DPP v Moa [2026] VCC 189

10-year maximum prison term. You were on bail at the time of this offending. The Bail Act matter has a maximum of three months' imprisonment. 4. You are now 31 years old and have admitted a very brief prior criminal history and I was advised of a court hearing in January of this year for some other offences, some of those committed before, some committed after the matters I am dealing with. It was for some of those matters that you were on bail as at the date of the offences I am dealing with. 5. The matter was opened to me on Monday of last week by the prosecutor, Ms Bennett. She opened in accordance with a written summary dated 19 January 2026. That summary was marked as Exhibit A on the plea. Your counsel informed the Court it was an agreed summary. There was also the CCTV footage showing the manner of entry and the duration that you were within the room out of the range of the camera. It showed the movements of you and your offsider before and after entry, and of the victim and his state at the end of this attack. It is plain enough and was conceded by your counsel that but for the victim happening to open his door, you were likely to have sought out the occupant of the next-door room in error as that was where you had stationed yourself. I also have photographs of the injuries and the scene. I have regard to them as well. No-one suggested that sort of material needed to be exhibited on the plea. It is part of the depositions. There was an issue as to your interview with just a few lines excerpted from it in the summary. I could not follow from those brief excerpts whether there were any admissions of note made within but your counsel was asking me to find that there were some admissions made. I had asked for the interview to be provided as it was not within the depositions in transcript form. A form of transcript produced by some AI program was provided on the day of the plea but only as an aid memoir. That was marked alongside the interview itself which I viewed. Upon viewing the interview, in fact, the transcript proved to be quite accurate. 6. There is then no need for me to set out all the agreed facts in these my reasons as I will sentence pursuant to that agreed statement and the footage and photographs. 7. I will give only a brief summary so that my reasons and ultimate sentence might be more readily understood by anyone who happens to access these reasons when they come to be published, as they will. Otherwise, my sentence would exist in something of a vacuum. 8. Your victim was a 33-year-old man living in an apartment or room at the Comfort Inn in Dandenong. The summary, which is agreed, says you were not known to each other. In the very early hours of 31 May 2024, you were out in the rear yard of the old Dandenong fire station adjacent to the Comfort Inn. You were homeless at the time. It was 3.40 am or thereabouts and the victim could see you from the balcony of his room. There was some interaction and you began to argue from a distance. He told you to stop looking at him and to leave him alone. You should have done just that. Instead, you jumped the dividing wall and went up the stairs, by which stage you were carrying a broken bottle. As I said a moment ago, from the CCTV we can see you were standing outside the wrong door and were about to select the entirely wrong room but unluckily for your victim, but perhaps luckily for his neighbour, Mr Hogg chose that moment to come outside. There was then a further argument. At one point, your victim was holding a wooden slat in a defensive manner. After all you had approached the room and were holding a broken bottle by the neck. 9. He went inside and shut the door. 10. Had you left we would not be having this hearing. Instead, you were joined by another man, one with a larger frame, and both you and he kicked the door and ran into the room. So forced entry at 3.40 am or so. It is clear that you tried to put up your hood to try to avoid identification within the room just prior to entry. It slipped back down before you entered. We can see that on the footage and the fact it was up when you exited the room. Perhaps you had failed to notice the CCTV camera outside. Plainly enough from the footage your offsider whoever he was, was armed. Your counsel seemingly took issue with that fact. She should not have. As she had taken issue with the co-offender being armed and asserted that there was some mitigation to be had from the interview, I put her on notice by email that I had watched the police interview and the footage and gave her an opportunity to make further submissions or to correct any that had been made. This morning she did just that. So too the prosecutor. She submitted you had made an admission, citing one answer given, amongst all the others, where you mentioned some damage to a door. She still persisted with the strange argument as to the absence of a weapon in the possession of the second offender. We, well, I best say I, can clearly see him removing some item in the footage. It looks to be some form of largish knife from a sheath or a sharpening scabbard/cartridge and with the knife being unsheathed just as he enters, but that does not matter. Firstly, whether he was armed or not is not critical to the existence of the home invasion. You were armed and in company. Secondly, I cannot be satisfied beyond reasonable doubt that you knew he was armed so it does not really matter. You knew you were armed and you knew he was coming in with you. That is what is important. 11. There was a joint assault upon Mr Hogg inside his unit. He was hit to the front and back of the head. Your victim was left with large lacerations. The photographs are not pretty. The summary described the property taken but I am not passing sentence for any theft or robbery so put that matter aside as I must. 12. Police were summoned and took the photographs that are within the depositions. 13. Your victim went to hospital by ambulance and received some triage and a number of scans, but despite advice as to the need for stitches, he decided to leave without further treatment. 14. The summary sets out the timings on the CCTV. I have regard to the entirety of the footage. You were inside that room for about one and a half minutes. 15. You were arrested on 12 June. I was informed by your counsel that your fingerprints had been found at the scene. 16. As I have said, the coverage of the interview in the agreed summary was of no value to me. It was not clear to me whether you had been cooperative and had made admissions or not. So I viewed the interview and had the AI generated transcript as an aid. The fact is you made no admissions to being in that room or in any way being involved in any assault on your victim. It must be said I do not think you were in a good state at the time of the interview. It was a bit of a confused account as you were plainly at one point describing another event or other events involving damage to your partners window and/or door and the use of a cricket bat. I am not dealing with you for that. Perhaps you were describing one of the other matters dealt with in January but nothing hangs on that. 17. The fact is you denied ever having been in the room. You denied having had any argument on the night or entering the room or assaulting him in any fashion. You were shown still photographs but claimed not to recognise that it was you depicted within them. You said all Polynesians, Maori's and even Africans looked alike. You said for a fact it was not you. You said, 'I know for a fact I wasn't there'. You told police you rarely drank alcohol saying that perhaps you drank once a month and that it was years since you had drunk whisky or bourbon cans. I interpose you were asked questions about that by the police owing to an alleged theft of 10 such cans earlier on that same night as the home invasion. I note also that your instructions to counsel and to the expert, Ms Lofthouse, were that you were drinking prodigious amounts of such cans in the relevant time frame, 48 a day. 18. Your conduct in the interview is not a matter in any way in aggravation. It is just there is very little mitigation to be taken from it as you were not admitting either crime at all. At least you behaved yourself in your dealings with the police. 19. You have been in custody since arrest, a period of 249 days up to the plea date. That number has risen since of course. 20. The summary has a procedural chronology on p9. 21. So much then for my brief summary of the agreed summary in this case. I will sentence pursuant to the more detailed agreed summary, as well as the police interview, the footage and photographs that I have referred to.

