DPP v Baraka & Anor [2025] VCC 1620

Baraka: TES of 4 years and 7 months with a NPP of 2 years and 7 months. 819 days PSD reckoned as served.

DPP v Baraka & Anor [2025] VCC 1620 | Case summary | Zoe

[17]

Between 1.34 AM and 1.47 AM, Baraka and Pink are depicted on CCTV at St Albans Railway Station.
At 1.47 AM Baraka booked an Uber to 115-133 Waiora Road, Heidelberg Heights with a drop off time at 2.21 AM. At 3.51 AM Baraka booked a 'Didi' a trip from 127A Waiora Road, Heidelberg to an address in Sunshine North. Didi is an alternative ridesharing arrangement.
At 4.30 AM Thinh Lam his wife Tuong Nguyen and their infant child, were asleep in their bedroom at their home in Sunshine North. Also present at the premises in other bedrooms were Ngung Che, Sarah Ngyuen and Kevin Betts.
Baraka and Pink entered the house. Both were holding large knives. Both were wearing masks. Baraka and Pink both entered Lam's bedroom.
Almost immediately, Baraka asked Lam if he was 'selling weed'. He then demanded car keys. Lam provided Baraka and Pink with the keys to his car (the Honda Civic). The vehicle was registered to Tuong Nguyen. (Baraka Charge 1 - Pink Charge 1 - Home Invasion)
At this time, Baraka, still armed with a large knife, held Thinh Lam, Tuong Nguyen and their infant child in their bedroom whilst Pink scoured other areas of the house. (Baraka Charge 2 - False Imprisonment of Thinh Lam).
Baraka took Thinh Lam to the garage and in the garage was the Honda Civic. Once the garage door was open, Lam grabbed a knife from within his garage. He attempted to slash one of the tyres of the car. Pink got out of the vehicle and threw a chair and other items at him.
The trial ran on the basis that items were taken from the victims' address and loaded into the car, but no charge was laid with respect to that alleged aspect of the alleged offending and I do not take it into account in any way.
Thinh Lam tried to open the driver's side door where Baraka was seated. Baraka swung a knife at Thinh Lam, striking him to the forehead, resulting in a large laceration which caused him to bleed. (Baraka Charge 3 - Intentionally Causing Injury to Lam).
As Baraka reversed the vehicle out of the garage, Pink was seated in the rear passenger seat. Lam slashed a rear tyre of the vehicle. Baraka and Pink drove away in the car. (Baraka Charge 4 - Pink Charge 2 - Theft of Motor Vehicle - Baraka & Pink).
At about 4.41 AM, Nguyen contacted Triple Zero to report the matter.

[63]

I will return in a moment to greater detail of the assessment of the gravity of this offending, as well as the roles played by each offender and their culpability in it, in due course, but for now, I will deal with the aftermath of this offending and the impact the offending has had, which has been profound on its victims.
Thinh Lam[6] has found it hard to sleep since this offence. The night replays over in his head. He has nightmares and anxiety. He and his wife struggle to settle their daughter as they do not themselves feel secure in their own home. They moved home which was obviously costly. He installed expensive security equipment in the new home just to feel safe. He feels scared, helpless and guilty. He wonders what would have happened had he not woken when he did. He of course suffered a head injury requiring 11 stitches. He was unable to work for a while. The pain added to his restlessness at night. The family car was written off. This was essential for their everyday life. It put a further financial burden on them.
His sense of safety and routine in life have been shattered. He struggles with confidence and focus. He is withdrawn and has a constant sense of unease. It is a sense of cautiousness and anxiety his wife shares as they try to support each other, and maintain a brave face for their daughter. Healing will take a long time, but the offence has had a lasting impact on him even still - two years after it occurred.
His wife Tuong Nguyen[7] has fared no better. That night has had a negative impact on her. The offending happened in her home, where her infant child was. She is right to say that no parent should have to go through this. In the weeks and months following the offence she was constantly anxious and on edge.
She found it impossible to keep her normal routine, whereby she was fearful of leaving the home until later in the morning. The emotional toll has been immense. Her daughter struggles and suffers from disrupted sleep. She feels guilty that she could not provide a safe home for her child.
She still feels insecure, despite having moved (a process which I stress was both arduous and expensive). She worries every day that this type of thing will happen again. The family car had to be replaced at a time that they could ill afford it. Her and her husband had to take time off work when they could least afford it. They still strain with the financial and emotional burden of this offending.
She talks with regret about the loss of her stable and connected life. All of that has been shattered. She feels like her life has been upended and displaced. She is withdrawn. She fears for her daughter and the effect this has had on her. Life is now concerned with finding stability and security, despite underlying fear and dread that is part of her daily experience.
These lives have been turned upside down and a family changed for the worse was of course the inevitable outcome of engaging in this brazen and cowardly offending. The offending has touched every aspect of your victim's lives. The impact is profound and enduring. This impact is a matter that the law requires me to take into account when assessing the gravity of the instant offending and I have done so.

