44Initially your counsel Ms Clarke submitted that special reason exists on the basis of section 10A(2)(e), namely that there are substantial and compelling circumstances that are exceptional and rare, and that justify doing so, relying on a combination of your youth, immaturity, and vulnerability to negative influences. However, this position was not pursued on the plea hearing and Ms Clarke did not proceed with the submission as to the existence of special reasons, and I must say, understandably so, given the very high threshold required to make such a finding. What that means in effect, Mr Winsor, is that when it comes to imposing a sentence on you there is a mandatory minimum period that I must impose and I do not have the option of imposing another sentence.
45The offence of aggravated home invasion is a Category A serious youth offence.[4] A young offender cannot be given a Youth Justice Centre order for a Category A serious youth offence, unless the court is satisfied that exceptional circumstances exist.[5] It is not submitted in this case that there are exceptional circumstances.
[4] Sentencing Act 1991 (Vic) s 3(1).
[5] Sentencing Act 1991 (Vic) s 32(2C).
Nature and Gravity of Offending
46Aggravated home invasion is by its very nature, a serious offence. This is reflected in the maximum penalty applicable, and the fact that Parliament has seen fit to set down a mandatory minimum period of imprisonment. Prior to changes in legislation, this offence might have been laid as an aggravated burglary. In DPP v O’Brien,[6] the Court of Appeal confirmed that sentencing decisions concerning home invasion as a form of aggravated burglary remain directly relevant to sentencing for this offence.
[6] [2019] VSCA 254.
47Home invasion style aggravated burglaries were discussed in Hogarth v The Queen[7] as particularly serious noting:
'Typically, a home invasion involves multiple offenders entering a person’s home, carrying weapons, intending to rob or injure the victims in revenge.....The entry of offenders- acting in anger and often fuelled by alcohol- is itself a terrifying experience for the householders, irrespective of what may occur after entry.'
[7] [2012] VSCA 302; (2012) 37 VR 658.
48This encapsulates what occurred here when you attended with your co-offenders, smashing your way in and assaulting Mr Hope in the early hours of the morning.
49When assessing the objective gravity of home invasion, regard should be had to the list of non-exhaustive sentencing factors set out by the Court of Appeal in DPP v Meyers[8] relating to the offence of aggravated burglary, but equally applicable for this offence. Some of these factors are an element of the offence of aggravated home invasion in any event, such as the use of a weapon and offending in company. Some of those matters set out in DPP v Meyers include:
(a) the intent at point of entry;
(b) the mode of entry;
(c) whether the offender was carrying a weapon;
(d) whether the offender was alone or acting in company, and pausing there, both of those last two matters are factors which already are part of the offence of aggravated home invasion;
(e) the time of day at which the burglary took place;
(f) what the offender knew or believed about who would be inside, and;
(g) whether the offender was someone of whom the victim was particularly scared.
[8] [2014] VSCA 314; (2014) 44 VR 486.
50As I have said here, by virtue of the offending being one of aggravated home invasion, the jury were clearly satisfied that you entered in company, armed with an offensive weapon, in this case a knife. The smashing of Mr Hope’s front door forms part of a separate charge and you are not to be sentenced twice for this, however it was through this smashed door that you gained entry. That you gained entry by violent means and in the early hours of the morning would have added to the terror and confusion experienced by Mr Hope. You were known to him, but I accept that you were not someone of whom he was particularly scared.
51There was a degree of planning and co-ordination, although the execution of the offending was not particularly sophisticated. The constant references to being ‘police’ under the pre-text of conducting a search suggests there was an attempt to make it sound as though what you were doing, was somehow legitimate. The offending lasted approximately 5 minutes- and so it was not a fleeting episode.
52Turning to your role; and to your understanding as to what was to be achieved by going to Mr Hope’s home, and by entering as you did. Ms Clarke contends that you were a follower, rather than a leader in this offending. In support of this submission, Ms Clarke highlights that you were the youngest of the three offenders, being 18 at the time, whilst Mr Tomar and Mr Radebe were considerably older. She submits that this is not a situation where similarly aged offenders engaged in conduct together.
53Ms Clarke submits that consideration must be given to the events that occurred earlier that day. You had spent time with Mr Hope initially at the apartment where Mr Tomar was residing and then at Mr Hope’s house. Of the three offenders, you are the person who had been to Mr Hope’s home before- and you were therefore needed by others to direct them to Mr Hope’s address. You had been ejected and then later, you attended with Mr Lawther, seeking to retrieve property said to belong to someone else.