1. I turn to the impact of your crimes. There is no impact statement in this case and I am really not free to speculate. Plainly there was an immediate impact. We can see Mr Hogg emerge from his unit bleeding and disorientated. It was obviously a frightening entry with significant enough physical violence inflicted upon him in his own home. He was outnumbered and attacked. He was taken to hospital by ambulance and had injuries. He chose not to stay to get the treatment he obviously required.
2. Home invasion is an inherently serious offence. It is notorious that this style of entry leads to a sense of insecurity in the minds of those whose homes or properties are entered. However, as Mr Hogg has chosen not to make an impact statement, I cannot reach any finding that there have been any serious ongoing physical or emotional impacts from either crime. He will surely never forget what happened on this night.
3. I take the impact into account.

1. Ms Kurbalija conducted the plea in mitigation on your behalf and relied upon a very detailed and impressive written outline dated 9 February 2026. A useful chronology was attached, which also addressed aspects of drug and alcohol use in the relevant timeframe. She filed a lengthy report from a neuropsychologist, Ms Lofthouse, an affidavit from a lawyer with experience in immigration law as well as a letter from your mother and some course completion and/or attendance certificates.
2. The court was informed of your background and history and by that I mean things such as your personal, educational, employment, drug use, relationship and physical and mental health history. Also your prior criminal history such as it is and the subsequent matters and your immigration status were addressed.
3. Your counsel made some submissions to the court as to the level of objective seriousness of the offending. Make no mistake, she was not suggesting the home invasion was anything other than a serious offence. It was, as she conceded, an inherently serious offence.
4. She made some submissions as to the relevant sentencing purposes and your favourable prospects of rehabilitation and the need for me to pay regard to totality of sentence.
5. It was a thorough and excellent plea in which she raised all that could be raised on your behalf. She relied mainly upon the following matters in mitigation:
   • Your early guilty plea;
   • The presence of some remorse;
   • Your disadvantaged early life (Bugmy[1] general fashion);
   • The application of the 1st, 3rd, 4th, 5th and 6th limbs from the case of Verdins;[2]
   • The risk of deportation in the two ways contemplated by the case law.
6. She correctly retreated from the submission that there ought be total concurrency in this case. She also recognised that the evidence in support of limb 6 of Verdins was not strong and may not reach the required threshold.
7. She referred me to a single case of Wright v The King [2023] VSCA 243 as being comparable. It is not. I have read it and it is of very little use in my task. There were many differences in matters of aggravation and mitigation and a most unusual setting where the sentence had to be recast by the original Sentencing Judge and with some constraints posed by that fact, as well as the strong restraint posed by parity of sentence in that case. There were some strong statements from the Court of Appeal as to the leniency of that sentence and the reason why it was.
8. Your counsel conceded that prison was required for the home invasion matter. She was not suggesting any exception arose which would permit a combination type sentence to be imposed directly on the home invasion offence. She was suggesting however that it might be open to impose a straight sentence on that matter and a community corrections order on the remaining matter. That I could impose a prison term with up to an additional year and that would permit a 'form' of combination type sentence albeit not one breaching the Category 2 requirements. That would be because there was no actual combination sentence imposed on the home invasion itself. Rather the practical effect would be a combination disposition arrived at between the two sentences imposed. She recognised some of the problematic aspects of that submission when regard was had to the submission she had also made to me as to the certainty that your visa would be cancelled should you receive a sentence of 12 months or more. In the alternative she argued for a head sentence with a non-parole period.

