Shane Smythe, you are to be sentenced on one charge of aggravated burglary and one charge of criminal damage. The maximum sentences are 25 years' imprisonment for aggravated burglary and 10 years' imprisonment for criminal damage.
You pleaded guilty before me at the Koori Court in Mildura on 14 March 2025. When interviewed by police on 20 February 2024, the date of your offending, you exercised your right to silence. However, your committal went by hand-up brief on 4 December 2024, which meant no witnesses were called to give evidence, and on that day you pleaded guilty to both charges. The matter was then listed for plea hearing in the Koori County Court.
You receive the benefit of an early plea of guilty. By that, you have accepted responsibility for your offending and expressed remorse. Your plea has facilitated the interests of justice.
Your plea hearing and this sentence have been the subject of a number of delays. On 14 March there was a plea hearing, as stated in the Koori Court. This included a sentencing conversation with elders, Uncle Mark Bland and Uncle Peter Peterson. The matter was adjourned and throughout 2025 there were a number of further adjourned hearings and mentions of the matter.
Mr Singh for the Crown tendered a written summary of prosecution opening. He has provided an outline of plea submissions. Ms Lamovie for you has tendered psychiatric reports of Dr David Weissman, dated 14 December 2018 and 7 February 2020 and 5 March 2020; the neuropsychological report of Dr Robyn Stargatt, dated 31 January 2019; a more recent forensic psychological report of Dr Fiona Morrison, dated 9 April 2025; a letter dated 23 September 2025 by Adam Ormiston of the Dardi Munwurro Aboriginal Healing Behaviour Change program; letters dated 25 August and 4 December 2025 by Blake Pappin of the Mallee District Aboriginal Service, MDAS, its' Koori Mens Diversion program. Mr Pappin attended a number of the hearings. Robin Dini, a MDAS drug and alcohol worker and David Thompson from MDAS have also attended court. Also tendered were a Community Correction progress report by Community Corrections Advanced Aboriginal case manager, Isabella Robertson, dated 24 February 2025, and reports under the CISP, that is Court Integrated Services Program, bail support program dated August to September 2024. Ms Lamovie also provided two written outlines of plea submissions.
In early 2025, Ms Lamovie had asked for a deferral of plea and sentence or flagged submitting that. That is what effectively came to be. Attempts were made during 2025 to assist and give you the opportunity of rehabilitation from drugs and alcohol. Particularly, on 3 October, I varied your bail to undergo detoxification at a community residential unit run by Monash Health in Dandenong and then participation in residential rehabilitation at the Galiamble program.
On 4 December, I was told that you had left the detoxification unit. I adjourned, not rescinding bail, to 16 December. You did not appear on that day. I adjourned to 10 February and directed the issue of a warrant to apprehend you. You were subsequently bailed again. I remanded you for sentence on 18 February.
On 18 February, Ms Lamovie made further submissions and provided a third outline. This has included the following. The explanation for leaving detoxication is the death of an uncle. You returned to Mildura, including for the purpose of cultural ceremonies and duties. Since you have initiated contact with the Percy Green Drug and Alcohol Residential Program in Shepparton. You have, you state, reduced your drug use and have not reoffended since leaving the detoxification at Melbourne. You have reinitiated contact with Blake Pappin at MDAS. There is an offer of employment. You have achieved amicable contact with the mother of your very young daughter and see the child.
Ms Lamovie raised other matters, effectively restating those put earlier; for example, your mental health conditions and symptoms. She raised the cultural context of you leaving detoxification, the cultural and emotional need to be with your family and on country.
You were to be sentenced on 18 and then 19 February, yesterday. Ms Lamovie yesterday put further matters and tendered the letter of Brad Ponting of Ngwala Willumbong. You are now said to be eligible for a place in the drug and alcohol residential rehabilitation program, Yitjawudik, near Shepparton. Today I was told that placement is not imminent, but you are eligible and on a waiting list. Today Ms Lamovie also tendered the letter of Marlon Parsons, dated 19 February 2026.