[68]

In terms of his mental health, I will say the following. Ms Gina Cidoni provided a report on his behalf.[10]
Baraka first came to the attention of the mental health system as early as 2012 when he presented to Orygen Youth Health with symptoms of psychosis in the context of homelessness. Over the following decade, he had intermediate contact with services including Northern AMHS, Mid-West AMHS, and the Victorian Institute of Forensic Mental Health.
His only recorded psychiatric admission occurred in September 2015, when he was involuntarily hospitalised at Sunshine Hospital under the Mental Health Act. Clinical records from this period include diagnoses of paranoid schizophrenia, a depressive episode, cannabis-related mental and behavioural disturbance (he had been using cannabis reasonably consistently since the age of 17, it seems), as well as PTSD and acute stress reaction. His most recent mental health contact was through Forensicare at Ravenhall between September and November of 2023.[11]
Baraka is afflicted with a cognitive disorder. In some respects, he functions in the extremely low range of intelligence.
His verbal comprehension places him in the lowest 1% of the population. His working memory is poor and his score places him in the lowest 6% of the population. He endures a high level of distress as a consequence of his diagnosis of PTSD.[12]
Baraka continued to exhibit significant symptoms during the assessment with CIDONI even in May of this year and they included hallucinations and paranoia from his Schizophrenic illness. He further presented with trauma-related distress and depression. These symptoms are significant given that he was interviewed after spending a long time in custody and free of any drugs or alcohol. He was still possessed of significant auditory hallucinations and other symptoms.[13]
He does meet the diagnostic criteria for PTSD as outlined in the DSM-5, based on a history of direct exposure to life-threatening events during his childhood, including the deaths of family members during the Darfur conflict, viewing mutilated bodies, and experiencing abuse at the age of about eight.
He reported persistent re-experiencing of symptoms, such as intrusive memories and hypervigilance, as well as avoidant behaviours, emotional numbing, and a restricted range of affect. He has also described feelings of detachment, disrupted sleep, irritability, and the mistrust of others. These symptoms have been chronic and functionally impairing, and they will align with the prior diagnosis of PTSD recorded back in 2016. There is no evidence to suggest resolution of these trauma-related symptoms, and his ongoing emotional dysregulation, heightened physiological arousal, and avoidance of perceived threat remain consistent with a current diagnosis of PTSD.[14]
The diagnosis of schizophrenia is supported by longstanding positive and negative symptoms, as well as cognitive disruption. Baraka has experienced persistent auditory hallucinations, persecutory delusions, conceptual disorganisation, and thought withdrawal across multiple settings. These symptoms were first formally identified during his involuntary psychiatric admission at Sunshine in 2015, where the diagnosis was first made. The evaluation confirms the presence of ongoing psychotic symptoms albeit mild, including hallucinations, impaired abstract reasoning, stereotyped thinking, and poor insight. These have occurred in the absence of acute intoxication or withdrawal and cannot be fully explained by trauma-related dissociation or substance abuse. While his symptom severity falls within the mildly ill range, the duration, consistency, and functional impact of his psychotic symptoms meet the diagnostic threshold for schizophrenia and that diagnosis is consistent with, and confirms, the prior classification made in the public health system.[15]
In considering the differential diagnosis, Baraka's presentation necessitates consideration of whether his psychotic symptoms are better accounted for by PTSD, with secondary psychotic features, or by a primary psychotic disorder such as schizophrenia.
While he has a well-documented history of trauma and ongoing symptoms consistent with PTSD, including hypervigilance, emotional numbing, and mistrust, the presence of persistent auditory hallucinations, conceptual disorganisation, and more negative symptoms such as the blunted affect I mentioned earlier are more consistent with a diagnosis of schizophrenia and those features have been observed in multiple settings across a sustained period of time. His PANSS results further support the distinction, indicating a psychotic process that exceeds what would typically be seen in trauma-related dissociation or arousal. Although PTSD likely contributes to his emotional instability and affects his capacity to engage with others, it does not fully account for the intensity or chronicity of his perceptual and cognitive disturbances and on that basis, paranoid schizophrenia remains the primary diagnosis, with PTSD understood as a comorbid condition influencing, but not driving, his psychotic symptomatology.
At the time of the offending, Baraka reported no memory of the events. He stated he consumed alcohol and possibly cannabis earlier that day and had taken Xanax, which were no doubt operating on his mental state at the time of the offending.
Cidoni says that Baraka also described hearing auditory hallucinations in the form of voices instructing him to 'do this and that', alongside significant sleep disturbance. His long-standing diagnosis of schizophrenia, which includes that history of persecutory ideation and command hallucinations, indicates that his mental state was likely compromised by the combined effects of untreated psychosis, substance use, and acute psychological distress. The interaction between benzodiazepines, alcohol, and cannabis likely exacerbated his cognitive and perceptual impairments, contributing to a marked decline in behavioural control, increased disorganisation, and diminished ability to discern reality.
The episode occurred in the absence of psychiatric oversight and against a background of unresolved trauma. Although Baraka had previously demonstrated the capacity to maintain employment and housing under structured conditions, those supports were not protective in the face of escalating psychological symptoms and drug use. The substances consumed (alcohol, cannabis, and Xanax) likely intensified his disorientation and disinhibition, further disrupting memory encoding and reducing his capacity for rational decision-making.
He is not presently prescribed any medication but had been previously prescribed anti-depressant medication in custody. He was engaged with the mental health nurse at Ravenhall.
I will return to these features of his psychological profile later.