1. The prosecutor Ms Bennett made some brief oral submissions but had also prepared some detailed written sentencing submissions dated

12 February which were marked as Exhibit C. 2. It seems to me that there was little in dispute here. The prosecution oral and written submissions were quite uncontroversial, going as they did to established matters of sentencing principle and working their way through matters in aggravation and mitigation. They did not for instance take issue with the submissions made as to the possibility of Bugmy being enlivened, or the risk of and impact of deportation, or the possible application of two of the Verdins limbs (5 and 6). They did not concede the Verdins points across the board though and had observed the discussion on the plea with your counsel where she conceded the difficulties in relation to the 6th limb argument. 3. I see no need to set out all the Crown submissions, either oral or written. They did explicitly challenge the application of limbs 1, 3, 4 and probably 6 of Verdins. 4. The Crown argued that prison was warranted here. Well so much had been readily conceded by your own counsel. They challenged the suggestion that it would be open to impose a straight sentence on the home invasion and a community corrections order on the intentionally causing injury. They challenged the submission that there should be total concurrency. The Crown did not accept there was any basis for the total concurrency urged upon the court by your counsel in her written submissions, but by the time Ms Bennett addressed me, your counsel had sensibly withdrawn that submission. 5. The prosecution argued that a head sentence and non-parole period was required here. 6. Of course, I am not bound by any of the submissions made by either of the parties. I have to reach my own view as to the appropriate sentence to be imposed here. I have to exercise my own sentencing discretion. 7. I will come back a bit later to consider the various submissions made by the parties but am content to tell you now that I do not believe that it is open to me in the sound exercise of my discretion to impose a community corrections order in this matter in any shape or form.

1. I am going to turn firstly to your background but will do so quite briefly. That is because I have no reason not to accept the personal background which has been placed before me. Your counsel relied upon the account in the report of Ms Lofthouse. There is also some reference to it in the written submissions. There is no point in my just repeating the detail which I have no reason not to act on. I have seen many worse, if not far worse backgrounds than yours over the years.
2. I will give but a bare summary of your background.
3. You were born in New Zealand in December 1994. You are now

31 years of age. You are of Maori descent. You were the younger of two children who came to Australia with your parents when you were two. You did have some early developmental issues. Your parents separated when you were 12 and your father returned to NZ. There is a description of some physical abuse in the family home of which you and your mother were victims. Your father was a drug user and I understand that both parents had involvement with the criminal justice system, in NZ at least. 4. I was told you have no contact with your father but a close relationship with your mother and brother. 5. I should say there was a very strong level of support for you at Court with many close relatives physically attending and some joining by link. Your father watched on by link, I presume from NZ. Again, there is support here today on the day of sentence, both physically and online. 6. You started using drugs very early on. You struggled at school but were kept in mainstream schools. You were viewed as slow and had some added support. You missed a good deal of secondary schooling with your last attendance being in Year 10 at Cranbourne Secondary College. By then you were well and truly abusing drugs and alcohol and fighting a good deal. You were asked to leave. 7. The report sets out your employment history and I shall not repeat it all. Early on there was some newspaper delivery, years of not doing much at all and later on some abattoir work for some years and more recently at a sleeper manufacturing company. You were out of work for about a year in the lead in to the offences and homeless for several months at least. There is mention made of a crush injury sustained by you in 2023, but I checked specifically and your counsel was explicit in saying it was not being relied upon as adding to your custodial burden. 8. There is reference in some old Justice Health notes to a carpentry pre‑apprenticeship back in 2011. 9. You have had two main relationships. You have no children. 10. You have had serious issues over a long period with a variety of drugs. You were drinking massive amounts of alcohol daily, you say 48 cans of premixed bourbon, as well as using cannabis, ice and cocaine on a daily basis. 11. You have been doing useful things in custody as spelt out in paragraph 33 of the written submissions and have done courses and programs and these things are relied upon in your favour. The family support clearly in evidence on the plea, and again today, was relied upon as playing into the judgments I ought make as to your future prospects. 12. You have a short prior criminal history constituted by that single appearance in November 2014 and a related follow up appearance. Though I was given no detail, it must have been serious enough offending as it was a robbery and recklessly causing injury, but you received a CCO which was varied the following year. You served out that order. Other than that, there is the subsequent offending which I have been told about, which was dealt with by way of fines a few weeks ago at Melbourne Magistrates Court. When I say subsequent, some of those offences predated 31 May, some postdated 31 May. 13. It is a very brief prior criminal history and it is of very little relevance to my task. Nor are the subsequently dealt with matters in any way disturbing to me. 14. It seems to me that at your age, it is more significant that there is no criminal history of any note. You have not made a habit of breaking the law, and nor is there any track record of disobedience to Court orders. However challenging your background may have been, however entrenched your drug use has been, you have not been a repeat offender before the courts. 15. Having mentioned your prior history, you do not fall to be sentenced a second time for that past or subsequent offending. There is nothing in that prior or subsequent criminal history that suggests to me that you cannot be rehabilitated. You have family support and I was told will have a roof over your head when you are released and likely the availability of factory work upon your ultimate release.