The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
On the afternoon of 20 July 2024, you were in the company of others, including your mother and then partner, in Robinvale. You were very intoxicated by alcohol and possibly drug use. You left them near the address of your victim, Pei Chung Chan, in Anzac Road. It is said that you wanted to 'fight people' there. The others seemed to have remained nearby. I find that Chan was dealing in drugs and had supplied friends and members of your family. In drink, you had a grievance associated with this. I was told that Chan has since been deported from Australia.
The offence of aggravated burglary is a rolled-up charge reflecting two entries into the house. The aggravation is intent to assault and to cause damage. You entered by removing an air conditioning unit in a window. You went to Chan who had been sleeping and began to punch him. You yelled abuse related to 'your girl.' He ran to the kitchen, told others to call the police and hid under a table. You left but remained in the front garden. You began to smash windows and entered again. Inside, using a stick picked up in the garden, you damaged items including the oven, television and kitchen appliances. Chan remained under the table. You threw a gas bottle against the front door.
Soon after, you were arrested by police and
[2]
'observed to be extremely drug and alcohol affected.'
[3]
No Victim Impact Statement has been tendered; however, it is apparent that Chan and other occupants were very afraid.
You are a 40-year-old man, placed in remand custody to await this sentence. There are now six days of pre-sentence detention.
You are an Aboriginal man of the Wemba Wemba people from south-western New South Wales and north-western Victoria near the Murray River. You have lived mainly in the Mildura and Robinvale area. Your grandmother became a primary carer and she has remained an important figure in your life. You were raised with and close to a slightly older brother, who died tragically in a house fire when you were 18. Another brother, 13 years younger was removed from the family and raised separately.
Your mother drank, used drugs and neglected you. You were the victim of serious violence. This included, when very young, being burnt with cigarettes. You were fed alcohol as a toddler and introduced as a child to drugs. Your father was not consistently in your early life. However, you seem to have maintained a relationship with him. At the time of your plea hearing on 14 March 2025, you were living with him in Mildura. You were living with him more recently just prior to your recent remand.
Your childhood featured neglect, violent abuse, marked instability and abandonment, which perhaps can be seen as the cruellest abuse of a child.
You attended schools widely apart in Robinvale, nearby Euston ,New South Wales; but also in Shepparton and Melbourne. You had learning difficulties at those schools. In Year 9 you began at Koori Open Door Education, presumably the school in Mildura. After school, at Year 10, you worked consistently with an uncle at an irrigation operation in Robinvale. However, in a 2017 motor vehicle accident you received serious injuries, including ruptures to your intestine and bowel, severed arteries in your bowel and head injury. You are diagnosed with a resultant Acquired Brain Injury. It seems the shared expert opinion that you had suffered acquired brain injury arising out of substance abuse when very young and head trauma. This was compounded by the 2017 motor vehicle accident injury. Since that, there has been only sporadic employment, mainly in farm work.
You have had two important relationships, the first lasting 14 years and there being five children. The second has been with a partner who also used drugs and was present at or nearby at the time of offending. There is one child. I am told that this relationship has ended. There is another child recently born. The mother is another person.
Unsurprising in the light of the damaging experience and surroundings of your early childhood you began to regularly use alcohol early. After that, you have used and became also dependent upon drug use. There was particularly alcohol and methylamphetamine in the several months leading to the time of this offending.
You have suffered and continue to suffer multiple mental health conditions. There was a diagnosis of post-traumatic stress disorder arising from your brother's death by fire and also the childhood abuse. The psychiatric and psychological evidence before me consistently states the following diagnoses and conditions derived largely from your life experiences. Post traumatic stress disorder, together with chronic depression and anxiety disorders, traumatic brain injury, evidence of neurocognitive disorder, alcohol and drug dependence disorders.
Neuro-psychologist Dr Stargatt identifies effects of your Acquired Brain Injury including unreliable working memory, deficits in information processing and cognitive disability. There is the prospect that you suffer effects of foetal alcohol syndrome.
In a more recent report, forensic psychologist, Dr Morrison, also diagnoses borderline personality disorder. She states that it is likely that you have suffered foetal alcohol syndrome. She finds that there is a moderate to high risk of violent offending. That now likely diagnosis of foetal alcohol syndrome adds significantly to the mix of conditions relevant to your sentence. At a time when you were engaged with efforts to assist and rehabilitate you, there was also the prospect and some expectation of NDIS funding in support.