54Ms Clarke submits that this attendance at 7.30 occurred in a relatively peaceful, non-confrontational manner, and it was not your objective to start any trouble which you expressed. That at that stage, you made it clear that you were not there to, in your words, 'start shit' and that there had been a bit of a misunderstanding, and you were seeking to get something back. Ms Clarke submits that in this instance, Mr Lawther was the person doing the talking, castigating you when you interjected.
55Further, it is contended on your behalf that you were recruited to attend by the co‑offenders. It is submitted that the CCTV footage reflects that Mr Radebe took the lead in terms of entry to the property, and that this is consistent with what you told police when interviewed, admitting that you had attended and entered Mr Hope’s home, but that Hope had stolen something from someone, and that you just went along as part of the efforts to get it back. Ms Clarke relies on your answers in the record of interview when you said “I just ended up going there with them to get back what was theirs”.[9]
[9] Unredacted ROI Q. 154.
56It is further contended that you were heavily affected by drugs at the time; and that you had met the other co-accused somewhere along your drug binge.[10] Your vulnerability and susceptibility to influences of older co-offenders is said to have been compounded by your drug use in the lead up to the offending.
[10] Ibid Q 28, 33-36, 64.
57When assessed by Youth Justice, the account you gave contained a little more detail than what you told police (although I accept when you spoke to police you may have been careful not to implicate any others). Your account to Youth Justice included that you had been in something of a relationship with Lily MacNeil, who had been at the premises earlier with you, and that Mr Hope was someone you did not like, and you thought that he was a ‘weirdo’. You told Youth Justice that when you returned with another individual after you had been ejected, (who I take to be Mr Lawther), that you went to retrieve an item that Ms MacNeil had left behind, and that you had been told to go with this individual to retrieve it. You alluded to the item being a form of weapon. Your account as to why you returned with the co-offenders later that night was scant on detail; you simply repeated that you were substance affected and had limited recollection as to what occurred.
58It is difficult to make an assessment of whether your role really was such that you simply found yourself caught up with other co-accused in seeking to enter Mr Hope’s home to carry out an offence. By the jury’s verdict, they have concluded that you, along with your co-offender’s entered Mr Hope’s home with the intention of assaulting him. This was the way in which the charge was particularised. Your account that it was to retrieve property was clearly rejected by the jury but that is not to say that there could not have been a secondary reason for you and your co‑accused attending the premises. This is perhaps consistent with the ransacked state of the property.
59There are a number of aspects of your conduct on the day in the lead up to the offending, which provide evidence of your existing connection with Mr Hope, that you had an earlier had an altercation with him, you were endeavouring to deal with a situation that necessitated in you returning to Mr Hope’s home, even after you had been ejected from the premises, purportedly to retrieve something.
60Mr Crouch, on behalf of the prosecution, submits that the objective evidence, namely the Ring doorbell footage showing you outside Mr Hope’s home calling for Anna and then later attending with another male, demonstrates that you were coming to the house seemingly to try to deal with a situation.
61Mr Crouch points out that when you and the co offenders returned at 3:40 am, you were the only common link with Mr Hope and his premises. Mr Tomar on the evidence had only briefly met Mr Hope earlier the same day and there is no dispute that Mr Radebe was somebody who was not known to Mr Hope.
62The prosecution submits that the inference is that you are the person who organised this; that you are the person with the reason to be there. I cannot say whether that is so. Mr Crouch submits that looking at the Ring footage you were an active participant; you had the knife on you as Mr Radebe affected entry and as soon as the door was smashed open, you went in. You were also shouting words to give the impression that this was part of a police operation. This, Mr Crouch argues, supports the proposition that you were the person seeking to return to the premises or at the very least you were well and truly a part of it, and that you were therefore not a mere follower.
63I am yet to hear the plea of Mr Tomar, but I have had the benefit of submissions tendered on behalf of Mr Radebe with respect to his purported reason for going to Mr Hope’s home. His counsel has highlighted that Mr Radebe was not known to Mr Hope. It seems there is no clear evidence as to how the three of you came to be at Mr Hope’s home, or what each of you understood was the purpose of attending when you set out to attend at his house.