1. I have dealt only quite briefly with your background and have not covered every detail that was placed before me or that is referred to in the expert report or the written submissions. Your counsel, whilst recognising it was hardly the worst background of someone coming before the court, still relied upon the application of the Bugmy principles. That is a reference to a High Court decision, and there are many other decisions following that case. You Counsel reminded me that the disadvantage did not need to be profound. She is correct in that submission.
2. An offender's circumstances and their experience during their childhood, and in their formative years must be considered in sentencing, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, the offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse or neglect, into account when sentencing is the mark of a humane society.
3. These Bugmy principles have been re-stated in a large number of cases since, including the case of Herrmann[3] . Your counsel made it clear she was relying upon those principles in the general fashion described in the case law.
4. The application of these principles does not depend upon proof of any causal connection between the background and the offending. A causal connection is very difficult to establish, and it was not being relied upon here.
5. Nor does the disadvantage have to rise to a particular level.
6. I am prepared to find that your background was disadvantaged to a degree. As was conceded on the plea, however, it was just nowhere near as disadvantaged as so many backgrounds that we as Judges do see. You had a home, a roof over your head, a mother who loved you and supported you. You had a father who was present. There was, however, some exposure to violence directed at you in your early life and family violence witnessed by you in the home when your mother was the victim. There was some exposure to drug use.
7. It was in that sense an unenviable background. I give it full weight in the way in which that phrase is employed in the case law, including those cases I have referred to, Bugmy and Herrmann but also Sabatucci[4], Newton[5] and Dhal.[6]
8. That case law makes it clear that social disadvantage will not attract the same weight in every case or in the same fashion and that the weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though as I have said, no causal link is required, and also the nature of the crime or crimes under consideration. It requires a consideration of the relative importance in the particular case of sentencing considerations such as deterrence, community protection and rehabilitation. (See the case of Terrick[7]).
9. I take your background into account as far as I am able to. It does not lead to any large reduction in your culpability. Nor was your counsel really suggesting it should. In fact, it is a very modest reduction.

1. I turn to some of the other matters raised on the plea. You have pleaded guilty at the earliest opportunity. You have in this way taken responsibility for your crimes. There is a strong utilitarian benefit.
2. As a result of your guilty plea, all of the time, cost and effort of a committal hearing in the Magistrates' Court or a trial up in this court has been avoided. All of the witnesses who might have been called have been spared the experience of giving evidence. Giving evidence can be a stressful experience. Your victim has not needed to do that. I have a sense Mr Hogg would not have enjoyed the experience. He did not want to even stick around for suturing.
3. You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
4. I take these various matters into account in mitigation.

1. Let me deal briefly with remorse. You have pleaded guilty at the earliest opportunity. A guilty plea is usually indicative of some remorse. I also have a sense from your dealings with the expert and your mother that you are to a degree remorseful for what you have done.
2. I'm satisfied you do have some actual remorse and I take that into account in your favour.

1. I turn to the Verdins submissions. That decision of Verdins in the Court of Appeal deals with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both, and how that sort of thing might be taken into account by a court. That is, as I said on the plea, a gross simplification of the case law in this field, but it is sufficient for present purposes.
2. Your counsel argued that the first, third, fourth, fifth and sixth limbs from the case of Verdins had some application here. The Crown challenged the application of limbs one, three and four. The sixth limb by the time of prosecution oral argument had been significantly retreated from by your own counsel.
3. The Verdins submissions were founded on the very lengthy report of

Ms Lofthouse, a neuropsychologist. She saw you over some hours in December. She listed on p2 the materials from which information was sourced for the report. There is no mention of the police interview at all. I was informed it had been provided. I am prepared to accept it was provided but in what form? Presumably the audio visual file. I note there was no transcript of it and not the slightest suggestion in her report of viewing the interview in either transcript or audio-visual form. It is inconceivable that she would not have mentioned it, if she had viewed it. I note that she took an account from you and that is referred to at p3 in the bottom paragraph. You told her you could not fully remember the events of the 31 May past the point of kicking the door open. I note that she did not take up with you any aspect of your police interview account where you denied any entry or assault or where you said you drank only rarely. I note also she seems not to have asked you what was motivating you to that point of kicking in the door. Why you did what you did. It is plain enough she has not had any regard to your interview in reaching those views. 4. Your counsel seeks to draw a connection between the conditions and deficits spoken of by Ms Lofthouse and the offending. She submits there is a causal link, or at least a realistic connection. 5. That an expert would not actually ask the accused what led to the crime is really something of a mystery, to me at least. 6. Ms Lofthouse conducted a number of tests and provided her opinion. I am not going to cite slabs from the lengthy report in these my reasons which will be long enough as is. I have read the report again since the plea. You do not have an intellectual disability. You function at a low level, there is no doubt about that and I do not ignore that fact. There are some impairments and deficits in your level of functioning and weaknesses in a number of areas or domains of which she speaks. The screening tests administered in December spoke of your then level of depression, anxiety and stress. You have been prescribed medication to assist with anxiety and depression. 7. I am meant to engage in a rigorous examination in relation to Verdins. You bear the burden of satisfying me that the particular limb is enlivened. I must be satisfied of that on balance of probabilities. There must at least be a realistic connection to achieve any reduction of moral culpability on a Verdins basis. I am prepared to accept that there are aspects of your make up which impact upon your level of control and composure. Those impairments might have an impact. There is some portion of your make up prone to aggressive response and at risk of impulsivity. 8. How impulsive this offending was is to some extent debatable. You scaled a fence and went up the stairs by which time you had a broken bottle held by the neck and an offsider with you. 9. You were a person who had not slept for two or three nights. Despite telling the police you had not drunk premixed cans for some years, you had, massive quantities of them. You were drinking 48 cans a day and had used cannabis, ice and cocaine. That was conceded on the plea. What role did any of the particular psychological aspects spoken of by