In summary, you present at 40 as a seriously damaged person.
It is also perhaps not surprising that you have a significant criminal history. There are multiple prior court appearances running from 2002 when you were 17, to 2022. Offences broadly feature violence, dishonesty, drug possession and use and so-called street offences. There are also offences of breaching family violence intervention orders. There are a number of sentences of imprisonment, thus far quite short. There are a number of community orders. I find it notable that in your first appearance at the Magistrates' Court, at 17, you were sentenced to imprisonment for criminal damage and discharging a missile.
Subsequent to this offending before me, you were placed on a community corrections order for what appears to be violent offending. That was in December 2024. There was a further community corrections order imposed in July 2025 for family violence intervention order offences. There was a period or periods of some compliance with these orders. However, ultimately you have been found not suitable for a further such order. Overall compliance with those 2024/2025 orders is described as poor and superficial.
Aggravated burglary is a serious offence; that is reflected by a very high maximum sentence. Your offending was a sudden, frightening and violent attack upon a home. That your main victim was a drug-trafficker provides essentially no excuse. He was entitled to the safety of that home. It can be said that some of the circumstances (lack of any really apparent planning, a level of spontaneity and that not uncommon criminally sinister motivation is not apparent) are part of the assessment of subjective gravity of offending.
The circumstances of offending together with your criminal history make relevant sentencing considerations and purposes of moral culpability, deterrence (that is both specific and general deterrence) the need to sentence in a way to condemn what you did and proportionally punish you. A sentence of imprisonment is made necessary.
However, there are also important mitigating and moderating factors in your case. They include the following.
[4]
(2) Your personal circumstances and background are important in a number of ways. I agree with the submission that the principles of The Queen v Bugmy and like cases are relevant. Your early life and that since has suffered profound, damaging disadvantage. That is relevant to moderation of moral culpability in the way those cases state. Emphatically, in my view, it goes to explain your early and continuing decline into substance abuse and offending. The effects of your Acquired Brain Injury and other mental health conditions are relevant to consideration of the Bugmy principles. They also stand themselves as moderating factors.
[5]
(3) I find that the range and mix of your mental health conditions and general situation will make imprisonment considerably harder for you.
[6]
(4) The question of your prospects for rehabilitation has been an important aspect of this case. I refer to my earlier brief summary of what was attempted during 2025 after the primary plea hearing in March of that year. There were some positive signs. On my assessment, you participated in that hearing and particularly the sentencing conversation in a way which indicated a desire to deal with your addiction and rehabilitate towards a functional life. There had been some compliance with the existing community correction orders. You seemed supported and engaged in therapeutic drug and alcohol and mental health programs at MDAS and Dardi Munwurro. Evidence tendered indicated positive engagement in those as of mid-2025. There was the prospect of participating in the residential drug and alcohol program at Galiamble. Of perhaps some significance, there was delay in being placed at Galiamble. Ultimately, as I have said, your bail was varied to enable detoxification and entry into the Galiamble program. An earlier community correction progress report, dated 24 February 2025, evidenced that you had been cooperating in the processes necessary for that; albeit that the later assessment report of September, to which I have referred, found you not suitable for a further order.
[7]
As I have set out you left, without, at the time, clear explanation, the detoxification unit. That had occurred by early December. The attempts to assist your rehabilitation, seen as potentially feasible at the March hearing, had on the face of it failed.
As stated earlier, Ms Lamovie has on 18 and 19 February put further matters. I take those into account. There has been the attempt and some steps to resume supports available to you. Your explanation for leaving detoxification is significant. However, ultimately, I have now decided that the only appropriate sentence can be a head and minimum term. The recent circumstances and matters put are relevant to consideration of an appropriately moderated sentence of imprisonment. They are relevant to the setting of a minimum term.
(5) I also see this as a case in which the so-called discretion of mercy has application. As I have described, your life, particularly early life, has been deeply disadvantaged and damaging to you. A merciful sentence is justified because of it. The main hope for your rehabilitation is support on parole as to drug and alcohol addiction, mental health and culturally focused.
I have had reference to current sentencing practices by means of the current Sentence Advisory Council snapshot document. I must also sentence in accordance with my view of the individual circumstances.