64However, as I have said, the prosecution put its case on the basis that the three of you entered with an intent to assault Mr Hope, and consistent with the jury’s verdict, so it is upon this basis that I must sentence you. Whether you instigated the idea of the three of you attending at the premises, I cannot be satisfied to the requisite standard. Whichever of you formulated the decision to travel there and to enter in the way you did, again I cannot say. But I accept the prosecution submission that you were the person who had a previous connection with Mr Hope earlier that day.
65That is not to say that there is sufficient evidence that you orchestrated this offending. There is no evidence that you did. It may be that you did ultimately found yourself caught up in some sort of plan to enter Mr Hope’s home as part of a coordinated effort, but one which involved very little planning. Indeed, it is easy to see how a young person, affected by drugs, might find himself embroiled in something that, by the time you had arrived at the premises, had evolved into something more significant than you initially intended. This possibility may be more enhanced when a younger person is in the company of older people. But once at the premises, it seems from the CCTV footage, and from the evidence of Mr Hope, that you were no mere bystander; and I am not convinced that you were merely a follower once you were there. Nor can I say to the requisite standard that you were a leader.
66Ultimately, as I have said, I sentence you on the basis that you attended with the co-accused and that you were an active participant upon entry and once inside. You were yelling that you were police and at times you kept watch over Mr Hope. You were complicit in assaulting him. On Mr Hope’s evidence you indeed struck him. Whether you ultimately wanted to be there and participating or not, the fact is you did so, and there is no evidence of duress other than what you told police at interview that you had gone along with others. You appear to have minimised your role, but once there I find that you were an active participant.
67I accept that the injury sustained by Mr Hope was towards the lower end and accordingly when it comes to sentencing you for this offence I do not propose to make any orders for cumulation.
68Your age and immaturity are relevant when it comes to determining sentence. As I said you turn 21 tomorrow. You are therefore a youthful offender under the Act.
69The Act sets out the basic purposes for which a court may impose a sentence being just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
70The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated. Given your age, rehabilitation assumes primacy in the sentencing exercise.
71As Redlich JA recognised in Azzopardi v R,[11] young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’
[11] (2011) 35 VR 43 [34]-[35].
72As was emphasised in that case, rehabilitation of a young offender is in the community’s interests. Having said that, the courts are also less tolerant of young people committing violent offences such as this.
73Furthermore, as was discussed in Azzopardi, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation, given potential exposure to corrupting influences.
74In this case, you have been assessed as being ineligible for Youth Justice, and it seems likely that your term of imprisonment will be spent in an adult prison. This is a probable consequence in any event, of the mandatory minimum gaol provisions.
Prospects of Rehabilitation
75Your counsel submits that your prospects of rehabilitation are good, referring to your lack of prior criminal history, and your family support. I am prepared to accept this submission. However, I am concerned that you do not appear to have developed much insight into your offending, and moreover, even with the opportunities that you have had to work on your rehabilitation as provided by Youth Justice during your supervised bail, you chose not to engage. There appears to have been a degree of lethargy as to your preparedness to work on your substance abuse issues, or to explore any mental health concerns. Perhaps this is a reflection of your age and lack of maturity. Ultimately your prospects of rehabilitation are improved if you are prepared to accept the supports offered to you, whether they be through professionals, or from those closest to you. You are fortunate to have a family that remains supportive of you.
Proportionality and Totality
76Having been found guilty of 3 different offences, ordinarily some cumulation might be warranted. However, I note that the offending here occurred as part of a single episode and accordingly there should be a degree a concurrency, appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes, is met with a total and proportionate sentence.
Sentence
77Accordingly, Mr Winsor I sentence you as follows.
78On Charge 1, damaging property, you are convicted and sentenced to 1 month imprisonment.
79On Charge 2, aggravated home invasion, you are convicted and sentenced to 3 years and 6 months imprisonment.
80On Charge 3, intentionally cause injury, you are convicted and sentenced to 2 months imprisonment.
81The sentence imposed on Charge 2 will be the base sentence. I order that the sentences imposed on Charges 1 and 3 be served concurrently with the sentence imposed on Charge 2 and with each other.
82The total effective sentence is therefore 3 years and 6 months' imprisonment.
83I fix a period of 3 years' imprisonment before you can become eligible for parole.
Pre-sentence Detention
84Pursuant to section 18 of the Sentencing Act 1991, I declare 237 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
- - -
0
4
0