Ms Lofthouse actually play in this offending? What role this combination of mental health challenges and impaired functioning? It is quite impossible for me to know. Your counsel was not suggesting it was a simple issue but was relying on the report of Ms Lofthouse as to the 'accentuation' of these deficits arising from drug and alcohol use. It was submitted that your so-called mental impairments and psychological state operated alongside and independent of your drug and alcohol use in causing the offending, that there was a realistic connection. Your counsel was not suggesting much allowance could be made if any. She argued in relation to limbs 1, 3 and 4 that there could be only minimal allowance made. The Crown argued against there being any causal or realistic connection and against any weight being given to these limbs. 10. It is impossible to know what actual role your fixed impairments and deficits had in contributing to the offending in a setting where you had such large quantities of drugs and alcohol on board, each of which have a disinhibiting effect and an obvious impact upon composure, decision making, impulsivity and judgement. It is just impossible to disentangle, and it is easily possible the offences might well have been entirely driven by disinhibition arising from drug and alcohol use. It would not hurt for the expert to actually explore with you why you offended, why you scaled the fence? Why you said you could remember the moments up to kicking in the door when you had told the police last year you had not even entered the premises or assaulted the victim, and that it was not you in the CCTV. During the plea I had some strong reservations about the existence of any realistic connection. However, I have reread all the materials including the lengthy report and the submissions both for and against this argument. I am prepared to find there is this realistic connection. 11. Your counsel was arguing for a minimal reduction on a Verdins basis. Minimal in relation to the first, third and fourth limbs. I will make that minimal allowance. There is a minimal reduction in your culpability on a Verdins basis. There is minimal reduction of the weight given to specific and general deterrence. 12. I am prepared to find there is a modest increase in the burden of imprisonment. That is spoken of it the report. I do not accept that the sixth limb is made out at all. All sorts of things are possible. That does not make them likely and she speaks of the possibility of deterioration of your psychological issues, with the added stress of incarceration, and particularly if you are unable to seek support. see bottom p20 and top p21. So really it is a conditional possibility and does not rise to the threshold of a serious risk of significant deterioration on the evidence placed before me. 13. So with the exception of the sixth limb argument, I find in favour of the Verdins submissions made by your counsel. I do take into account the report of Ms Lofthouse in other ways of course. I have had regard to it in making allowances for your disadvantaged background. She spoke also of her viewing you as remorseful and the strategies that lie ahead for your rehabilitation.

1. I turn to those prospects of rehabilitation. Your counsel spelt out a number of matters in paragraph 33. I will not mention them all but of course they are factored in by me. They more than hint at your desire and commitment to rehabilitate.
2. You have a very brief prior criminal history. There were a handful of other matters dealt with in January. So you have not troubled the courts much over the years. This offending was not intricately planned and no doubt was committed whilst disinhibited by alcohol and drugs. I am told you will have the offer of work upon your release. Also a place to live. I have found you exhibit actual remorse. You do have a long term issue with a variety of illegal substances and alcohol and you will need to conquer those addictions.
3. It is your first time in prison. I am sure you will be deterred to a decent degree by the time you have already spent in custody and by the sentence I will soon impose which will extend that period substantially. You, unlike many prisoners, have a good deal of family support and that is a positive. So too the fact that you have done courses and programs and have attended Narcotics Anonymous. You are making the right noises about ongoing steps and plans into the future.
4. I believe that you have relatively good prospects of rehabilitation. Those prospects would be better still if you can successfully abstain from illegal drug use and from serious abuse of alcohol.