[71]

I turn now to Pink. Pink is the middle child in a sibship of seven, to parents Hayley and Warren.
He described his childhood as 'loving and happy'. His immediate family unit was a close and supportive environment. He continues to enjoy the support of his parents and siblings, who were present for the re-trial and the verdict and the plea.[17]
The above is not to say though that his childhood was without difficulty, trauma, grief and loss.
Pink was born premature, at 24 weeks. He spent his early years in Wodonga.
When he was two, Warren was imprisoned for a year. Hayley moved Pink and his siblings to Melbourne to be closer to her family for support.
Whilst in Melbourne, his family moved between several properties through the Department of Housing, before moving in with Pink's maternal grandmother. Due to the treatment of him and his siblings by his step-grandfather the family then moved in with his paternal grandfather. The family remained there until his grandfather passed away. The distress that caused meant that Pink and his family had to find another house.[18]
Pink states he was abused on two separate occasions in his childhood. The first, when he was 10, which was an instance of abuse by a member of his extended family. Then again at 16, by a friend's sibling whilst staying at their house.
He has significant difficulty discussing that abuse. He first disclosed the abuse to Cidoni in 2024, and the abuse when he was 16 years later to Pitt in 2025.[19]
His mother had a stillbirth when Pink was eight; a younger brother Noah. He vividly remembers attending the funeral and emotionally struggling with this loss.
He experienced the grief of losing other family members throughout his childhood which had a deleterious impact on his trajectory and that included the death of his grandfather in the family home, and two months later the death of an aunty.
Up until the age of 16 Pink enjoyed playing AFL. It is something he has a continued a passion for and hopes to return to in the future, but he left that sport around 15 or 16, which, in hindsight, he recognises as causing him to start associating more regularly with anti-social peers.