This is a difficult sentence and your situation at 40 years seems dire. As I have said, I see no responsibly available sentence but that of imprisonment with a head and minimum term. However, the length of that should be considerably moderated because of the reasons and factors I have identified. Because of those matters, seen in combination, I find that this is a case which justifies an unusually disproportionate minimum term.
Given eligibility for parole in the relatively short term, there may be some hope that you will either, by parole condition, or voluntarily, take up the drug and alcohol rehabilitation and other supports offered to you.
I sentence you as follows, stand up please Mr Smythe.
Charge 1, aggravated burglary. You are sentenced to 14 months' imprisonment.
On Charge 2, criminal damage, you are sentenced to four months imprisonment.
I direct that two months of that be served cumulatively upon the sentence for Charge 1. That is a total effective sentence of 16 months.
I set a minimum term of four months before eligibility for parole. I declare six days of pre-sentence detention.
Under s6AAA I indicate that had you not pleaded guilty, I would have imposed a sentence of two and a half years with a minimum term of 12 months.
Are there other matters, Mr Singh, that I need to deal with.
MR SINGH: No. No, Your Honour, I've just received a note from my instructor. The sound on her machinery wasn't terribly good I gather. Would Your Honour be able to publish your sentencing reasons and provide them to the parties in due course.
HIS HONOUR: Yes. I do that in the normal course, yes.
MR SINGH: Thank you sir. Apart from that, nothing further.
MS LAMOVIE: Your Honour.
HIS HONOUR: Are there other matters.
MS LAMOVIE: Yes, Your Honour, there are custody management issues.
HIS HONOUR: Yes, I was going to raise those with you, but I just want to find out whether the Crown want me to say anything by way of disposal or forfeiture or the like.
MR SINGH: No thank you, Your Honour.
HIS HONOUR: All right, now yes. Now, there are custody management. How can they be best addressed. I am not there and neither are you.
MS LAMOVIE: Well, if they're written, I think if they're written, I suggest Your Honour that if they're written on your notes, they can be addressed and I can see that there's some custody staff there, and so perhaps if that can orally be conveyed to them as well.
HIS HONOUR: Yes. I think I can say this that as I have said, in my sentencing reasons, this person suffers a number of serious mental health conditions, post-traumatic stress disorder, depression, an Acquired Brain Injury, perhaps a borderline personality disorder and also it has been established foetal alcohol syndrome, so he is a very psychologically compromised man. My hope would be that he is seen by medical staff in the very short term when he goes into custody. Does that cover it sufficiently Ms Lamovie.
MS LAMOVIE: I would perhaps also include something with slightly stronger wording that to the extent that you can, if you can direct that whilst he's in the cells in Mildura, he gets seen by a doctor or a nurse, because he hasn't received any of his medications since he's been placed on remand and he suffers from anxiety and depression and he's finding it very difficult to not receive his medication in this context.
HIS HONOUR: I was going to ask you what his medication is. Ms McConaghy might be able to supply a list of that to the custody people there. I repeat this is a vulnerable man, he should see somebody in the very short term in the cells at Mildura.
MS LAMOVIE: And Your Honour, I know that there in the range of just ‑ ‑ ‑
HIS HONOUR: Just let me finish.
MS LAMOVIE: Sorry, Your Honour.
HIS HONOUR: And he should - and steps should be taken to place him back on the medication that he's on if his medications can't be supplied by somebody on his behalf. Yes, Ms Lamovie.
MS LAMOVIE: I know that there's an arrangement with the cells and local medical practitioners. I don't know the name of the practitioner, so my understanding is that those arrangements should be able to be facilitated by the custody, the persons in charge of the cells at Mildura in relation to custody, so I am hopeful that with Your Honour's recommendation that may now occur.
HIS HONOUR: All right. I think the people that have custody of him would understand the importance of this. So, that is what I think, that is what I ask should happen.
MS LAMOVIE: Yes, Your Honour.
HIS HONOUR: Is there anything else that needs to be said or done.
MS LAMOVIE: No, Your Honour.
HIS HONOUR: Yes, all right, good. Thank you. We will turn you off now.