1. I turn now to the issue of deportation.
2. You are not an Australian citizen. Owing to provisions within the Migration Act, if a sentence of 12 months imprisonment or more is imposed, your visa will be automatically cancelled. Well, it is clear to me that a sentence well exceeding 12 months is required here.
3. I do take into account the many cases dealing with the relevance of the risk of deportation, including the Guden[8] line of cases that has been considered in cases such as Allouch[9] and also Loftus[10] and Hague[11]. Also the case of Zhang[12], which was referenced in the submissions.
4. I will work on the assumption that you will have your visa cancelled automatically. That does not involve any speculation at all on my part. It will be cancelled. When I cannot say.
5. There is a lengthy affidavit from one who is familiar with immigration law. He really cannot spell out how this will all play out in the end. You will have the opportunity to ask for reconsideration of that decision, and dependent upon who made that decision, should it go against you, there might even then be the ability to take it further before a court or a tribunal.
6. The affidavit speaks of the factors that the person reviewing the decision will need to take into account. There are many factors. There is reference to Ministerial Directions and the principles informing the exercise of powers under the Act. There are five primary considerations. See para 20 Affidavit. I am not making that determination, and nor is the author of that affidavit. The fact is none of us know what will happen in the event that you apply for review, as I am told you are likely to do. Your long term links to this country from the age of two, as well as lack of link to any other country will plainly be a significant consideration, but not the only one.
7. I mentioned in the course of the plea the existence of publications from the Department of Home Affairs, as well as from the Sentencing Advisory Council, which disclosed the success rate of review applications. The SAC paper, 'Deportation and Sentencing' (from November 2019, disclosed that a decent enough proportion of those who have their visas cancelled automatically then had that decision overturned. The success rate at least in the years covered by that research fell between 34 to 41 per cent, see paragraph [24] of that paper. These figures do not include those who have their reconsideration refused, who then review the matter in a tribunal, and then succeed. Those success rates have declined more recently.
8. That others have had success in reviews says nothing as to the outcome of any reconsideration in your case.
9. The fact is no one can know how any of these matters will ultimately play out in your case. We know your visa will be cancelled. I am not really assisted by what someone thinks may happen in terms of any reconsideration of that cancellation. It will depend on the decision maker and his or her view or assessment of the factors that are required to be considered and the weight that he or she gives them in light of the directives. See para 20, 40 , 42 of affidavit. None of us has a crystal ball.
10. I do accept your counsel's submission as to the application of the two limbs from the Guden line of authority in your case. See paragraphs 18-22 of your counsel's written submissions.
11. I accept that the first limb applies; that is there exists the very real prospect of your losing the opportunity to remain as a resident in this country. That itself is a punishment. Additionally, that prospect is one that will weigh heavily on you and no doubt increase your prison burden.
12. On any view of it, whilst serving your prison term, there will be a state of real uncertainly in your mind as to what lies ahead. There is just no question in my mind that you will continue to feel anxiety about this risk of deportation. The affidavit suggests cancellation is often enough a decision taken a fair way into the sentence, and that itself can cause some delay even if there was to be a successful review. See paragraph 40. You will be waiting for the axe to fall in terms of cancellation and all along the way, so before and after that step is taken, you will have all the uncertainties as to your future. You would, after all, be confronting the very real prospect of losing the opportunity of settling permanently in this country, and you have been here since you were an infant with most of your family in this country as well.
13. I take these matters into account in mitigation in the way urged upon me by your counsel.

1. Let me turn to the actual offences. There is no point in my setting out all the details again now. I have the agreed summary and I have the footage and photographs. It was conceded that home invasion is an inherently serious crime and that this was a confrontational one in nature. You entered with the intent to assault. You knew the apartment was occupied and you were going in in company and armed to assault him. Some of these matters are elements of course so I do not doubly count them as matters of aggravation. However, some home invasions can be committed without any confrontational intent at all. There can be an intent to steal for instance in circumstances where the other elements of home invasion exist. They do not require the presence of an occupant. Entry with another person as a trespasser with intent to steal and whilst in possession of an offensive weapon would satisfy the elements.
2. The manner of assessing the seriousness of aggravated burglaries has been discussed in a number of cases including the case of Meyers.[13] A similar approach can validly be undertaken for a home invasion.
3. Meyers sets out some matters that might be considered by a Court. The case was not setting out some exhaustive checklist where if a factor is not present, the offence is therefore not serious or is less serious.
4. It simply contains a list of factors, the presence of which might go to the assessment of the seriousness of that offence (being aggravated burglary). These Meyers considerations as to how a court might best assess the seriousness of an aggravated burglary are not exhaustive considerations. They include things such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened. Well, I am dealing with a home invasion, so built into the offence is that it was in company and that an offensive weapon was carried. So those sorts of matters are not matters of objective seriousness for home invasion as they would be for aggravated burglary. Unlike an aggravated burglary, they are actually elements.
5. Yours was a confrontational home invasion. You entered intending to assault. It was in the very early hours of the morning. You and your offsider kicked in the door. So this involved forced entry into the home of your victim, in knowledge he was within.
6. It was a relatively unsophisticated offence. Home invasion and aggravated burglary are very often relatively unsophisticated offences and committed without much planning at all. You, in response to some verbal interaction, it is put no higher than that, have scaled the dividing wall and made your way up to the second floor and have armed yourself and had support from your offsider. It was relatively spontaneous. I do not accept that you took no steps to disguise or obscure your identity. That submission should not have been made, given what we see you do just before entry, that is try to pull up your hood and that it was in fact already pulled up when leaving. It should be said it was not much of a disguise and might have been deployed a bit earlier, given the existence of cameras outside the unit.
7. So yes I find it was relatively spontaneous and involved little by way of planning. As to the contention it was fleeting, I doubt if your victim would agree with that description. I certainly do not. That word is an adjective used to describe something happening for a very short time. For instance 'For a fleeting moment I saw the person's face as the train sped past'. This offence was not fleeting at all. We can see in the footage shadows dancing on the wall inside the open door. One and a half minutes at close quarters in a small area with intruders is not fleeting at all. The fact is very many home invasions and aggravated burglaries are of brief duration. There is some motivation driving illegal entry, entry occurs, additional offending, if any, is often swift enough and there is departure.
8. Your home invasion was no minor example of the offence by any means though of course it was a long way removed from the most serious instances.
9. Many home invasions would not lead on to other offending. This one did and I have to deal with the intentionally causing injury. That is, an attack with a weapon upon a man in his own home at 3.45 am. He was struck to the head and face with a weapon. It was a joint attack leaving him injured in the manner depicted in the photographs. Your counsel accepted it was mid-range offending, viewed objectively. I accept that the level of injury was not at the high end of the definition of 'injury'. Some injuries that fall short of the definition of 'serious injury' can be far more significant than these ones. So too the impact. The mechanism was however a bad one and the venue was this man's home.
10. It is conceded by your counsel that you have committed serious crimes and that home invasion is an inherently serious crime.
11. It is after all punishable by a maximum of 25 years' imprisonment.