[93]

Pink says that Baraka was the principal offender.[41]
I do not accept Pink's assertion that I can find it was Baraka who had knowledge or forethought of the victim's address, just because his phone was used to book (and subsequently cancel) the DiDi trip. The reason for this is the phone was used by both accused earlier in the evening. I cannot make any finding about who knew or selected the address beforehand.
The finding I can comfortably make though is once they both arrived at a location proximate to the victim's address, both were armed, both had means to disguise themselves and both entered the home of the victim armed, disguised and intent on confronting the occupants in order to steal. When Pink entered the bedroom, he was holding a knife. At this time, Baraka made the first demand for 'weed'. Pink then asked whether Lam was a 'weed dealer', suggesting strongly that this was a shared belief of both offenders as to what items of value they may obtain by their venture.
I am not convinced that Baraka's entry into the bedroom first and his production of the knife before Pink enters is of much moment.
Pink was not in the room for long, but played no part in the false imprisonment too. To that extent the differences in their conduct are reflected in different charges.
It is not clear who was given the keys and it is clear Baraka played a lead role in the theft of the Civic. Pink was actively though trying to make good their escape (without the use of a knife), but without the same level of violence Baraka used, which is again represented by a separate and discrete charge.
While Pink was initially in the driver's seat of the car, LAM was not sure if Pink even shut the door. Pink's presence in the driver's seat was before the car was stolen.
In summary, Pink's role is that he entered the house in company with Baraka, armed, participating in the confronting of victims at knifepoint together with Baraka, ransacking the house, or at least checking it for items of value[42] while Baraka held the victims at knife point, resulting in one charge against Baraka, and he was a party to the theft of the car.
In all ways Pink was an active and full participant in the home invasion. There is no significant difference between his role and Baraka's in that offence (even if they have different tasks). Any inference that Baraka had knowledge and plans in relation to the victim address equally applies to Pink - who travelled with him as his companion throughout the evening and participated in a coordinated way I have mentioned above, in the home invasion.
Pink was found guilty of the theft of motor vehicle as a complicitor, rather than principal, but the basis of his complicity was that he assisted in the theft by throwing items at the victim and then sat in the passenger car while Baraka drove away.
Dealing then with the criminality of the home invasion common to both offenders alone, there is little to distinguish them, but one significant way to differentiate them is through their pleas. The other is to view Baraka's additional criminality of 'elevated role' as being properly reflected in the greater number of discrete charges he faced, pleaded guilty to and will be sentenced for.

[115]

That section is qualified by the requirement that the impaired mental functioning is not one substantially caused by self-induced intoxication.
Mr Davis submitted it was reasonable to conclude on the balance of probabilities, Baraka's mental health was compromised at the time of offending and his psychiatric illness was the cause of his compromised mental state at the time (as opposed to being the cause of the offending).[62]
The officers who arrested Baraka made no specific mention of him appearing intoxicated, when arrested, after a chase at 4.50 AM[63] and the record of interview commencing at close to 7AM likewise makes no mention in the transcript of intoxication.[64]
But it is in Baraka's own accounts and the comments of Cidoni that Baraka admits to using alcohol and drugs earlier in the day and Xanax the day before. He reports auditory hallucinations at the time around the offending. It was put by Mr Davis that the issue of self-induced intoxication cannot meet the threshold required to disqualify him from accessing the provisions of that section.
He relied on the fact that, notwithstanding the described potential effects of self- induced intoxication, his schizophrenia, untreated psychosis and acute psychological distress are arguably the primary cause of his poor behaviour, as they exacerbated but did not cause the same.
The causal connection between this required is one that is put as a combination of his childhood trauma, loss of work, lack of psychiatric care, poor decision making and an inability to refrain from some behaviours and to some extent the application of Bugmy does, in my view, represent the kind of causal connection required by the section.
Mr Davis, in the end, did not persist with the submission that the exception was enlivened on 24 October, but obviously that does not mean all that I have just recited is irrelevant.
Even if I did find special reasons, it does not mandate that I impose a combination sentence if such a penalty was not appropriate, or a just sentence, in all the circumstances that met all sentencing criteria. I am far from convinced that a combination sentence would be open here. One only needs to look at the recent Crown appeal of Raux to have that conclusion validated.
Mr Davis did agree with the proposition that I could impose a head sentence and a very meaningful non parole period, which is what I have done.[65]

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