1. I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. Those prospects are relatively good here, but they are not the only purpose I am to have regard to.
2. I have to punish you justly and proportionately.
3. I am required to also denounce your conduct.
4. I will not repeat all that I said about there being some reduction in the weight given to special and general deterrence when pronouncing my view as to the Verdins submissions earlier in these reasons. It was very much a minimal thing as was accepted by your counsel.
5. I still must give some weight to specific deterrence. That relates to the need to deter you. However, there can also be some moderation of that purpose, as well as to the weight given to community protection, owing to the quite favourable views I take as to your future prospects. Plainly each of these matters would be given far greater weight if you had a more relevant or lengthier criminal history, or had a long track record of disobedience to the law or to Court orders. That is not the case, so it stands to reason there can be moderation of those two purposes.
6. General deterrence is however in a different position. It relates to the need to deter future likeminded offenders, and it is of obvious importance here given the nature of this offending. That is so despite my Verdins findings. I have to send a clear message to future likeminded offenders in an endeavour to cause them to actually reflect and to reconsider their position and not offend in the way that you did. Many people offending in the way that you offended are affected by drugs and alcohol, or both. That is not mitigatory. The message must be sent to others that committing such a crime as you did, home invasion and then intentionally causing injury within that home, is serious offending which will be treated seriously by the Courts, with serious consequences.
7. I must pay regard to the maximum penalties, as well as the impact of the crimes.
8. I have to pay regard to current sentencing practices.
9. As to current sentencing practice, that is not a single controlling factor. I have looked at the online statistics for the two crimes on the indictment, as well as case collections set out in the Judicial College of Victoria Sentencing Manual. I have mentioned that decision of Wright to which I was referred, and that it is of little use to me given the unusual aspects of that sentencing task, including an error made by the Sentencing Judge and the strong restraint posed by parity. The Court of Appeal indicated at paragraph 88 how unusual it was for the crime of home invasion to receive a sentence of less than three years, with many sentences considerably higher than that. See paragraph 88. Mr Wright was 21 and his youthful immaturity was on display for all to see in the offending and taken into account.
10. Statistics have inherent limitations. They tell me nothing about the individual features of a crime represented in the data. For instance, they tell me nothing as to the intent upon entry for the home invasion. They tell me nothing as to the matters in mitigation or aggravation in that other case. They are mere numbers without any of the detail as to why that number was selected by another Judge in another case. Other cases are not precedents.
11. Sentencing is not some mathematical or statistical task.
12. No amount of looking at other cases or the statistics can ever provide the answer to my task.
13. That is because at the end of the day, each case must be determined on its own facts. I am sentencing you for your crimes, taking into account the matters in mitigation and aggravation in your case.
14. Prison is a disposition of last resort. Your counsel conceded prison was warranted. She was not suggesting any exception was made out. She was submitting that it might possibly be open to structure a combination-type sentence, one not breaching the category 2 framework. So arriving at a sentence which would likely involve a further period in prison on the home invasion, with your ultimate release in the future onto a suitably conditioned community correction order imposed on the intentionally causing injury. I have already provided the answer to that submission. It is simply not open in the sound exercise of my sentencing discretion in this case.
15. If such an order could achieve all the purposes of sentencing, I would be required to deal with you in that way. That merely reflects the fact that a court is never permitted to impose a more severe sentence than is actually required to achieve the various purposes of sentencing. It follows also that I am not able to impose a longer prison sentence than is required to achieve the purposes of sentencing.
16. Plainly a sentence well in excess of an additional year above your pre-sentence detention is required on the home invasion matter alone. This precludes any consideration of a community corrections order on the other matter.
17. I have mentioned already that even if I had acceded to the defence submission and on the home invasion imposed a sentence of less than 12 months in addition to your presentence detention, that sentence as a matter of fact would total a period greater than a year and it would lead to automatic cancellation of your visa. Your counsel recognised that would surely throw up issues in terms of your capacity to ever enter the community corrections order. However, I will assume that as a matter of law I am meant to disregard that issue in the same way one is to not pay regard to future executive action.
18. That practical issue is not the impediment to the mooted order by your counsel. It is simply that a sentence on the two indictment matters which would expose you to no more than an additional 12 months in custody, could not and would not achieve the various purposes of sentencing, including the need to punish you and to deter others. It would pay no regard to current sentencing practice either.
19. Given the dimensions of the sentence I will soon pronounce, I am required as a matter of law to fix a non-parole period and I will in that way provide for the possibility of your early release on parole. That is all it is, a possibility. I am not permitted to consider whether you will actually be released on parole or even if that is likely. Whether you are released on parole will be in the hands of the Adult Parole Board. It will, if you like, be between you and them.

1. I must take into account the principle of totality of sentence. I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. You were on bail at the time, so I have the removal of the presumption of concurrency and instead a presumption of cumulation. See s16(1A)(e) and s16(3C). However, I have treated it as a matter of aggravation that you were on bail at the time of the commission of the indictment matters. As a result, I do otherwise direct under those provisions and I will also pass a concurrent sentence on the Bail Act matter to avoid double punishment in this case.
2. Your counsel correctly retreated from the suggestion in the written submissions that there should be total concurrency in relation to the two indictment charge sentences. There plainly cannot be. Totality is still of importance. I have two indictment charges to deal with. Two separate charges with separate elements.
3. The most serious offence is the home invasion. The home invasion does not embrace the intentionally causing injury.
4. There is of course the temporal link, and by that, I mean Mr Hogg was the victim of Charges 1 and 2, which involved the home invasion leading into the intentionally causing injury within the home once it was entered. The very close temporal relationship is obvious to me even though there are differing crimes with differing elements. I must be astute to avoid double punishment.
5. Plainly there must be some cumulation to reflect that the intentionally causing injury is itself a separate and serious crime. There must also be some moderation of cumulation to pay appropriate regard to the principles of totality of which I have been speaking.
6. I have engaged in a last look at the sentences imposed by this court and the overall effect of the sentences and my order for cumulation. I have engaged in that process to ensure the overall effect is commensurate with your overall criminality, and in an endeavour to guard against the imposition of a crushing term upon you.

1. On Charge 1, the charge of home invasion, you are convicted and sentenced to 3 years and 3 months' imprisonment. That is the base sentence
2. On Charge 2 intentionally causing injury, I convict and sentence you to

20 months' imprisonment 3. On the related summary matter, I convict and sentence you to one days imprisonment.

1. I direct that 5 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence. The one-day term imposed on the Bail Act matter will be served wholly concurrently.

1. It follows then that the total effective sentence is 44 months or 3 years and 8 months' imprisonment.

1. I fix a period of 26 months during which you will not be eligible for release on parole.

1. You have already served 257 days of this sentence by way of pre‑sentence detention, and you get credit for that. That period is declared pursuant to s18 of the Sentencing Act and will be entered into the records of the court.

Section 6AAA.

1. I have taken into account your guilty plea and have reduced your sentence accordingly. If you had pleaded not guilty, and been found guilty of these offences following a trial with a jury finding, I would have convicted and sentenced you to five and a half years' imprisonment. I would have fixed a non‑parole period of four years.
2. Is there anything else? There were no ancillary orders I do not think.
3. MS BENNETT: No additional orders, Your Honour.
4. HIS HONOUR: Ms Kurbalija, are there any other matters or order I need to deal with?
5. MS KURBALIJA: No, Your Honour.
6. HIS HONOUR: Once these reasons are revised I will release them to the parties. You may speak to your client on the link. Thank you.

[1] Bugmy v The Queen [2013] HCA 37 ("Bugmy")

[2] R v Verdins [2007] VSCA 102 ('Verdins')

[3] DPP v Herrmann [2021] VSCA 160 ('Herrmann')

[4] Sabatucci v The Queen [2021] VSCA 340

[5] Newton (a pseudonym) v The King [2023] VSCA 22

[6] Dhal v The King [2023] VSCA 289

[7] DPP v Terrick [2009] VSCA 220

[8] Guden v The Queen [2010] VSCA 196

[9] Allouch v The Queen [2018] VSCA 244

[10] Loftus v The Queen [2019] VSCA 24

[11] Hague v The Queen [2022] VSCA 17

[12] DPP v Zhang [2015] VSCA 96

[13] DPP v Meyers [2014] VSCA 314; 44 VR 486 at [48] ('Meyers')